Chapter 25 — Support
Enforcement
2011 EDITION
SUPPORT ENFORCEMENT
PROCEDURE IN CIVIL PROCEEDINGS
GENERAL PROVISIONS
25.010 Definitions
for support enforcement laws
25.011 “Address”
defined
25.015 When
payment on support order begins; determining; notification of date
25.020 When
support payment to be made to Department of Justice; collection agency
services; duties of department; credit for payments not made to department;
rules
25.025 Annual
notice to parties receiving services under ORS 25.020
25.030 When
payment payable to bank account or escrow agent
25.070 Order
may include payment of support enforcement fees; limitation
25.075 Cooperative
agreements with Indian tribes or tribal organizations
25.080 Entity
primarily responsible for support enforcement services; duties; application
fees; rules
25.081 Access
to records with Social Security number
25.082 Administrative
subpoenas; civil penalty; rules
25.083 High-volume
automated administrative enforcement services
25.084 Assignment
of rights or written application required for services; incorporation in
judgment
25.085 Service
on obligee; methods
25.089 Enforcement
and modification of child support judgments
25.091 Multiple
child support judgments
25.100 Transfer
of files to county where party resides or property located
25.110 Jurisdiction
of circuit court in county to which files transferred
25.125 Disposition
of support obligation overpayments; rules
25.130 Election
of alternative support payment method; termination of election
25.140 Copies
of new or modified support orders to department
25.150 Department
to collect fees for services
25.160 Referral
of support cases to department; duration of collection services
25.164 Payment
of support through Department of Justice; application
25.167 Procedure
for determining arrearages
25.170 Proceedings
to require delinquent obligor to appear for examination of financial
circumstances
25.180 Examination
of obligor’s financial circumstances
25.190 Continuance
of proceedings; certification of matter to court; service of notice to obligor
and obligee
25.200 Arrest
of obligor for failure to appear
25.210 Use
of obligor’s property for delinquent support payments
25.213 Assignment
of proceeds of insurance policy to secure support obligation
25.220 Computer
printouts of administrator; evidence of authenticity not required in support
proceedings; evidentiary effect
25.230 Court
authorized to require security for support payments
25.240 Order
to pay support by parent with legal custody of minor
25.243 Grievance
procedure; rules
25.245 Rebuttable
presumption of inability to pay child support when parent receiving certain
assistance payments; rules
25.260 Confidentiality
of records; rules
25.265 Access
to information in Federal Parent Locator Service; rules
FORMULA FOR DETERMINING AMOUNT OF CHILD
SUPPORT
25.270 Legislative
findings
25.275 Formula
for determining child support awards; criteria to be considered; mandated
standards; reduction; rules
25.280 Formula
amount presumed correct; rebuttal of presumption; criteria
25.287 Proceedings
to modify orders to comply with formula; when proceeding may be initiated;
issues considered
25.290 Determining
disposable income of obligor; offsets; rules
MEDICAL SUPPORT
25.321 Definitions
for ORS 25.321 to 25.343
25.323 Medical
support
25.325 Enforcing
medical support; form of notice; rules
25.327 Service
of medical support notice
25.329 Actions
required after service of medical support notice; rules
25.331 Obligation
to withhold
25.333 Contesting
medical support notice
25.335 Termination
of support order
25.337 Liability
25.339 Priority
of medical support notice
25.341 Notice
of termination of employer’s relationship with providing party
25.342 Rules
25.343 Authorization
for reimbursement payments
INCOME WITHHOLDING AND PAYMENT RECORDS
25.372 Applicability
25.375 Priority
of withholding
25.378 Payment
of support by income withholding; initiation of income withholding
25.381 Establishing
income withholding as method of paying support; records
25.384 Statement
on withholding in support order
25.387 Withholding
more than amount authorized by law
25.390 Amendment
of support order not required for withholding
25.393 Remedy
additional to other remedies
25.396 Exception
to withholding; termination of withholding; rules
25.399 Notice
of order to withhold; contents of notice
25.402 Service
of order on withholder; contents
25.405 Contesting
order to withhold; basis
25.408 Withholding
is continuing obligation
25.411 When
withholding begins; payment to Department of Justice or obligee
25.414 Standard
amount to be withheld; processing fee; rules
25.417 Amount
to be withheld when obligor paid more frequently than monthly
25.421 Procedure
if withholder does not withhold support
25.424 Liability
of withholder; action against withholder; penalty; attorney fees; unlawful
employment practice
25.427 Rules
INCOME TAX INTERCEPT
25.610 Procedure
to collect support orders from state tax refunds; voluntary withholding; rules
25.620 Procedures
to collect past due support from state tax refunds; fees
25.625 Federal
tax offset; passport denial; rules
DISCLOSURES OF INFORMATION BY FINANCIAL
INSTITUTIONS
25.640 Definitions
for ORS 25.643 and 25.646
25.643 Disclosure
of information on obligors by financial institutions; fees; liability
25.646 Disclosure
of financial records of customers by financial institutions; liability
CONSUMER REPORTING AGENCIES
25.650 Information
on past due support to consumer reporting agencies; rules
LIENS ON PERSONAL PROPERTY
25.670 Judgment
lien on personal property
25.680 Effect
of lien; priority
25.690 Foreclosure
of lien
MISCELLANEOUS
25.710 Duty
of district attorney
25.715 Child
support paid from security deposit
25.720 When
support assignable
25.725 Child
Support Deposit Fund
25.727 Garnishing
income of person required to provide health insurance for child eligible under
Medicaid
25.729 Application
of laws to effectuate purposes of ORS chapter 110
SUSPENSION OF OCCUPATIONAL AND DRIVER
LICENSES
25.750 Suspension
of licenses, certificates, permits and registrations; when authorized; rules
25.752 Memberships
in professional organizations that are required by state law
25.756 Identifying
persons holding licenses, certificates, permits and registrations
25.759 Notice
to persons subject to suspension; contents
25.762 Agreement
between obligor and administrator; effect of failure to contest suspension or
to enter into agreement
25.765 Procedure
if obligor contacts administrator within time limits; hearing
25.768 Judicial
review of order
25.771 Obligor
holding more than one license, certificate, permit or registration
25.774 Reinstatement
25.777 Reimbursing
issuing entities for costs incurred
25.780 Other
licenses, certificates, permits and registrations subject to suspension
25.783 Confidentiality
of information
25.785 Issuing
entities to require Social Security number
EMPLOYER REPORTING PROGRAM
25.790 Hiring
or rehiring individual; report required; contents
25.792 Confidentiality
25.794 Verification
of employment; information about compensation and benefits; rules
PENALTIES
25.990 Penalties
GENERAL PROVISIONS
25.010 Definitions for support enforcement
laws. As used in ORS chapters 25, 107, 109
and 416 and any other statutes providing for support payments or support
enforcement procedures, unless the context requires otherwise:
(1)
“Administrator” means either the Administrator of the Division of Child Support
of the Department of Justice or a district attorney, or the administrator’s or
a district attorney’s authorized representative.
(2)
“Child” has the meaning given that term in ORS 110.303.
(3)
“Child support rights” means the right to establish or enforce an obligation
imposed or imposable by law to provide support, including but not limited to
medical support as defined in ORS 25.321 and an unsatisfied obligation to
provide support.
(4)
“Department” means the Department of Justice.
(5)
“Disposable income” means that part of the income of an individual remaining
after the deduction from the income of any amounts required to be withheld by
law except laws enforcing spousal or child support and any amounts withheld to
pay medical or dental insurance premiums.
(6)
“Employer” means any entity or individual who engages an individual to perform
work or services for which compensation is given in periodic payments or
otherwise.
(7)
“Income” is any monetary obligation in excess of $4.99 after the fee described
in ORS 25.414 (6) has been deducted that is in the possession of a third party
owed to an obligor and includes but is not limited to:
(a)
Compensation paid or payable for personal services whether denominated as
wages, salary, commission, bonus or otherwise;
(b)
Periodic payments pursuant to a pension or retirement program;
(c)
Cash dividends arising from stocks, bonds or mutual funds;
(d)
Interest payments;
(e)
Periodic payments from a trust account;
(f)
Any program or contract to provide substitute wages during times of
unemployment or disability;
(g)
Any payment pursuant to ORS chapter 657; or
(h)
Amounts payable to independent contractors.
(8)
“Obligee” has the meaning given that term in ORS
110.303.
(9)
“Obligor” has the meaning given that term in ORS 110.303.
(10)
“Order to withhold” means an order or other legal process that requires a
withholder to withhold support from the income of an obligor.
(11)
“Public assistance” has the meaning given that term in ORS 416.400.
(12)
“Withholder” means any person who disburses income and includes but is not
limited to an employer, conservator, trustee or insurer of the obligor. [Formerly
23.760; 1991 c.362 §1; 1993 c.798 §4; 1995 c.608 §1; 1997 c.704 §13; 1999 c.80 §1;
2001 c.334 §2; 2001 c.455 §1; 2003 c.572 §2; 2005 c.560 §1; 2009 c.351 §4]
25.011 “Address” defined.
As used in ORS chapters 25, 106, 107, 108, 109, 110 and 416, when a person is
required to provide an address, “address” means a residence, mailing or contact
address in the same state as the person’s home. [1993 c.448 §1; 1995 c.608 §25]
Note: 25.011
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 25 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
25.015 When payment on support order
begins; determining; notification of date. (1)
The Department of Justice shall notify the parties to a support order that
payment is to commence on the first due date following the date of the notice
when:
(a)
The department receives a copy of a support order of a court that requires
payments to be made through the department or for which there is an application
for support enforcement services;
(b)
The department commences accounting services; and
(c)
The order has been entered within the previous 180 days.
(2)
The department shall include in the notice under subsection (1) of this section
a statement that the department will adjust the account to reflect an accrued
arrearage for the period of time between the effective date of the order and
the date of the notice unless, within 30 days after the date of the notice, a
party requests that the department establish the arrearage on the account as
provided in ORS 25.167 or 416.429.
(3)
If, within 30 days after the date of the notice under subsection (1) of this
section, a party requests the department to establish the arrearage as provided
in ORS 25.167 or 416.429, the department may not reflect an accrued arrearage
on the account until the arrearage has been established.
