§28.09 State Collection of Support

• Jurisdiction: Washington

§ 28.09 STATE COLLECTION OF SUPPORT

Because your clients are likely to be involved in the state's child support program, it is important to know how DCS works. See § 28.04, above.

[1] State Distribution of Support

Support paid to the WSSR must be distributed to the family or families to whom it is owed. If the obligor has multiple cases and one is a payment services only case, DCS will apply the payment to cases in which DCS is responsible for collection unless the payment identifies the account number of the payment services only case. WAC 388-14A-5000 to -5100. See § 28.04[5], above.

For cases in which DCS is responsible for collection, payment is distributed based on the date the money is received by DCS. 45 C.F.R. § 302.51; WAC 388-14A-5001(3). Failure to make timely and regular monthly payments can cost the child money. For example, if the monthly obligation is $100 and the obligor pays $100 on January 1 and $100 on January 31 (intended for February's obligation), $100 will go to current support and $100 will go to any arrearage.

A support payment is applied to the obligor's current support obligations first. If current support is owed to multiple families, support is paid to each family proportionally based upon the amount of current support owed each family. Once current support is fully satisfied, any additional money is applied to any arrearage and divided among the families based on the proportionate size of the debts, subject to minor exceptions. Finally, support is applied as prepaid support. WAC 388-14A-5002 to -5006, -5008.

Support collected for a family receiving public assistance is retained by the state. WAC 388-14A-5015. See § 28.04[2], above. When a family terminates from public assistance, support collected by DCS will be applied to the family's current support and any debt owed to the family before DCS applies any money to the state's debt. RCW 26.23.035(1)(d); WAC 388-14A-5003 to -5004. The state's debt has priority only when DCS intercepts an income tax refund. See § 28.09[2][e], below.

[2] State Collection Remedies

DCS follows the same procedures and uses the same remedies for both its public assistance and nonassistance cases. Because many of DCS's collection remedies are available only to DCS, this section will describe DCS's remedies.

[a] Court-Ordered Support

When DCS enforces a support order that contains the collection-warning language set forth in RCW 26.23.050, collection is taken without further notice.

Practice Tip: DCS will be able to collect spousal support or judgments entered as part of a contempt or other order without further notice if the order requires payment through the WSSR and includes the collection-warning language set forth in RCW 26.23.050. If either clause is missing, DCS must serve the obligor with notice that the agency will collect the obligation. Because the notice provides for a conference board review or administrative hearing, collection may be delayed.

If the support order does not contain the payroll deduction notice of RCW 26.23.050, DCS will serve a notice of support debt and demand for payment on the obligor before taking collection action. RCW 26.23.060(1)(b); RCW 74.20A.040; WAC 388-14A-3304(1). The notice is a warning to the obligor that collection action is forthcoming.

Caveat: Once the obligor is served by DCS, all support must be paid to DCS or the WSSR. The obligor will not be given credit for support paid directly to the residential parent in public assistance cases. RCW 26.23.050(6); RCW 74.20.101. However, credit can be given for direct payments made in nonassistance cases. RCW 74.20.101(2); WAC 388-14A-1000, -3375.

The debt calculation set forth in the notice of support debt is based on information provided to DCS by the residential parent. If the obligor believes the debt amount is incorrect, the parent should meet with a support enforcement officer and bring proof of child support payments or file an action in court immediately. DCS will credit child support paid before service of the notice upon acceptable proof. The obligor can seek an accounting in superior court. Give notice to the prosecutor for DCS. See § 28.04[1], above. A conference board can be requested pursuant to WAC 388-14A-6400 to -6415. See § 28.09[5], below.

[b] Earnings

DCS can collect up to 50 percent of the obligor's earnings with its notice of payroll deduction. RCW 26.23.060(3). The income withholding order can be issued without prior notice if the support order provides the requisite statutory warning. DCS will issue the income withholding order immediately or after a delinquency occurs based upon the language in the order. The income withholding has priority over any other legal process. RCW 26.23.060(4). The income withholding is terminated when released by DCS, when ordered by the court, or when the employer no longer employs the obligor and no longer possesses earnings owed to the obligor. RCW 26.23.060(10).

The state's employment security records, which report quarterly earnings for individuals based upon their Social Security numbers, are checked against DCS's records. All employers report new hires to DCS within 20 days of hire or rehire. RCW 26.23.040. Therefore, the income withholding order is by far the most common type of collection action taken by DCS.

If the amount withheld by income withholding is more than the obligor can afford, the obligor should contact DCS, provide it with financial information, and request a reduction. DCS will seek payment of current support and a reasonable amount on the arrears. DCS will not agree to collect less than the current support amount. If your client cannot afford to pay current support, a temporary order modifying support must be sought. If the arrearage is substantial, DCS may agree to reduce its collection of the arrearage if the obligor waives the statute of limitations. RCW 74.20A.220.

Defenses that can be raised to contest collection action include the lack of an obligation; exempt property, RCW 26.16.200, WAC 388-14A-6200; wrongful deprivation of custody, RCW 74.20.065, WAC 388-14A-3370(3); or payment. See § 28.11, below. A limited income defense is available in foster care cases. WAC 388-14A-8120(3). Contact DCS and see if it agrees with your position. If not, litigation may be necessary.

[c] Unemployment Compensation

Federal law requires states to have a program to attach unemployment compensation benefits. 42 U.S.C. § 654(19); RCW 74.20A.090. DCS collected more than $49 million from unemployment compensation benefits in 2011.

[d] Workers'...