Chapter 4. Interstate Withholding Act
TITLE 13
Domestic Relations
CHAPTER 4. INTERSTATE WITHHOLDING ACT
§ 401. Purpose and construction; definitions; remedies additional to existing remedies.
(a) The purpose of this chapter is to enhance the enforcement of support obligations by providing a quick and effective procedure for the withholding of income derived in this jurisdiction to enforce support orders of other jurisdictions and by requiring that income withholding, to enforce the support orders of this jurisdiction, be sought in other jurisdictions. This chapter shall be construed liberally to effect that purpose.
(b) As used in this chapter:
(1) "Support order" means a judgment, decree or order, whether temporary, final or subject to modification, for the benefit of a child, a spouse or a former spouse, which provides for monetary support, health care, arrearages or reimbursement, and may include related costs and fees, interest, income withholding, attorney's fees and other relief.
(2) "Jurisdiction" means any state, as that term is defined in § 6-102(21) of this title, or political subdivision, territory or possession of the United States, the District of Columbia and the Commonwealth of Puerto Rico.
(3) "Court" means the Family Court of this State and, when the context requires, means either the court or agency of any other jurisdiction with functions similar to those defined in this chapter, including the issuance and enforcement of support orders.
(4) "Agency" means the Bureau of Child Support Enforcement of this State and, when the context requires, means either the court or agency of any other jurisdiction with functions similar to those defined in this chapter, including the issuance and enforcement of support orders.
(5) "Child" means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is alleged to be the beneficiary of a support order directed to the parent.
(6) "Obligor" means an individual, or the estate of a decedent:
a. Who owes or is alleged to owe a duty of support;
b. Who is alleged but has not been adjudicated to be a parent of a child; or
c. Who is liable under a support order.
(7) "Obligee" means:
a. An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered;
b. A state or political subdivision to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee; or
c. An individual seeking a judgment determining parentage of the individual's child.
(8) "Income" means income as defined in § 513(b)(5) of this title.
(9) "Obligee-employer" means any payor of income.
(10) "Income derived in this jurisdiction" means any income, the payor of which is subject to the jurisdiction of this State for the purpose of imposing and enforcing income withholding under § 513(b) of this title.
(11) "Medical support" means health care costs incurred for and health insurance coverage that is reasonable in cost for the child of an obligor whose support order requires health insurance coverage. Health insurance is considered reasonable in cost if it is employment-related or other group health insurance regardless of service delivery mechanism.
(c) The remedy herein provided is in addition to, and not in substitution for, any other remedy otherwise available to enforce a support order of another jurisdiction. Relief under this chapter shall not be denied, delayed or otherwise affected because of the availability of other remedies, nor shall relief under any other statute be delayed or denied because of the availability of this remedy.
65 Del. Laws, c. 115, § 1; 69 Del. Laws, c. 445, §§ 1, 2; 71 Del. Laws, c. 216, §§ 13-17.;
§ 402. Initiation of income withholding; cooperation with other jurisdictions.
On behalf of any client for whom the Bureau of Child Support Enforcement is already providing services, or on application of a resident of this State, an obligee or obligor of a support order issued by this State, or an agency to whom the obligee has assigned support rights, the Bureau shall promptly request the agency of another jurisdiction in which the obligor of a support order derives income to enter the order for the purpose of obtaining income withholding against such income. The Bureau shall compile and transmit promptly to the agency of the other jurisdiction all documentation required to enter a support order for this purpose. The Bureau also shall transmit immediately to the agency of the other jurisdiction a certified copy of any subsequent modifications of the support order. If the Bureau receives notice that the obligor is contesting income withholding in another jurisdiction, it shall immediately notify the individual obligee of the date, time and place of the hearings and of the obligee's right to attend.
65 Del. Laws, c. 115, § 1.;
§ 403. Entry of support order of another jurisdiction for income withholding.
(a) Upon receiving a support order of another jurisdiction with the documentation specified in subsection (b) of this section from an agency of another jurisdiction, the Bureau of Child Support Enforcement shall file these documents with the Clerk of the Family Court in which withholding is being sought. The Clerk of the Court shall accept the documents filed and such acceptance shall constitute entry of the support order under this chapter.