(4)
If a party does not request the department to establish the arrearage as
provided in subsection (3) of this section, the department shall adjust the
account to reflect the arrearage for the period of time between the effective
date of the order and the date of the notice. [1997 c.500 §2; 1999 c.18 §4;
2011 c.318 §15]
25.020 When support payment to be made to
Department of Justice; collection agency services; duties of department; credit
for payments not made to department; rules. (1)
Support payments for or on behalf of any person that are ordered, registered or
filed under this chapter or ORS chapter 107, 108, 109, 110, 416, 419B or 419C,
unless otherwise authorized by ORS 25.030, shall be made to the Department of
Justice as the state disbursement unit:
(a)
During periods for which support is assigned under ORS 412.024, 418.032,
419B.406 or 419C.597;
(b)
As provided by rules adopted under ORS 180.345, when public assistance is
provided to a person who receives or has a right to receive support payments on
the person’s own behalf or on behalf of another person;
(c)
After the assignment of support terminates for as long as amounts assigned
remain owing;
(d)
For any period during which support enforcement services are provided under ORS
25.080;
(e)
When ordered by the court under ORS 419B.400;
(f)
When a support order that is entered or modified on or after January 1, 1994,
includes a provision requiring the obligor to pay support by income
withholding; or
(g)
When ordered by the court under any other applicable provision of law.
(2)(a)
The Department of Justice shall disburse payments, after lawful deduction of
fees and in accordance with applicable statutes and rules, to those persons and
entities that are lawfully entitled to receive such payments.
(b)
During a period for which support is assigned under ORS 412.024, for an obligee described in subsection (1)(b) of this section, the
department shall disburse to the obligee, from child
support collected each month, $50 for each child up to a maximum of $200 per
family.
(3)(a)
When the administrator is providing support enforcement services under ORS
25.080, the obligee may enter into an agreement with
a collection agency, as defined in ORS 697.005, for assistance in collecting
child support payments.
(b)
The Department of Justice:
(A)
Shall disburse support payments, to which the obligee
is legally entitled, to the collection agency if the obligee
submits the completed form referred to in paragraph (c)(A) of this subsection
to the department;
(B)
May reinstate disbursements to the obligee if:
(i) The obligee requests that
disbursements be made directly to the obligee;
(ii)
The collection agency violates any provision of this subsection; or
(iii)
The Department of Consumer and Business Services notifies the Department of
Justice that the collection agency is in violation of the rules adopted under
ORS 697.086;
(C)
Shall credit the obligor’s account for the full amount of each support payment
received by the department and disbursed to the collection agency; and
(D)
Shall develop the form referred to in paragraph (c)(A) of this subsection,
which shall include a notice to the obligee printed
in type size equal to at least 12-point type that the obligee
may be eligible for support enforcement services from the department or the
district attorney without paying the interest or fee that is typically charged
by a collection agency.
(c)
The obligee shall:
(A)
Provide to the department, on a form approved by the department, information
about the agreement with the collection agency; and
(B)
Promptly notify the department when the agreement is terminated.
(d)
The collection agency:
(A)
May provide investigative and location services to the obligee
and disclose relevant information from those services to the administrator for
purposes of providing support enforcement services under ORS 25.080;
(B)
May not charge interest or a fee for its services exceeding 29 percent of each
support payment received unless the collection agency, if allowed by the terms
of the agreement between the collection agency and the obligee,
hires an attorney to perform legal services on behalf of the obligee;
(C)
May not initiate, without written authorization from the administrator, any
enforcement action relating to support payments on which support enforcement
services are provided by the administrator under ORS 25.080; and
(D)
Shall include in the agreement with the obligee a
notice printed in type size equal to at least 12-point type that provides
information on the fees, penalties, termination and duration of the agreement.
(e)
The administrator may use information disclosed by the collection agency to
provide support enforcement services under ORS 25.080.
(4)
The Department of Justice may immediately transmit to the obligee
payments received from any obligor without waiting for payment or clearance of
the check or instrument received if the obligor has not previously tendered any
payment by a check or instrument that was not paid or was dishonored.
(5)
The Department of Justice shall notify each obligor and obligee
by mail when support payments shall be made to the department and when the
obligation to make payments in this manner shall cease.
(6)(a)
The administrator shall provide information about a child support account
directly to a party to the support order regardless of whether the party is
represented by an attorney. As used in this subsection, “information about a
child support account” means the:
(A)
Date of issuance of the support order.
(B)
Amount of the support order.
(C)
Dates and amounts of payments.
(D)
Dates and amounts of disbursements.
(E)
Payee of any disbursements.
(F)
Amount of any arrearage.
(G)
Source of any collection, to the extent allowed by federal law.
(b)
Nothing in this subsection limits the information the administrator may provide
by law to a party who is not represented by an attorney.
(7)
Any pleading for the entry or modification of a support order must contain a
statement that payment of support under a new or modified order will be by
income withholding unless an exception to payment by income withholding is
granted under ORS 25.396.
(8)(a)
Except as provided in paragraphs (d) and (e) of this subsection, a judgment or
order establishing paternity or including a provision concerning support must
contain:
(A)
The residence, mailing or contact address, Social Security number, telephone
number and driver license number of each party;
(B)
The name, address and telephone number of all employers of each party;
(C)
The names and dates of birth of the joint children of the parties; and
(D)
Any other information required by rule adopted by the Chief Justice of the
Supreme Court under ORS 1.002.
(b)
The judgment or order shall also include notice that the obligor and obligee:
(A)
Must inform the court and the administrator in writing of any change in the
information required by this subsection within 10 days after the change; and
(B)
May request that the administrator review the amount of support ordered after
three years, or such shorter cycle as determined by rule of the Department of
Justice, or at any time upon a substantial change of circumstances.
(c)
The administrator may require of the parties any additional information that is
necessary for the provision of support enforcement services under ORS 25.080.
(d)(A)
Upon a finding, which may be made ex parte, that the health, safety or liberty
of a party or child would unreasonably be put at risk by the disclosure of
information specified in this subsection or by the disclosure of other
information concerning a child or party to a paternity or support proceeding or
if an existing order so requires, a court or administrator or administrative
law judge, when the proceeding is administrative, shall order that the
information not be contained in any document provided to another party or otherwise
disclosed to a party other than the state.
(B)
The Department of Justice shall adopt rules providing for similar
confidentiality for information described in subparagraph (A) of this paragraph
that is maintained by an entity providing support enforcement services under
ORS 25.080.
(e)
The Chief Justice of the Supreme Court may, in consultation with the Department
of Justice, adopt rules under ORS 1.002 to designate information specified in
this subsection as confidential and require that the information be submitted
through an alternate procedure to ensure that the information is exempt from
public disclosure under ORS 192.502.
(9)(a)
Except as otherwise provided in paragraph (b) of this subsection, in any
subsequent child support enforcement action, the court or administrator, upon a
showing of diligent effort made to locate the obligor or obligee,
may deem due process requirements to be met by mailing notice to the last-known
residential, mailing or employer address or contact address as provided in ORS
25.085.
(b)
Service of an order directing an obligor to appear in a contempt proceeding is
subject to ORS 33.015 to 33.155.
(10)
Subject to ORS 25.030, this section, to the extent it imposes any duty or
function upon the Department of Justice, shall be deemed to supersede any
provisions of ORS chapters 107, 108, 109, 110, 416, 419A, 419B and 419C that
would otherwise impose the same duties or functions upon the county clerk or
the Department of Human Services.
(11)
Except as provided for in subsections (12), (13) and (14) of this section,
credit may not be given for payments not made to the Department of Justice as
required under subsection (1) of this section.
(12)
The Department of Justice shall give credit for payments not made to the
department:
(a)
When payments are not assigned to this or another state and the obligee and obligor agree in writing that specific payments
were made and should be credited;
(b)
When payments are assigned to the State of Oregon, the obligor and obligee make sworn written statements that specific
payments were made, canceled checks or other substantial evidence is presented
to corroborate their statements and the obligee has
been given prior written notice of any potential criminal or civil liability
that may attach to an admission of the receipt of assigned support;
(c)
When payments are assigned to another state and that state verifies that
payments not paid to the department were received by the other state; or
(d)
As provided by rule adopted under ORS 180.345.
(13)
An obligor may apply to the Department of Justice for credit for payments made
other than to the Department of Justice. If the obligee
or other state does not provide the agreement, sworn statement or verification
required by subsection (12) of this section, credit may be given pursuant to
order of an administrative law judge assigned from the Office of Administrative
Hearings after notice and opportunity to object and be heard are given to both
obligor and obligee. Notice shall be served upon the obligee as provided by ORS 25.085. Notice to the obligor
may be by regular mail at the address provided in the application for credit. A
hearing conducted under this subsection is a contested case hearing and ORS
183.413 to 183.470 apply. Any party may seek a hearing de novo in the circuit
court.
(14)
Nothing in this section precludes the Department of Justice from giving credit
for payments not made to the department when there has been a judicially
determined credit or satisfaction or when there has been a satisfaction of
support executed by the person to whom support is owed.
(15)
The Department of Justice shall adopt rules that:
(a)
Direct how support payments that are made through the department are to be
applied and disbursed; and
(b)
Are consistent with federal regulations. [Formerly 23.765; 1991 c.724 §19; 1993
c.33 §366; 1993 c.448 §2; 1993 c.596 §1; 1995 c.608 §2; 1997 c.704 §14; 1999
c.18 §1; 1999 c.80 §42; 1999 c.798 §1; 2001 c.322 §1; 2001 c.455 §§2,3; 2001
c.961 §1; 2003 c.73 §17a; 2003 c.75 §23; 2003 c.380 §§6,7; 2003 c.421 §§1,2;
2003 c.572 §3; 2003 c.576 §§292,293a; 2005 c.561 §2; 2007 c.861 §10; 2007 c.878
§1; 2009 c.352 §3]
25.025 Annual notice to parties receiving services
under ORS 25.020. Once each year, the Department
of Justice shall notify the parties in child support cases receiving services
under ORS 25.020 of all the following:
(1)
When physical custody of a child changes from the obligee
to the obligor, the obligation to pay child support for the child is not
automatically terminated.
(2)
When a physical change of custody of a child occurs, either party may request a
modification of the support order to terminate support based on a substantial
change of circumstances.
(3)
At the request of either party, child support may be established for the parent
with current physical custody of the child.
