11.3 Enforcement: Noncontempt Remedies

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

11.3 ENFORCEMENT: NONCONTEMPT REMEDIES

11.301 In General. There are a number of remedies for enforcing support obligations. In addition to a contempt of court proceeding, obligees have traditionally been able to sue to obtain a judgment for the accrued arrearage of support. ⁴⁸ Once a judgment is obtained, the obligee may execute on the judgment using the methods traditionally available to creditors. ⁴⁹ In addition to the traditional remedies available under Virginia law, new remedies were created in response to federal legislation aimed at strengthening the enforcement of support obligations. The Child Support Enforcement Amendments of 1984 and Title IV-D of the Social Security Act ⁵⁰ have had a broad impact on the efforts of all states, including Virginia, to enforce support obligations. In addition, section 20-113 of the Virginia Code allows a court to enter a qualified domestic relations order (QDRO) to enforce a support order by attaching or garnishing any pension, profit-sharing, or deferred compensation plan or retirement benefits. ⁵¹ This type of QDRO is not used to create a property interest or a division of property as would be done pursuant to section 20-107.3. Rather, this type of QDRO is drafted to help secure payment of family support obligations, as authorized by ERISA and state law.

The following paragraphs examine various enforcement tools, including payroll deduction orders, obtaining judgments for arrearages, suspension of professional or occupational licenses, and special remedies available to the Division of Child Support Enforcement (DCSE). ⁵² The DCSE may disclose information to law enforcement agencies in order to enforce a support obliga-tion. ⁵³

11.302 Concurrent Remedies of Obligees and the Division of Child Support Enforcement.

A. In General. Some remedies for the enforcement of support obligations are available both to obligees and to the DCSE. For example, both

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can seek payroll deduction orders, money judgments for arrearages, ⁵⁴ and suspension of professional, trade, recreational, or occupational licenses. ⁵⁵ Both can bring suits to enforce liens and exercise other tools available to creditors. Other remedies, such as suspension of drivers' licenses, interception of state and federal income tax refunds, and the enforcement of administrative liens, are available exclusively to the DCSE.

B. Payroll Deduction. Both the juvenile and domestic relations district court and the circuit court can order an automatic payroll deduction to ensure that a support obligation is fulfilled. ⁵⁶ The order is directed to an obligor's employer, directing the employer to deduct the amount of current support due and an amount to be applied to arrearages, if any. When more than one administrative or judicial payroll deduction order has been entered against an obligor, the employer should prorate the orders based on the current amounts due, with any remaining amounts prorated among the accrued arrearages, if any. ⁵⁷

The court must order a payroll deduction if it has been agreed to in a stipulation or contract signed by the party ordered to pay the support and filed with the pleadings or depositions. The court also must order a payroll deduction where a notice of arrearages has been received in a case in which a support order has been entered pursuant to section 20-60.3. Finally, a court must enter a payroll deduction order after finding that the obligor is in arrears for an amount equal to one month's support obligation. In its discretion, the court may order a payroll deduction based on the obligor's past financial responsibility, history of prior payments pursuant to a support order, or any other matter that the court considers relevant in determining the likelihood of payment or at the request of the obligor. ⁵⁸

A payroll deduction order is entered upon motion, after proper notice to the obligor, except in cases where the obligor and obligee have entered into a stipulation or contract that provides for payroll deduction. The notice requirements are set forth in section 20-79.1(B) of the Virginia Code.

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A motion and notice of proposed income deduction order for support is available from the juvenile and domestic relations district court. ⁵⁹ The appendices to Chapter 6 of this book refer to the income deduction order for support as well as the compliance provisions (income-withholding order). ⁶⁰ These two forms, provided by the Virginia court system, may be used in either the circuit court or the juvenile and domestic relations district court. The income deduction order illustrated in Appendix 2-41 to Chapter 2 of this book may also be consulted.

C. Money Judgment. A support obligation, as it becomes due and unpaid, creates a judgment by operation of law. Entry of an order determining an arrearage constitutes a final judgment. ⁶¹ The 20-year statute of limitations period for enforcement of judgments applies both to liquidated money judgments and to unliquidated ongoing support obligations. Judgments created as a result of failure to make child support payments on the dates ordered are limited in their enforcement to 20 years from the date each such missed payment became a judgment by operation of law. ⁶² A judgment for support arrearages includes an amount for interest at the judgment interest rate unless the obligee waives the collection of interest in a writing submitted to the court. ⁶³ Courts, as well as the DCSE, are authorized to award reasonable attorney fees when the total arrearage for support, excluding interest, is equal to or greater than three months of support. ⁶⁴

D. Suspension of Occupational or Recreational License. Another procedure for enforcing a delinquent child support obligation is to suspend an obligor's occupational or recreational license. Section 63.2-1937 of the Virginia Code permits a court to suspend the license of an obligor who is delinquent in the payment of a child support obligation by 90 days or more or in an amount of $5,000 or more. A court also may suspend the license of an obligor who has failed to comply with a subpoena, summons, or warrant relating to child support or paternity proceedings. The petition seeking...