(b) The following documentation is required for the entry of a support order of another jurisdiction:
(1) A certified copy of the support order with all modifications;
(2) A certified copy of an income withholding order, if any, still in effect;
(3) A copy of the portion of the income withholding statute of the jurisdiction which issued the support order which states the requirements for obtaining income withholding under the law of that jurisdiction;
(4) A sworn statement of the obligee or certified statement of the agency of the arrearages and the assignment of support rights, if any;
(5) A statement of:
a. The name, address and social security number of the obligor, if known;
b. The name and address of the obligor's employer or of any other source of income of the obligor derived in this State against which income withholding is sought; and
c. The name and address of the agency or person to whom support payments collected by income withholding shall be transmitted.
(c) If the documentation received by the Bureau under subsection (a) of this section does not conform to the requirements of subsection (b) of this section, the Bureau shall remedy any defect which it can without the assistance of the requesting agency. If the Bureau is unable to make such corrections, the requesting agency shall immediately be notified of the necessary additions or corrections. In neither case shall the documentation be returned. The Bureau shall accept the documentation required by subsections (a) and (b) of this section even if it is not in the usual form required by state or local rules, so long as the substantive requirements of these subsections are met.
(d) A support order entered under subsection (a) of this section shall be enforceable by income withholding against income derived in this State in the manner and with the effect as set forth in §§ 404 through 411 of this title and § 513(b) of this title. Entry of the order shall not confer jurisdiction on the courts of this State for any purpose other than income withholding.
65 Del. Laws, c. 115, § 1.;
§ 404. Notice of proposed income withholding to obligor.
(a) Upon the commencement of the income withholding, the obligor shall be notified that the withholding has commenced and of the procedures to follow if the obligor desires to contest such withholding on the grounds that the withholding or the amount withheld is improper due to a mistake of fact. This notice shall be in conformity with that required under § 513(b)(2) of this title; provided, however, that the notice shall also advise the obligor that the income withholding was requested on the basis of a support order of another jurisdiction. The date of serving notice on the obligor shall be the basis for measuring time for the obligor to file an affidavit in opposition to the attachment and for holding a hearing and rendering a decision.
(b) Section 513(b)(3) of this title shall apply if the obligor seeks to contest the proposed income withholding; provided, however, that if a hearing is scheduled the Court shall immediately notify the requesting agency of the date, time and place of the hearing and of the obligee's right to attend the hearing.
65 Del. Laws, c. 115, § 1; 71 Del. Laws, c. 216, §§ 18, 19.;
§ 405. Income withholding hearing.
(a) At any hearing contesting proposed income withholding based on a support order entered under § 403 of this title, the entered order, accompanying sworn or certified statement, and a certified copy of an income withholding order, if any, still in effect shall constitute prima facie proof, without further proof or foundation, that the support order is valid, that the amount of current support payments and arrearages is as stated, and that the obligee would be entitled to income withholding under the law of the jurisdiction which issued the support order.
(b) Once a prima facie case has been established, the obligor may raise only those defenses set forth in § 513(b)(3) of this title. The burden shall be on the obligor to establish these defenses.
(c) If the obligor presents evidence which constitutes a full or partial defense, the court shall, on the request of the obligee, continue the case to permit further evidence relative to the defense to be adduced by either party; provided, however, that if the obligor acknowledges liability sufficient to entitle the obligee to income withholding, the court shall require income withholding for the payment of current support payments under the support order and of so much of any arrearages as is not in dispute, while continuing the case with respect to those matters still in dispute. The court shall determine those matters still in dispute as soon as possible, and if appropriate shall modify the withholding order to conform to that resolution.
(d) In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad litem or other representative of the child may adduce testimony of witnesses in another state, including the parties and any of the children, by deposition, by written discovery, by photographic discovery such as videotaped depositions or by personal appearance before the court by telephone or photographic means, or by any other device specified in § 6-316(f) of this title. The court on its own motion may direct that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony shall be taken.
(e) A court of this State may request the appropriate court or agency of another state to hold a hearing to adduce evidence, to permit a deposition to be taken before the court or agency, to order a party to produce or give evidence under other procedures of that state and to forward to the court of this State certified copies of the evidence adduced in compliance with the request.
(f) Upon request of a court or agency of another state, the courts of this State which are competent to hear support matters may order a person in this State to appear at a hearing or disposition before the court to adduce evidence or to produce or give evidence under other procedures available in this State. A certified copy of the evidence adduced, such as a transcript or videotape, shall be forwarded by the Clerk of Court to the requesting court or agency.
(g) A person within this State may voluntarily testify by statement or affidavit in this State for use in a proceeding to obtain income withholding outside this State.