(4)
If a change in the physical custody of a child is temporary, the obligee may satisfy support accruing for the child for
periods that the child is in the physical custody of the obligor as provided in
ORS 18.225, 18.228, 18.232 and 18.235. [1997 c.385 §4; 2003 c.73 §18; 2003
c.576 §575]
Note: 25.025
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 25 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
25.030 When payment payable to bank
account or escrow agent. (1) Support orders in respect of
obligees not subject to ORS 25.020 may provide for
payment under the order to a checking or savings account or by electronic
transfer to an account maintained by an escrow agent, licensed under ORS
696.511, for distribution to the obligee, if the
obligor and obligee have so elected or if the court
in its discretion believes that payment to a checking or savings account or
payment by electronic transfer to an account maintained by a licensed escrow
agent will be in the best interest of the parties.
(2)
Subsection (1) of this section applies only if an election has been made as
provided in ORS 25.130. [Formerly 23.767; 1989 c.976 §36; 1991 c.230 §32; 1997
c.872 §4; 1999 c.80 §78; 2003 c.210 §1]
25.040
[Formerly 23.775; 1993 c.33 §281; 1993 c.448 §3; repealed by 1999 c.80 §95]
25.050
[Formerly 23.777; 1989 c.633 §4; 1989 c.726 §4; 1991 c.519 §1; repealed by 1993
c.798 §21]
25.060
[Formerly 23.780; repealed by 1999 c.80 §95]
25.070 Order may include payment of
support enforcement fees; limitation. Any judgment
or order entered in a proceeding for the enforcement of any delinquent support
obligation, including an order entered under ORS 25.378, shall include, on the
motion of the Division of Child Support of the Department of Justice or the
district attorney, if either has appeared in the case, an order for payment of
any support enforcement fees required by law in addition to any other costs
chargeable to the obligor, and in addition to the support obligation. The
Department of Justice shall deduct the amount of any previously imposed support
enforcement fees from any payment subsequently made by the obligor but the
amount of the deduction shall not exceed 25 percent of any payment. The support
enforcement fee, when collected, shall be paid to the Division of Child Support
of the Department of Justice or the district attorney, whichever appeared in
the case. [Formerly 23.787; 1993 c.798 §34; 1997 c.704 §15; 1999 c.80 §79; 2003
c.576 §294]
25.075 Cooperative agreements with Indian
tribes or tribal organizations. (1)
Notwithstanding the provisions of ORS 25.080, the Department of Justice may
enter into cooperative agreements with Indian tribes or tribal organizations
within the borders of this state, if the Indian tribe or tribal organization
demonstrates that the tribe or organization has an established tribal court
system or a Court of Indian Offenses with the authority to:
(a)
Establish paternity;
(b)
Establish, modify and enforce support orders; and
(c)
Enter support orders in accordance with child support guidelines established by
the tribe or organization.
(2)
The agreements must provide for the cooperative delivery of child support
enforcement services and for the forwarding of all child support collections
pursuant to the functions performed by the tribe or organization to the
department, or conversely, by the department to the tribe or organization,
which shall distribute the child support collections in accordance with the
agreement. [1997 c.746 §131; 1999 c.735 §5; 2003 c.73 §19]
Note: 25.075
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 25 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
25.080 Entity primarily responsible for
support enforcement services; duties; application fees; rules.
(1) The following entity is primarily responsible for providing the support
enforcement services described in subsection (4) of this section when an
application as described in ORS 25.084 is made, or when an assignment of
support rights is made to the state:
(a)
The Division of Child Support of the Department of Justice:
(A)
If support rights are, or were within the past five months, assigned to this or
another state; or
(B)
In any case where arrearage under a support order is assigned or owed to or the
right to recover back support or state debt is held by this state or another
state.
(b)
Except as provided in subsection (6) of this section, the district attorney in
cases other than those described in paragraph (a) of this subsection if an
application as described in ORS 25.084 is made by the obligee,
by the obligor, by a person having physical custody of a minor child or by a
child attending school, as defined in ORS 107.108.
(2)
The provisions of this section apply to support enforcement services for any
order or judgment that is or could be entered under ORS 419B.400 or 419C.590 or
ORS chapter 107, 108, 109, 110 or 416. The entity specified in subsection (1)
of this section shall provide the support enforcement services on behalf of the
State of Oregon and not on behalf of any other party or on behalf of a parent.
The Department of Justice shall adopt rules addressing the provision of support
enforcement services when the purposes of the state in providing those services
may be contradictory in individual cases.
(3)
Notwithstanding the division of responsibility for providing support
enforcement services between the Division of Child Support and the district
attorney as described in subsection (1) of this section, provision of support
enforcement services may not be challenged on the basis that the entity
providing the services in a particular case is not the entity responsible for
the case under subsection (1) of this section.
(4)
When responsible for providing support enforcement services and there is
sufficient evidence available to support the action to be taken, the entity
described in subsection (1) of this section:
(a)
Shall establish and enforce any child support obligation;
(b)
Shall establish paternity;
(c)
Shall enforce spousal support when the obligee is
living with the obligor’s child for whom support enforcement services are being
provided and those services are funded in part by federal moneys;
(d)
May enforce any other order or judgment for spousal support;
(e)
Shall, on behalf of the state, initiate and respond to child support
modification proceedings based upon a substantial change of circumstances;
(f)
Shall, on behalf of the state, initiate and respond to child support
modification proceedings based upon a modification conducted under ORS 25.287
concerning existing child support orders;
(g)
Shall establish and enforce obligations to provide medical insurance coverage
for dependent children;
(h)
Shall ensure compliance with the provisions of 42 U.S.C. 651 to 669 and 45
C.F.R. Chapter III as authorized by state law;
(i) Shall carry out the policy of the State of Oregon
regarding child support obligations as expressed in ORS 416.405; and
(j)
Shall ensure that child support orders are in compliance with the formula
established by this chapter.
(5)
In any proceeding under subsection (4) of this section, the parties are those
described in ORS 416.407.
(6)
The district attorney of any county and the department may provide by agreement
for assumption by the Division of Child Support of the functions of the district
attorney under subsection (1) of this section or for redistribution between the
district attorney and the Division of Child Support of all or any portion of
the duties, responsibilities and functions set forth in subsections (1) and (4)
of this section.
(7)
All county governing bodies and all district attorneys shall enter into child
support cooperative agreements with the department. The following apply to this
subsection:
(a)
The agreements shall contain appropriate terms and conditions sufficient for
the state to comply with all child support enforcement service requirements
under federal law; and
(b)
If this state loses any federal funds due to the failure of a county governing
body or district attorney to either enter into an agreement under this
subsection or to provide sufficient support enforcement service, the county
shall be liable to the department for, and the liability shall be limited to,
the amount of money the state determines it lost because of the failure. The
state shall offset the loss from any moneys the state is holding for or owes
the county or from any moneys the state would pay to the county for any
purpose.
(8)
The Department of Justice shall enter into an agreement with the Oregon
District Attorneys Association to establish a position or positions to act as a
liaison between the Division of Child Support and those district attorneys who
provide support enforcement services under this section. The department shall
fund the position or positions. The Oregon District Attorneys Association shall
administer the liaison position or positions under the agreement. The liaison
shall work to:
(a)
Enhance the participation and interaction of the district attorneys in the
development and implementation of Child Support Program policies and services;
and
(b)
Increase the effectiveness of child support enforcement services provided by
the district attorneys.
(9)
The district attorney or the Division of Child Support, whichever is
appropriate, shall provide the services specified in subsections (1) and (4) of
this section to any applicant, but may in their discretion, upon a
determination and notice to the applicant that the prospect of successful
recovery from the obligor of a portion of the delinquency or future payments is
remote, require payment to the district attorney or the Division of Child
Support of an application fee, in accordance with an application fee schedule
established by rule by the department. If service performed results in the
district attorney or the Division of Child Support recovering any support
enforcement fees, the fees shall be paid to the applicant in an amount equal to
the amount of the application fee.
(10)
An obligee may request the Division of Child Support
or a district attorney to cease all collection efforts if it is anticipated
that physical or emotional harm will be caused to the parent or caretaker
relative or the child for whom support was to have been paid. The department,
by rule, shall set out the circumstances under which such requests shall be honored.
[Formerly 23.790; 1991 c.758 §1; 1993 c.33 §367; 1995 c.608 §9; 1997 c.704 §16;
2001 c.900 §236; 2003 c.73 §20; 2003 c.576 §295; 2005 c.560 §2; 2009 c.352 §4]
25.081 Access to records with Social
Security number. (1) Notwithstanding any other
provision of law, an entity providing support enforcement services under ORS
25.080 shall have access, using a Social Security number as an identifier, to
any record required by law to contain the Social Security number of an
individual.
(2)
To the maximum extent feasible, a public body maintaining records described in
ORS 25.785, including automated records, shall make the records accessible by
Social Security number for purposes of support enforcement.
(3)
For purposes of this section, “public body” has the meaning given that term in
ORS 192.410. [1997 c.746 §118]
Note: 25.081
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 25 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
25.082 Administrative subpoenas; civil
penalty; rules. (1) When services are being
provided under Title IV-D of the Social Security Act, the enforcing agency of
this or any other state may subpoena financial records and other information
needed to establish paternity or to establish, modify or enforce a support
order. The subpoena may be served on a party or on a public or private entity.
Service of the subpoena may be by certified mail.
(2)
A party or public or private entity that discloses information to the enforcing
agency in compliance with a subpoena served under subsection (1) of this
section is not liable to any person for any loss, damage or injury arising out
of the disclosure.
(3)
Upon request of an enforcing agency of another state, only a court or enforcing
agency of Oregon may enforce a subpoena issued by the enforcing agency of the
other state.
(4)
Notwithstanding ORS 192.600, a party or public or private entity that fails
without good cause to comply with a subpoena issued under this section is
subject to a civil penalty not to exceed $250. A civil penalty under this
section must be imposed in the manner provided by ORS 183.745.
(5)
The Department of Justice shall adopt rules to implement the provisions of this
section. [1997 c.746 §33; 2003 c.73 §21]
Note: 25.082
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 25 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
25.083 High-volume automated administrative
enforcement services. (1) As necessary to meet the
requirements of 42 U.S.C. 666(a)(14), the Division of Child Support of the
Department of Justice, when requested by another state, shall provide
high-volume automated administrative enforcement services. In providing
services to another state under this section, the division may:
(a)
Through automated data matches with financial institutions and other entities
where assets may be found, identify assets owned by persons who owe child
support in other states; and
(b)
Seize such assets by execution as defined in ORS 18.005 or by such other
processes to seize property as the division is authorized by law to use.
(2)
A request by another state for services provided under subsection (1) of this
section:
(a)
Must include information, as required by rule, that will enable the department
to compare the information about the case with information in databases within
Oregon; and
(b)
Constitutes a certification by the state requesting the services:
(A)
Of the amount of periodic support under an order, the payment of which is in
arrears; and
(B)
That it has complied with all procedural due process requirements applicable to
the case.
(3)
The administrator is authorized to request from other states services of the
type provided under subsection (1) of this section. [1999 c.930 §2; 2001 c.249 §71;
2003 c.576 §576]
25.084 Assignment of rights or written
application required for services; incorporation in judgment.
(1) The administrator may provide support enforcement services as described in
ORS 25.080 only if support rights have been assigned to the state or if a
person has provided a written application to the administrator that:
(a)
Is signed by the person;
(b)
Includes the last-known addresses of the obligor and the obligee;
and
(c)
Indicates that the person is applying for child support services.
(2)
Any support judgment that provides for payment to the Department of Justice
under ORS 25.020 may have an application incorporated in the judgment. [2009
c.352 §2; 2011 c.318 §5]
Note: 25.084
was added to and made a part of ORS chapter 25 by legislative action but was
not added to any smaller series therein. See Preface to Oregon Revised Statutes
for further explanation.
25.085 Service on obligee;
methods. (1) In any proceeding under ORS 25.080,
service of legal documents upon an obligee may be by
regular mail to the address at which the obligee
receives public assistance, to an address provided by the obligee
on the obligee’s application for child support
enforcement services or to any other address given by the obligee.
When service is authorized by regular mail under this section, proof of service
may be by notation upon the computerized case record made by the person making
the mailing. The notation must set forth the address to which the documents
were mailed, the date they were mailed, the description of the documents mailed
and the name of the person making the notation. If the documents are returned
by the postal service as undeliverable as addressed, that fact must be noted on
the computerized case record. If no new address for service by regular mail can
be obtained, service must be by certified mail, return receipt requested, by
personal service upon the obligee, or by any other
mail service with delivery confirmation.
(2)
Notwithstanding any other provision of this chapter or ORS chapter 110 or 416,
when a case is referred to this state by a public child support agency of
another state for action in this state, there is no requirement that an obligee, present in the initiating state and receiving
child support enforcement services from that state, be served in any action
taken in this state as a consequence of the interstate referral. In such cases
the requirement to serve the obligee that would
otherwise apply is satisfied by sending to the initiating agency in the other
state, by regular mail, any documents that would otherwise be served upon the obligee.
(3)
The appropriate child support agency of the state shall make any mailings to or
service upon the obligee that is required by this
section. [1993 c.596 §17; 1995 c.608 §26; 1997 c.249 §16; 1999 c.87 §1; 2003
c.572 §4; 2011 c.318 §8]
Note: 25.085
was added to and made a part of ORS chapter 25 by legislative action but was
not added to any smaller series therein. See Preface to Oregon Revised Statutes
for further explanation.
25.089 Enforcement and modification of
child support judgments. (1) As used in this section, “child
support judgment” means the terms of a judgment or order of a court, or an
order that has been filed under ORS 416.440, that provide for past or current
child support, including medical support as defined in ORS 25.321. “Child
support judgment” does not include any term of a judgment or order that deals
with matters other than child support.
(2)(a)
A child support judgment originating under ORS 416.440 has all the force,
effect and attributes of a circuit court judgment. The judgment lien created by
a child support judgment originating under ORS 416.440 applies to all
arrearages owed under the underlying order from the date the administrator or
administrative law judge entered, filed or registered the underlying order
under ORS 416.400 to 416.465 or ORS chapter 110.
(b)
Until the underlying order is filed under ORS 416.440, the order may not be
enforced against and has no lien effect on real property.
(c)
No action to enforce a child support judgment originating under ORS 416.440 may
be taken while the child support judgment is stayed under ORS 416.427, except
as permitted in the order granting the stay.
(3)
In any judicial or administrative proceeding in which child support may be
awarded under this chapter or ORS chapter 107, 108, 109, 110 or 416 or ORS
125.025, 419B.400 or 419C.590, if a child support judgment already exists with
regard to the same obligor and child:
(a)
A court may only enforce the existing child support judgment, modify the
existing child support judgment as specifically authorized by law or set aside
the existing child support judgment under subsection (6) of this section or
under the provisions of ORCP 71. If the court sets aside the existing child
support judgment, the court may issue a new child support judgment.
(b)
The administrator or administrative law judge may only enforce the existing
child support judgment, modify the existing child support judgment as
specifically authorized by law or, with regard to an existing child support
judgment originating under ORS 416.400, move to set aside the existing child
support judgment under subsection (6) of this section or for the reasons set
out in ORCP 71.
(4)
If the administrator or administrative law judge finds that there exist two or
more child support judgments involving the same obligor and child and the same
period of time, the administrator or administrative law judge shall apply the
provisions of ORS 416.448.
(5)(a)
If the court finds that there exist two or more child support judgments
involving the same obligor and child and the same period of time, and each
judgment was issued in this state, the court shall apply the provisions of ORS
25.091 to determine the controlling terms of the child support judgments and to
issue a governing child support judgment as defined in ORS 25.091.
(b)
If the court finds that there exist two or more child support judgments
involving the same obligor and child and the same period of time, and one or
more of the judgments was issued by a tribunal of another state, the court
shall apply the provisions of ORS chapter 110 to determine which judgment is
the controlling child support order.
(6)
Subject to the provisions of subsection (3) of this section, a court may modify
or set aside a child support judgment issued in this state when:
(a)
The child support judgment was issued without prior notice to the issuing
court, administrator or administrative law judge that:
(A)
There was pending in this state or any other jurisdiction any type of support
proceeding involving the child; or
(B)
There existed in this state or any other jurisdiction another child support
judgment involving the child; or
(b)
The child support judgment was issued after another child support judgment, and
the later judgment did not enforce, modify or set aside the earlier judgment in
accordance with this section.
(7)
When modifying a child support judgment, the court, administrator or
administrative law judge shall specify in the modification judgment the effects
of the modification on the child support judgment being modified. [2003 c.146 §2;
2003 c.576 §298a; 2005 c.22 §14; 2009 c.351 §5]
Note: 25.089
and 25.091 were added to and made a part of ORS chapter 25 by legislative
action but were not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
25.090
[Formerly 23.790; repealed by 1999 c.80 §95]
25.091 Multiple child support judgments.
(1) As used in this section:
(a)
“Child support judgment” has the meaning given that term in ORS 25.089.
(b)
“Governing child support judgment” means a child support judgment issued in
this state that addresses child support, including medical support as defined
in ORS 25.321, and is entitled to exclusive prospective enforcement or
modification with respect to any earlier child support judgment issued in this
state.
(2)
Notwithstanding any other provision of this section or ORS 25.089, when two or
more child support judgments exist involving the same obligor and child and one
or more of the judgments was issued by a tribunal of another state, the court
shall apply the provisions of ORS chapter 110 before enforcing or modifying a
judgment under this section or ORS 25.089.
(3)
When two or more child support judgments exist involving the same obligor and
child and the same period, any party to one or more of the child support
judgments or the administrator, under ORS 416.448, may file a petition with the
court for a governing child support judgment under this section. When a matter
involving a child is before the court and the court finds that two or more child
support judgments exist involving the same obligor and child and the same
period, the court on its own motion, and after notice to all affected parties,
may determine the controlling terms of the child support judgments and issue a
governing child support judgment under this section.
(4)(a)
Except as provided in paragraph (b) of this subsection, when two or more child
support judgments exist involving the same obligor and child and the same
period, and each judgment was issued in this state, there is a presumption that
the terms of the last-issued child support judgment are the controlling terms
and terminate contrary terms of each earlier-issued child support judgment.
(b)
If the earlier-issued child support judgment requires provision of a specific
type of child support and the last-issued child support judgment is silent with
respect to that type of child support, the requirement of the earlier-issued
child support judgment continues in effect.
(5)
A party may rebut the presumption in subsection (4) of this section by showing
that:
(a)
The last-issued child support judgment should be set aside under the provisions
of ORCP 71;
(b)
The last-issued child support judgment was issued without prior notice to the
issuing court, administrator or administrative law judge that:
(A)
There was pending in this state or any other jurisdiction any type of support
proceeding involving the child; or
(B)
There existed in this state or any other jurisdiction another child support
judgment involving the child; or
(c)
The last-issued child support judgment was issued after an earlier child
support judgment and did not enforce, modify or set aside the earlier child
support judgment in accordance with ORS 25.089.
(6)
When a court finds that two or more child support judgments exist involving the
same obligor and child and the same period, and each child support judgment was
issued in this state, the court shall set the matter for hearing to determine
the controlling terms of the child support judgments. When the child support
judgments were issued in different counties of this state, the court may cause
the records from the original proceedings to be transmitted to the court in
accordance with ORS 25.100.
(7)
Following a review of each child support judgment and any other evidence
admitted by the court:
(a)
The court shall apply the presumption in subsection (4) of this section, unless
the presumption is rebutted, and shall determine the controlling terms of the
child support judgments; and
(b)
Notwithstanding ORS 25.089 (3), the court shall issue a governing child support
judgment addressing child support, including medical support as defined in ORS
25.321, for the benefit of the child.
(8)
The governing child support judgment must include:
(a)
A reference to each child support judgment considered and a copy of the
judgment;
(b)
A determination of which terms regarding child support, including medical
support as defined in ORS 25.321, are controlling and which child support
judgment or judgments contain those terms;
(c)
An affirmation, termination or modification of the terms regarding child
support, including medical support as defined in ORS 25.321, in each of the
child support judgments;
(d)
Except as provided in subsection (9) of this section, a reconciliation of any
child support arrears or credits under all of the child support judgments; and
(e)
The effective date of each controlling term and the termination date of each noncontrolling term in each of the child support judgments.
In determining these dates, the court may apply the following:
(A)
A controlling term is effective on the date specified in the child support
judgment containing that term or, if no date is specified, on the date the
child support judgment was entered as described in ORS 18.075.
(B)
A noncontrolling term is terminated on the date the
governing child support judgment is entered as described in ORS 18.075.