65 Del. Laws, c. 115, § 1; 71 Del. Laws, c. 216, § 20.;
§ 406. Income withholding order.
If the obligor does not request a hearing in the time provided, or if a hearing is held and it is determined that the obligee has or is entitled to income withholding under the local law of the jurisdiction which issued the support order, the court shall issue an income withholding order under § 513(b) of this title. The court shall notify the requesting agency of the date upon which withholding will begin. In cases brought under Title IV, Part D, of the Social Security Act (42 U.S.C. § 651 et seq.), the Division may order income withholding in accordance with § 513(b)(12) of this title, without the necessity of obtaining an order from the Court or any other administrative tribunal.
65 Del. Laws, c. 115, § 1; 71 Del. Laws, c. 216, § 21.;
§ 407. Applicable enforcement provisions.
The provisions of § 513(b)(6) through (11) of this title apply to income withholding based on a support order of another jurisdiction entered under this chapter.
65 Del. Laws, c. 115, § 1.;
§ 408. Distribution of collected support payments.
(a) The income withholding order shall direct payment to be made to the state disbursement unit. The state disbursement unit shall promptly transmit payments received pursuant to an income withholding order based on a support order of another jurisdiction entered under this chapter to the agency or person designated in § 403(b)(5)c. of this title.
(b) A support order entered pursuant to § 403 of this title does not nullify and is not nullified by a support order made by a court of this State pursuant to any other law or by a support order made by a court of any other state. Amounts collected by any withholding of income shall be credited against the amounts accruing or accrued for any period under any support orders issued either by this State or by a sister state.
65 Del. Laws, c. 115, § 1; 71 Del. Laws, c. 216, §§ 22, 23.;
§ 409. Changes in original order or jurisdiction.
(a) The court, upon receiving a certified copy of any amendment or modification to a support order entered pursuant to § 403 of this title, shall amend or modify the income withholding order to conform to the modified support order.
(b) If the Bureau of Child Support Enforcement determines that the obligor has obtained employment in another state or has a new or additional source of income in another state, it shall notify the agency which requested the income withholding of the changes within 5 working days of receiving that information and shall forward to that agency all information it has or can obtain with respect to the obligor's new address and the name and address of the obligor's new employer or other source of income. The Bureau shall include with the notice a certified copy of the income withholding order in effect in this State.
65 Del. Laws, c. 115, § 1.;
§ 410. Voluntary income withholding.
Any person who is the obligor on a support order of another jurisdiction may obtain voluntary income withholding by filing with the court a request for such withholding and a certified copy of the support order of a sister state. The court shall issue an income withholding order under § 513(b) of this title. Payment shall be made to the state disbursement unit.
65 Del. Laws, c. 115, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 216, § 24.;
§ 411. Choice of law.
(a) The law of this State shall apply in all actions and proceedings concerning the issuance, enforcement and duration of income withholding orders issued by a court of this State, which is based upon a support order of another jurisdiction entered pursuant to § 403 of this title, except as provided in subsections (b), (c) and (d) of this section.
(b) The law of the jurisdiction which issued the support order shall govern the following:
(1) The interpretation of the support order entered under § 403 of this title, including amount, form of payment and the duration of support;
(2) The amount of support arrearages necessary to require the issuance of an income withholding order; and
(3) The definition of what costs, in addition to the periodic support obligation, are included as arrearages which are enforceable by income withholding, including but not limited to interest, attorney's fees, court costs and costs of paternity testing.
(c) The court shall apply the statute of limitations for maintaining an action on arrearages of support payments of either the law of this State or of the state which issued the support order entered under this chapter, whichever is longer.
(d) An employer who receives an income withholding order or notice issued by another state shall apply the income withholding law of the state of the obligor's principal place of employment in determining:
(1) The employer's fee for processing the income withholder order;
(2) The maximum amount permitted to be withheld from the obligor's income;
(3) The time periods within which the employer must implement the income withholding order and forward the child support payment;
(4) The priorities for withholding and allocating income for multiple child support obligees; and
(5) Any withholding terms or conditions not specified in the order.
65 Del. Laws, c. 115, § 1; 71 Del. Laws, c. 216, §§ 25, 26.;
§ 412. Employer liability.
An employer who complies with an income withholding notice that is regular on its face shall not be subject to civil liability to any individual or agency for conduct in compliance with the notice.
71 Del. Laws, c. 216, § 27.;