(9)
The court may order the parties, in a separate proceeding under ORS 25.167 or
416.429, to reconcile any child support arrears or credits under all of the
child support judgments.
(10)
When the governing child support judgment is entered as described in ORS
18.075, the noncontrolling terms of each earlier
child support judgment are terminated. However, subject to subsection (11) of this
section, the entry of the governing child support judgment does not affect any
child support payment arrearage or any liability related to medical support, as
defined in ORS 25.321, that has accrued under a child support judgment before
the governing child support judgment is entered.
(11)
For purposes of reconciling any child support arrears or credits under all of
the child support judgments, amounts collected and credited for a particular
period under one child support judgment must be credited against the amounts
accruing or accrued for the same period under any other child support judgment.
(12)
Not sooner than 30 days and not later than 60 days after entry of the governing
child support judgment, a party named by the court, or the petitioner if the
court names no other party, shall file a certified copy of the governing child
support judgment with each court or the administrator that issued an earlier
child support judgment. A party who fails to file a certified copy of the
governing child support judgment as required by this subsection is subject to
monetary sanctions, including but not limited to attorney fees, costs and
disbursements. A failure to file does not affect the validity or enforceability
of the governing child support judgment.
(13)
This section applies to any judicial proceeding in which child support may be
awarded or modified under this chapter or ORS chapter 107, 108, 109 or 416 or
ORS 125.025, 419B.400, 419B.923, 419C.590 or 419C.610. [2003 c.146 §3; 2005
c.22 §15; 2005 c.83 §2; 2009 c.351 §6]
Note: See
note under 25.089.
Note:
Section 1, chapter 83, Oregon Laws 2005, provides:
Sec. 1. (1) As
used in this section:
(a)
“Administrator” has the meaning given that term in ORS 25.010.
(b)
“Child support judgment” has the meaning given that term in ORS 25.089.
(2)
Notwithstanding the provisions of ORS 25.089, 25.091 and 416.448 to the
contrary, the monetary support terms of a child support judgment originating
under ORS 416.440 are terminated by the monetary support terms of a later-issued
child support judgment of a court if:
(a)
The two child support judgments involve the same obligor and child and the same
period;
(b)
The administrator was providing services under ORS 25.080;
(c)
The later-issued child support judgment was entered before January 1, 2004;
(d)
The administrator or a court gave the later-issued child support judgment
precedence over the earlier-issued child support judgment originating under ORS
416.440; and
(e)
All parties had an opportunity to challenge the amount of child support ordered
in the later-issued child support judgment.
(3)
Notwithstanding the provisions of ORS 25.091 (11) and 416.448 (7), for purposes
of reconciling any monetary support arrears or credits under the two child
support judgments described in subsection (2) of this section:
(a)
The monetary support terms of the child support judgment originating under ORS
416.440 are deemed terminated on the effective date of the later-issued child
support judgment; and
(b)
Entry of the later-issued child support judgment does not affect any support
payment arrearage or credit that has accrued under the earlier-issued child
support judgment originating under ORS 416.440. [2005 c.83 §1; 2007 c.356 §2]
25.100 Transfer of files to county where
party resides or property located. (1) With
respect to any order or judgment entered pursuant to ORS 107.095, 107.105,
108.120, 109.155, 416.400 to 416.465, 419B.400 or 419C.590 or ORS chapter 110,
if a party seeking modification or enforcement of an order or judgment for the
payment of money files a certificate to the effect that a party is presently in
another county of this state, the court may, upon motion of the party, order
that certified copies of the files, records and prepared transcripts of
testimony in the original proceeding be transmitted to the clerk of the circuit
court of any county in this state in which the obligee
or obligor resides, or in which property of the obligor is located.
(2)
Any files, records and prepared transcripts of testimony maintained in the
county to which certified copies have been transmitted as provided in
subsection (1) of this section shall be auxiliary to those maintained in the county of origin, whose files, records and prepared
transcripts shall remain the official record.
(3)
The original of any order entered in the auxiliary county under ORS 25.110
shall be entered in the files and records of the auxiliary county and certified
copies thereof shall be forwarded to the county of origin for filing. The party
submitting the original order for signature shall submit an extra copy for
forwarding by the clerk and shall indicate on that copy where it is to be
forwarded.
(4)
Notwithstanding any file number assigned in the auxiliary county for purposes
of identification, the file number assigned in the county
of origin shall be the reference number for all purposes including support
payment records in the Department of Justice. [Formerly 23.795; 1993 c.33 §283;
1995 c.608 §27; 1995 c.609 §4; 1997 c.704 §18; 1999 c.80 §43; 2003 c.576 §296]
25.110 Jurisdiction of circuit court in
county to which files transferred. (1) Upon
receipt of such certified copies referred to in ORS 25.100, the circuit court
of the county to which such certified copies have been transmitted shall have
jurisdiction to compel compliance with such order or judgment the same as if it
were the court which made and entered the original order or judgment for the
payment of support. The only court having jurisdiction to modify any provision
of the original order or judgment is the court having original jurisdiction of
the cause in which such order or judgment was entered or the circuit court of
the county in which either party resides if that court has received the
certified copies referred to in ORS 25.100.
(2)
The provisions of ORS 25.100 (2) to (4) shall apply to this section. [Formerly
23.800; 2003 c.576 §297]
25.120
[Formerly 23.805; 1993 c.33 §284; repealed by 1999 c.80 §95]
25.125 Disposition of support obligation
overpayments; rules. (1) The Department of Justice
may return moneys to an obligor when the department determines that the obligor
has paid more moneys than are due under a support obligation. However, when the
obligor has an ongoing support obligation, the department may give the obligor
credit for the excess amount paid and apply the credit to the future support
obligation until the credit is fully used. When the department applies a credit
to offset a future support obligation, the department shall so notify the obligee. The notice must inform the obligee
that, if the obligee requests, the department will
conduct an administrative review to determine if the record keeping and
accounting related to the calculation of the credit balance is correct. The
department shall conduct the administrative review within 30 days after
receiving the request.
(2)
An overpayment in favor of the state is created when the Department of Justice,
under ORS 25.020, has transmitted moneys received from an obligor to an obligee or a collection agency, a child support agency of
another state or an agency of this state and:
(a)
The amount transmitted is more than the support obligation requires and the
Department of Justice has returned the excess to the obligor under subsection
(1) of this section;
(b)
The Department of Justice has misapplied moneys received; or
(c)
The amount transmitted is attributable in whole or in part to a tax refund
offset collection all or part of which has been taken back by the Internal
Revenue Service or the Department of Revenue.
(3)(a)
The obligee or the agency to whom the moneys were
transmitted owes the amount of the overpayment to the state. The Department of
Justice shall:
(A)
Attempt to recover the overpayment if it is cost-effective to do so;
(B)
Notify the obligee or the agency to whom the
overpayment was made that the obligee or agency owes
money to the state and specify the amount of the overpayment to be returned to
the department; and
(C)
Give the obligee opportunity to object.
(b)
If the obligee does not file a timely written
objection, the overpayment amount determined by the department is final and the
provisions of subsection (4) of this section apply. If the department does not
resolve an objection to an obligee’s satisfaction, an
administrative law judge assigned from the Office of Administrative Hearings
shall hear the objection. An order by the administrative law judge is final. An
obligee may appeal the decision of an administrative
law judge to the circuit court for a hearing de novo.
(c)
Notwithstanding paragraph (a) of this subsection, if an agency of this or
another state owes the overpayment, the agency shall return the amount of the
overpayment to the department without notice and opportunity to object.
(4)
The amount of the overpayment specified in subsection (3)(a) of this section is
a liquidated debt and a delinquent amount owed to the state. The Department of
Justice may recover the debt by obtaining from the obligee
a voluntary assignment of a portion of future support payments to be applied to
the debt or in any other way permitted by law.
(5)(a)
In addition to the debt created under subsection (2) of this section, a debt in
favor of the state is created when:
(A)
The Department of Justice receives a check for support amounts due from an
obligor or withholder subject to an order to withhold under this chapter;
(B)
The Department of Justice transmits the amount to the obligee,
a child support agency of another state or an agency of this state; and
(C)
The check is dishonored.
(b)
When a debt is created under paragraph (a) of this subsection, the obligor or
withholder who presented the check owes the amount of money specified on the
check to the state.
(c)
The Department of Justice shall:
(A)
Attempt to recover the debt if it is cost-effective to do so;
(B)
Notify the obligor or withholder who presented the check that the obligor or
withholder owes the money to the state; and
(C)
Specify the amount of the debt to be paid to the department.
(d)
The amount of the debt specified in paragraph (c) of this subsection is a
liquidated debt and a delinquent amount owed to the state. The Department of
Justice may recover the debt in any way permitted under law.
(6)(a)
When a motion has been filed to terminate, vacate or set aside a support order
or to modify a support order because of a change in physical custody of the
child, the administrator may suspend enforcement of the support order if:
(A)
Collection of support would result in a credit balance if the motion were
granted; and
(B)
The obligee does not object to suspending enforcement
of the support order.
(b)
The obligee may object, within 14 days after the date
of the notice of intent to suspend enforcement of the support order, only on
the grounds that:
(A)
The child is not in the physical custody of the obligor;
(B)
The child is in the physical custody of the obligor without the consent of the obligee; or
(C)
A credit balance would not result if the motion were granted.
(c)
A party may appeal the administrator’s decision to suspend or not to suspend enforcement
of the support order under ORS 183.484.
(d)
As used in this subsection, “credit balance” means that payments have been made
in excess of all amounts owed by an obligor for ongoing and past due child
support.
(7)
The Department of Justice shall adopt rules to carry out the provisions of this
section. [1997 c.385 §2; 2001 c.961 §2; 2003 c.73 §22a; 2003 c.75 §72; 2003
c.572 §5; 2005 c.560 §3]
25.130 Election of alternative support
payment method; termination of election. (1) The
parties may elect to make support payments as provided in ORS 25.030 unless the
provisions of ORS 25.020 (1) apply. The election terminates when the provisions
of ORS 25.020 (1) apply subsequent to the election.
(2)
The election must be in writing and filed with the court that entered the
support order. The election must be signed by both the obligor and the obligee and must specify the amount of the support payment,
the date payment is due, the court order number and:
(a)
The account number of the checking or savings account that is to be used; or
(b)
The name of an escrow agent, licensed under ORS 696.511, to whom, and the
account number into which, the payments are to be electronically transferred.
(3)
Notice of termination of the bank or escrow agent option and payment
requirements pursuant to ORS 25.020 or 25.030 shall be sent by the Department
of Justice to the obligor’s and to the obligee’s
last-known address. [Formerly 23.807; 1993 c.596 §3; 1995 c.608 §8; 1997 c.704 §19;
1999 c.80 §80; 2003 c.210 §2]
25.140 Copies of new or modified support
orders to department. Counties that have heretofore
transferred the collection, accounting and disbursement responsibilities to the
Department of Justice, or that have elected not to maintain support
collections, accounting and disbursement services, and clerks of courts not
maintaining support collection services, shall forward to the department copies
of all new and modified support orders, satisfactions or other pertinent
documents in a timely manner. [Formerly 23.808; 1997 c.704 §20]
25.150 Department to collect fees for
services. The Department of Justice shall assess
and collect any fees for establishment, enforcement, collection, accounting and
disbursement services required by state law or administrative rule or by federal
law or regulation, including the annual fee required under Title IV-D of the
Social Security Act. [Formerly 23.815; 1997 c.704 §21; 1999 c.80 §81; 2007
c.878 §2]
25.160 Referral of support cases to
department; duration of collection services. (1)
For the purposes of ORS 25.020, 25.030, 25.070, 25.080, 25.085 and 25.130 to
25.160, a child support case shall be referred to the Department of Justice for
provision of collection, accounting and disbursement services if an application
as described in ORS 25.084 is made to the district attorney or to the Division
of Child Support and the case qualifies for support enforcement services under
federal regulations and state law.
(2)
The Department of Justice shall continue collection, accounting and disbursement
services for a case referred to the department under subsection (1) of this
section until notified by the district attorney or the Division of Child
Support that enforcement action has been discontinued. [Formerly 23.825; 1997
c.704 §22; 1999 c.80 §82; 2009 c.352 §5]
25.164 Payment of support through
Department of Justice; application. (1) If the
payment method for support payments set forth in the support judgment does not
require that payments be made through the Department of Justice, an application
may be made to the department for support enforcement services under this
chapter and under federal laws and regulations relating to support payments and
enforcement of judgments. An application under this section may be made by an obligee, by an obligor, by a person having physical custody
of a minor child or by a child attending school, as defined in ORS 107.108.
(2)
An application under subsection (1) of this section must be in the form
prescribed by ORS 25.084.
(3)
If an application is made under subsection (1) of this section, the
administrator shall give notice to all parties that the application has been
made. All support payments under the judgment that are due after the notice is
given must be made through the department.
(4)
When an application is made under this section, the method of support
accounting previously used for the support judgment terminates on the first day
of the month following the month the application is made, and the department
shall thereafter provide support accounting for the support judgment and
disburse amounts paid under the judgment.
(5)
If an application is made under this section and a complete record of support
payments does not exist, the department may establish a record of arrearage
under ORS 25.167. [Formerly 25.320; 2003 c.146 §6; 2009 c.352 §6]
25.167 Procedure for determining
arrearages. This section establishes procedures for
determining the amount of arrearage and for making a record of arrearage of
support payments. All of the following apply to this section:
(1)
A record of support payment arrearage may be established by:
(a)
Court order;
(b)
A governing child support judgment issued under ORS 25.091 or 416.448;
(c)
Administrative order issued under ORS 416.427 or 416.429;
(d)
Stipulation of the parties; or
(e)
The procedures under subsection (2) of this section whenever an existing child
or spousal support case enters the Department of Justice records system without
a current payment record maintained by any court clerk.
(2)
When allowed under subsection (1) of this section, arrearage amounts may be
established under this subsection. All of the following apply to this
subsection:
(a)
The obligee or obligor may execute a certificate in a
form acceptable to the Department of Justice that states the total amount owed
or the payment history in as much detail as is necessary to demonstrate the
periods and amounts of any arrearage.
(b)
The person making the certificate shall file the original certificate with the
court in which the support judgment was entered. When a governing child support
judgment has been issued, the person making the certificate shall file the
original certificate with the court that issued the governing child support
judgment.
(c)
The person making the certificate shall serve a true copy of the certificate
upon the other party together with a notice that the certificate will be the
basis of a permanent record unless the other party files objections.
(d)
For objections to be valid under paragraph (c) of this subsection, the other party
must file the objection with the court within 30 days from the date of service
of the certificate and must mail or serve true copies of the objections on both
the party who filed the certificate and either:
(A)
The district attorney; or
(B)
If support rights are or have been assigned to the State of Oregon at any time
within the last five months or if arrears under the support judgment are so
assigned, the Division of Child Support of the Department of Justice.
(e)
If objections are filed within the time allowed, the party filing the
certificate must file a supplemental certificate that is in a form acceptable
to the department and that provides any information concerning the payment
history that the department determines necessary.
(f)
If objections are filed within the time allowed, the district attorney or the
Division of Child Support shall cause the case to be set for a court hearing.
At the hearing, the court shall consider the correctness of the certificate but
may not consider objections to the merits of the support judgment. The parties
may settle the case by written agreement anytime before the court hearing.
Notice of the court hearing shall be served upon the party filing the
objections as authorized in ORCP 9 B.
(g)
If no objections are filed under this subsection within the time allowed, the
amount of arrearage stated in the certificate is the amount owed for purposes
of any subsequent action. The district attorney or the Division of Child
Support shall file with the court a certificate stating the arrearage
established under this paragraph.
(3)
When an application for support enforcement services is made under ORS 25.164,
an agency or court may not take or allow any ex parte enforcement action on
amounts owed as arrearage from before the time that the Department of Justice
commences support accounting and disbursement until the amount is established
under this section. This subsection does not prohibit or limit any enforcement
action on support payments that become due subsequent to the department’s
commencement of support accounting and disbursement under ORS 25.164.
(4)
In any determination under this section, a canceled check, payable to the obligee, indorsed by the obligee
or deposited to an account of the obligee, drawn on
the account of the obligor and marked as child support shall be prima facie
evidence that child support was paid to the obligee
in the amount shown on the face of the check. It is immaterial that the check
was signed by a person other than the obligor, provided that the person who
signed the check was an authorized signatory of checks drawn on the account. [Formerly
25.330; 2003 c.146 §7; 2003 c.576 §298; 2009 c.352 §7; 2011 c.318 §1]
25.170 Proceedings to require delinquent
obligor to appear for examination of financial circumstances.
When a support obligation is more than one month in arrears, the Attorney
General or a district attorney may upon motion obtain an order requiring the
obligor to appear for the purpose of examination regarding the obligor’s
financial circumstances. The court shall require the obligor to appear at a
time and date certain at such place as may be appropriate. The order to appear
shall inform the obligor that the obligor’s answers may be used in subsequent
enforcement and possible criminal proceedings, and that the obligor has a right
to be represented by an attorney at the examination. The order shall be served
upon the obligor in the same manner as service of summons. The order to appear
shall also be served upon the obligee by regular mail.
The obligee shall have the right to attend any such
examination. [Formerly 23.835; 1989 c.599 §1; 1993 c.596 §4]
25.180 Examination of obligor’s financial
circumstances. (1) The examination shall be conducted
under oath by an employee of the Department of Justice or district attorney.
The employee shall inform the obligor that the obligor’s answers may be used in
subsequent enforcement and possible criminal proceedings, and that the obligor
has a right to be represented by an attorney at the examination. A record of
the examination may be made by either stenographic or electronic means. The
obligor may be examined in regard to the obligor’s income and property, and to
any matter relevant to the obligor’s ability to pay support.
(2)
An obligee or the obligee’s
attorney may examine the obligor in a proceeding conducted under this section. [Formerly
23.837; 1989 c.599 §2; 1993 c.596 §5]
25.190 Continuance of proceedings;
certification of matter to court; service of notice to obligor and obligee. (1) The
examination may be continued for further review of the obligor’s financial
circumstances and employment, or the matter may be certified to the court for a
contempt hearing on the issue of failure to pay support as ordered. If the
examination is to be continued for further review or is to be certified to the
court for a contempt hearing, the obligor shall be served at the examination
with a notice stating the time, date and place for further examination or
hearing before the court. Service may be made by an employee of the Department
of Justice or district attorney.
(2)
Any notice served upon the obligor regarding a continuation of the examination
or regarding the certification of the matter to the court for a contempt
hearing must also be served upon the obligee. Such
service upon the obligee may be by regular mail. [Formerly
23.842; 1989 c.599 §3; 1993 c.596 §6]
25.200 Arrest of obligor for failure to
appear. (1) If the obligor fails to appear for
examination or further examination, the Attorney General or a district attorney
may apply to the court which issued the order to appear for an order directing
the issuance of a warrant for the arrest of the obligor. The motion shall be
accompanied by an affidavit which shall state the relevant facts and whether
the obligor contacted the Department of Justice or district attorney, as
appropriate. If the court finds that the obligor had notice and failed to
appear, the court shall order the issuance of a warrant for the arrest of the
obligor in order to bring the obligor before the court to show cause why the
obligor should not be held in contempt for a failure to appear as ordered.
(2)
If the matter has been certified to the court for a contempt hearing and the
obligor, having been properly served, fails to appear, the court shall order
the issuance of a warrant for the arrest of the obligor. Upon arrest, the
obligor shall be brought before the court to show cause why the obligor should
not be held in contempt for a failure to appear as ordered. [Formerly 23.845;
1989 c.599 §4]
25.210 Use of obligor’s property for delinquent
support payments. If by examination of the obligor
it appears that the obligor has any property liable to execution, the court,
upon motion of the Attorney General or a district attorney, shall order that
the obligor apply the same in satisfaction of the arrears or that the property
be levied on by execution, or both. [Formerly 23.847; 1989 c.599 §5]
25.213 Assignment of proceeds of insurance
policy to secure support obligation. If by examination
of the obligor under ORS 25.170, it appears that the obligor is the beneficiary
and owner of an insurance policy on the life of the child, the court, upon
motion of the Attorney General or a district attorney, may order that the
obligor assign to the obligee the rights to as much
of the proceeds of the insurance policy as necessary to secure the obligation
to make support payments, if assignment is permitted in the policy. This
assignment shall be in addition to any other security ordered by the court. [1997
c.54 §2]
25.220 Computer printouts of
administrator; evidence of authenticity not required in support proceedings;
evidentiary effect. (1) In any proceeding to
establish, enforce or modify a support obligation, extrinsic evidence of
authenticity is not required as a condition precedent to the admission of a
computer printout of the administrator that may reflect the employment records
of a parent, the support payment record of an obligor, the payment of public
assistance, the amounts paid, the period during which public assistance was
paid, the persons receiving or having received assistance and any other
pertinent information, if the printout bears a seal purporting to be that of
the administrator and is certified as a true copy by original or facsimile
signature of a person purporting to be an officer or employee of the
administrator. Printouts certified in accordance with this section constitute
prima facie evidence of the existence of the facts stated therein.
(2)
To the extent permitted under federal and state law, obligors and obligees, and their attorneys, may obtain copies of such
printouts upon request made to the administrator. [Formerly 23.855; 1989 c.519 §1;
1997 c.704 §23; 1999 c.735 §19]
25.230 Court authorized to require security
for support payments. Whenever a court has entered an
order for the payment of support, the court may provide for such security, bond
or other guarantee satisfactory to the court to secure the obligation to make
support payments. [Formerly 23.865]
25.240 Order to pay support by parent with
legal custody of minor. Notwithstanding any other law,
where a court or the administrator has the authority under ORS chapter 107,
108, 109, 110 or 416 or ORS 419B.400 to 419B.406 or 419C.590, 419C.592 and
419C.597 to require a parent without legal custody to pay support for a minor
child, then the court or administrator may require a parent with legal custody
to pay support for such a child as long as that parent does not have physical
custody of such child or is not providing the child with the necessities of
life, including but not limited to lodging, food and clothing. [1985 c.610 §11;
1993 c.33 §368; 1995 c.608 §28; 2001 c.455 §5]
25.243 Grievance procedure; rules.
In addition to any other hearing rights authorized by law, an applicant for
services provided under ORS 25.080 and any party to a child support order for
which services are provided under ORS 25.080 may file a grievance with the
Department of Justice concerning any service provided under ORS 25.080. The department
shall adopt rules establishing a process for handling grievances under this
section. The process must provide that grievances not involving a public child
support agency in another state be addressed no later than 90 days after the
grievance is submitted to the department. [1995 c.608 §45; 2003 c.73 §23]
25.245 Rebuttable presumption of inability
to pay child support when parent receiving certain assistance payments; rules.
(1) Notwithstanding any other provision of Oregon law, a parent who is eligible
for and receiving cash payments under ORS 412.001 to 412.069, Title IV-A of the
Social Security Act, the general assistance program as provided in ORS chapter
411 or a general assistance program of another state or tribe, the Oregon
Supplemental Income Program or the federal Supplemental Security Income Program
shall be rebuttably presumed unable to pay child
support and a child support obligation does not accrue unless the presumption
is rebutted.
(2)
Each month, the Department of Human Services shall identify those persons
receiving cash payments under the programs listed in subsection (1) of this
section that are administered by the State of Oregon and provide that
information to the administrator. If benefits are received from programs listed
in subsection (1) of this section that are administered by other states, tribes
or federal agencies, the obligor shall provide the administrator with written
documentation of the benefits. The Department of Human Services shall adopt
rules to implement this subsection.
(3)
The administrator shall refer to the information provided in subsection (2) of
this section prior to establishing any child support obligation. Within 30 days
following identification of persons under subsection (2) of this section, the
entity responsible for support enforcement services under ORS 25.080 shall
provide notice of the presumption to the obligee and
obligor and shall inform all parties to the support order that, unless a party
objects as provided in subsection (4) of this section, child support shall
cease accruing beginning with the support payment due on or after the date the
obligor first begins receiving the cash payments and continuing through the
support payment due in the last month in which the obligor received the cash payments.
The entity responsible for support enforcement services shall serve the notice
on the obligee in the manner provided for the service
of summons in a civil action, by certified mail, return receipt requested, or
by any other mail service with delivery confirmation and shall serve the notice
on the obligor by first class mail to the obligor’s last-known address. The
notice shall specify the month in which cash payments are first made and shall
contain a statement that the administrator represents the state and that low
cost legal counsel may be available.
(4)
A party may object to the presumption by sending an objection to the entity
responsible for support enforcement services under ORS 25.080 within 30 days
after the date of service of the notice. The objection must describe the
resources of the obligor or other evidence that might rebut the presumption of
inability to pay child support. The entity receiving the objection shall cause
the case to be set for a hearing before a court or an administrative law judge.
The court or administrative law judge may consider only whether the presumption
has been rebutted.
(5)
If no objection is made, or if the court or administrative law judge finds that
the presumption has not been rebutted, the Department of Justice shall
discontinue billing the obligor for the period of time described in subsection
(3) of this section and no arrearage shall accrue for the period during which
the obligor is not billed. In addition, the entity providing support
enforcement services shall file with the circuit court in which the support
order or judgment has been entered a copy of the notice described in subsection
(3) of this section or, if an objection is made and the presumption is not
rebutted, a copy of the administrative law judge’s order.
(6)(a)
Within 30 days after the date the obligor ceases receiving cash payments under
a program listed in subsection (1) of this section, the Department of Justice
shall provide notice to all parties to the support order:
(A)
Specifying the last month in which a cash payment was made;
(B)
Stating that the payment of those benefits has terminated and that by operation
of law billing and accrual of support resumes; and
(C)
Informing the parties of their rights to request a review and modification of
the support order based on a substantial change in circumstance or pursuant to
ORS 25.287 or any other provision of law.
(b)
The notice shall include a statement that the administrator represents the
state and that low cost legal counsel may be available.
(c)
The entity providing enforcement services shall file a copy of the notice
required by paragraph (a) of this subsection with the circuit court in which
the support order or judgment has been entered.
(7)
Receipt by a child support obligor of cash payments under any of the programs
listed in subsection (1) of this section shall be sufficient cause for a court
or administrative law judge to allow a credit and satisfaction against child
support arrearage for months that the obligor received the cash payments.
(8)
The notice and finding of financial responsibility required by ORS 416.415
shall include notice of the presumption, nonaccrual and arrearage credit rights
provided for in this section.
(9)
The presumption, nonaccrual and arrearage credit rights created by this section
shall apply whether or not child support enforcement services are being
provided under Title IV-D of the Social Security Act.
(10)
Application of the presumption, nonaccrual and arrearage credit rights created
by this section does not constitute a modification but does not limit the right
of any party to seek a modification of a support order based upon a change of
circumstances or pursuant to ORS 25.287 or any other provision of law. In
determining whether a change in circumstances has occurred or whether three
years have elapsed, or such shorter cycle as determined by rule of the
Department of Justice, since entry of a support order, the court or
administrative law judge may not consider any action taken under this section
as entry of a support order. The presumption stated in subsection (1) of this
section applies in any modification proceeding. [1991 c.520 §3; 1993 c.799 §1;
1997 c.704 §24; 2001 c.104 §5; 2001 c.455 §6; 2003 c.75 §73; 2003 c.576 §299;
2007 c.861 §11; 2007 c.878 §3; 2009 c.80 §1; 2011 c.318 §2]
25.250 [1987
c.427 §1; repealed by 1993 c.798 §21]
25.255 [1989
c.812 §2; 1991 c.67 §4; 1991 c.519 §2; 1993 c.33 §286; 1993 c.800 §1; 1995
c.506 §§12,12a; 1999 c.80 §10; 2003 c.73 §24a; 2003 c.75 §74; repealed by 2003
c.637 §14]
25.260 Confidentiality of records; rules.
(1) As used in this section, “Child Support Program” means:
(a)
The program described in ORS 180.345;
(b)
The Administrator of the Division of Child Support of the Department of
Justice;
(c)
A district attorney; and
(d)
The administrator’s or district attorney’s authorized representative.
(2)
Unless otherwise authorized by law, child support records, including data
contained in the Child Support Program’s automated system, are confidential and
may be disclosed or used only as necessary for the administration of the
program.
(3)
In administering the Child Support Program, the program may:
(a)
In accordance with rules adopted under subsection (7) of this section, report
abuse as defined in ORS 419B.005 if the abuse is discovered while providing
program services.
(b)
Extract and receive information from other databases as necessary to carry out
the program’s responsibilities under state and federal law.
(4)
The Child Support Program may compare and share information with public and
private entities as necessary to perform the program’s responsibilities under
state and federal law.
(5)
The Child Support Program may exchange information with state agencies
administering programs funded under Title XIX and Part A of Title IV of the
Social Security Act as necessary for the Child Support Program and the state
agencies to perform their responsibilities under state and federal law.
(6)
In addition to any penalty to which an individual may be subject under ORS
25.990, an employee of the Department of Justice, of a district attorney or of
the Department of Human Services who discloses or uses the contents of any
records in violation of subsection (2) of this section is subject to
discipline, up to and including dismissal from employment.
(7)
The Department of Justice shall adopt rules consistent with federal regulations
governing confidentiality of Child Support Program information. [1989 c.812 §3(1);
1991 c.758 §2; 1995 c.609 §7; 1999 c.80 §72; 2003 c.450 §1; 2005 c.22 §16]
25.265 Access to information in Federal
Parent Locator Service; rules. The
Department of Justice shall adopt rules establishing a procedure by which a
person authorized under federal law may access information in the Federal Parent
Locator Service. [1997 c.746 §22a; 2003 c.73 §25]
Note: 25.265
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 25 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
FORMULA FOR DETERMINING AMOUNT OF CHILD
SUPPORT
25.270 Legislative findings.
The Legislative Assembly finds that:
(1)
The federal Family Support Act of 1988 mandates that the state must establish a
formula for child support award amounts that is applicable in any judicial or
administrative proceeding for the award of child support.
(2)
It is further mandated that the amount of child support determined by the
formula must be presumed to be the correct amount unless rebutted by a specific
finding on the record that the application of the formula would be unjust or
inappropriate in the particular case as determined under criteria established
by the state.
(3)
It is also mandated that the formula is to be reviewed at least once every four
years to insure that the application of the formula results in appropriate
child support awards.
(4)
There is a need for uniformity in child support awards, and child support
awards often are based upon noneconomic factors and are inadequate in terms of
the needs of the child.
(5)
The Division of Child Support of the Department of Justice is the appropriate
agency to establish the required formula. [1989 c.811 §2]
25.275 Formula for determining child
support awards; criteria to be considered; mandated standards; reduction;
rules. (1) The Division of Child Support of
the Department of Justice shall establish by rule a formula for determining
child support awards in any judicial or administrative proceeding. In
establishing the formula, the division shall take into consideration the
following criteria:
(a)
All earnings, income and resources of each parent, including real and personal
property;
(b)
The earnings history and potential of each parent;
(c)
The reasonable necessities of each parent;
(d)
The ability of each parent to borrow;
(e)
The educational, physical and emotional needs of the child for whom the support
is sought;
(f)
The amount of assistance that would be paid to the child under the full
standard of need of the state’s IV-A plan;
(g)
Preexisting support orders and current dependents; and
(h)
Other reasonable criteria that the division may find to be appropriate.
(2)
The formula described in subsection (1) of this section must also comply with
the following standards:
(a)
The child is entitled to benefit from the income of both parents to the same
extent that the child would have benefited had the family unit remained intact
or if there had been an intact family unit consisting of both parents and the
child.
(b)
Both parents should share in the costs of supporting the child in the same
proportion as each parent’s income bears to the combined income of both
parents.
(3)
The formula described in subsection (1) of this section must be designed to
ensure, as a minimum, that the child for whom support is sought benefits from
the income and resources of the absent parent on an equitable basis in
comparison with any other minor children of the absent parent.
(4)
The child support obligation to be paid by the obligor and determined under the
formula described in subsection (1) of this section:
(a)
May be reduced or increased in consideration of medical support, as provided in
ORS 25.321 to 25.343.
(b)
May be reduced dollar for dollar in consideration of any Social Security or
apportioned Veterans’ benefits paid to the child, or to a representative payee
administering the funds for the child’s use and benefit, as a result of the
obligor’s disability or retirement.
(c)
Shall be reduced dollar for dollar in consideration of any Survivors’ and
Dependents’ Educational Assistance under 38 U.S.C. chapter 35 paid to the
child, or to a representative payee administering the funds for the child’s use
and benefit, as a result of the obligor’s disability or retirement. [1989 c.811
§3; 1993 c.800 §2; 1999 c.1030 §1; 2003 c.73 §26a; 2003 c.75 §75; 2003 c.572 §6;
2003 c.637 §15; 2009 c.351 §7]
25.280 Formula amount presumed correct;
rebuttal of presumption; criteria. In any
judicial or administrative proceeding for the establishment or modification of
a child support obligation under ORS chapter 107, 108, 109, 110 or 416 or ORS
419B.400, 419B.923, 419C.590 or 419C.610, the amount of support determined by
the formula established under ORS 25.275 is presumed to be the correct amount
of the obligation. This is a rebuttable presumption and a written finding or a
specific finding on the record that the application of the formula would be
unjust or inappropriate in a particular case is sufficient to rebut the
presumption. The following criteria shall be considered in making the finding:
(1)
Evidence of the other available resources of a parent;
(2)
The reasonable necessities of a parent;
(3)
The net income of a parent remaining after withholdings required by law or as a
condition of employment;
(4)
A parent’s ability to borrow;
(5)
The number and needs of other dependents of a parent;
(6)
The special hardships of a parent including, but not limited to, any medical
circumstances of a parent affecting the parent’s ability to pay child support;
(7)
The needs of the child;
(8)
The desirability of the custodial parent remaining in the home as a full-time
parent and homemaker;
(9)
The tax consequences, if any, to both parents resulting from spousal support
awarded and determination of which parent will name the child as a dependent;
and
(10)
The financial advantage afforded a parent’s household by the income of a spouse
or another person with whom the parent lives in a relationship similar to
husband and wife. [1989 c.811 §4; 1993 c.33 §287; 1993 c.354 §1; 1995 c.608 §30;
2001 c.622 §42; 2007 c.71 §8; 2007 c.356 §3]
25.285 [1989
c.811 §5; repealed by 1991 c.519 §8 (25.287 enacted in lieu of 25.285 in 1993)]
25.287 Proceedings to modify orders to
comply with formula; when proceeding may be initiated; issues considered.
(1)(a) The entity providing support enforcement services under ORS 25.080 may
initiate proceedings to modify a support obligation to ensure that the support
obligation is in accordance with the formula established under ORS 25.275.
(b)
Proceedings under this subsection may occur only after three years have
elapsed, or such shorter cycle as determined by rule of the Department of
Justice, from the later of the following:
(A)
The date the original support obligation took effect;
(B)
The date any previous modification of the support obligation took effect; or
(C)
The date of any previous review and determination under this subsection that
resulted in no modification of the support obligation.
(c)
For purposes of paragraph (b) of this subsection, a support obligation or
modification takes effect on the first date on which the obligor is to pay the
established or modified support amount.
(d)
The only issues at proceedings under this subsection are whether three years
have elapsed, or such shorter cycle as determined by rule of the department,
and whether the support obligation is in substantial compliance with the
formula established under ORS 25.275.
(e)
Upon review, if the administrator determines that a support obligation does not
qualify for modification under this section, a party may object to the
determination within 30 days after the date of the determination. A hearing on
the objection shall be conducted by an administrative law judge assigned from
the Office of Administrative Hearings. Appeal of the order of the
administrative law judge may be taken to the circuit court of the county in
which the support obligation has been entered or registered for a hearing de
novo. The appeal to the court shall be by petition for review filed within 60
days after entry of the order of the administrative law judge.
(f)
If the court, the administrator or the administrative law judge finds that more
than three years have elapsed, or such shorter cycle as determined by rule of
the department, the court, the administrator or the administrative law judge
shall modify the support order to bring the support obligation into substantial
compliance with the formula established under ORS 25.275, regardless of whether
there has been a substantial change in circumstances since the support
obligation was last established, modified or reviewed. Proceedings by the
administrator or administrative law judge under this subsection shall be
conducted according to the provisions of ORS 416.425 and 416.427.
(g)
The provisions of this subsection apply to any support obligation established
by a support order under this chapter or ORS chapter 107, 108, 109, 110 or 416
or ORS 419B.400 or 419C.590.
(2)
The entity providing support enforcement services shall state in the document
initiating the proceeding, to the extent known:
(a)
Whether there is pending in this state or any other jurisdiction any type of
support proceeding involving the child, including a proceeding brought under
ORS 107.085, 107.135, 107.431, 108.110, 109.100, 109.103, 109.165, 125.025,
416.400 to 416.465, 419B.400 or 419C.590 or ORS chapter 110; and
(b)
Whether there exists in this state or any other jurisdiction a support order,
as defined in ORS 110.303, involving the child, other than the support
obligation the entity seeks to modify.
(3)
The entity providing support enforcement services shall include with the
document initiating the proceeding a certificate regarding any pending support
proceeding and any existing support order other than the support obligation the
entity seeks to modify. The entity providing support enforcement services shall
use a certificate that is in a form prescribed by the administrator and shall
include information required by the administrator and subsection (2) of this
section.
(4)
The administrator, court or administrative law judge may use the provisions of
subsection (1) of this section when a support order was entered in another
state and registered in Oregon, the provisions of ORS chapter 110 apply and
more than three years have elapsed, or such shorter cycle as determined by rule
of the department.
(5)
Notwithstanding the provisions of this section, proceedings may be initiated at
any time to modify a support obligation based upon a substantial change of
circumstances under any other provision of law.
(6)
The obligee is a party to any action to modify a
support obligation under this section. [1991 c.519 §3; 1993 c.33 §369; 1993
c.596 §7 (enacted in lieu of 25.285 in 1993); 1995 c.608 §31; 1999 c.80 §64;
1999 c.735 §1; 2001 c.455 §§7,8; 2003 c.75 §24; 2003 c.116 §§1,2; 2003 c.576 §§183,184;
2005 c.560 §4; 2007 c.71 §9; 2007 c.878 §4]
25.290 Determining disposable income of
obligor; offsets; rules. (1) In determining the
disposable income of an obligor, the obligor may claim offsets against gross
receipts for ordinary and necessary business expenses and taxes directly
related to the income withheld. The obligor has the burden of proof and must
furnish documentation to support any offsets claimed.
(2)
The Department of Justice may adopt rules governing the determination of the
income subject to withholding that remains after application of offsets.
Withholding actions in a case that is not receiving support enforcement
services under ORS 25.080 may be appealed to the circuit court. [1995 c.608 §1b;
2003 c.73 §27]
25.310 [1985
c.671 §4; 1989 c.812 §4; 1991 c.362 §2; repealed by 1993 c.798 §21]
25.311 [1993
c.798 §5; 1995 c.608 §32; 1999 c.80 §2; 1999 c.735 §8; 1999 c.849 §§38,39;
renumbered 25.378 in 1999]
25.313 [1993
c.798 §3; renumbered 25.393 in 1999]
25.314 [1993
c.798 §6; 1995 c.272 §6; 1997 c.704 §26; 1999 c.80 §3; renumbered 25.402 in
1999]
25.315 [1993
c.798 §7; 1999 c.80 §4; renumbered 25.399 in 1999]
25.316 [1993
c.798 §8; 1999 c.80 §5; 1999 c.735 §12; renumbered 25.405 in 1999]
25.317 [1993
c.798 §9; 1999 c.735 §11; renumbered 25.396 in 1999]
25.318 [1993
c.798 §10; renumbered 25.390 in 1999]
25.320 [1985
c.671 §5; 1997 c.704 §27; renumbered 25.164 in 1999]
MEDICAL SUPPORT
25.321 Definitions for ORS 25.321 to
25.343. As used in ORS 25.321 to 25.343:
(1)
“Cash medical support” means an amount that a parent is ordered to pay to
defray the cost of health care coverage provided for a child by the other
parent or a public body, or to defray uninsured medical expenses of the child.
(2)
“Child support order” means a judgment or administrative order that creates
child support rights and that is entered or issued under ORS 416.400 to
416.465, 419B.400 or 419C.590 or this chapter or ORS chapter 107, 108, 109 or
110.
(3)
“Employee health benefit plan” means a health benefit plan that is available to
a providing party by reason of the providing party’s employment.
(4)
“Enforcing agency” means the administrator.
(5)
“Health benefit plan” means any policy or contract of insurance, indemnity,
subscription or membership issued by an insurer, including health care coverage
provided by a public body, and any self-insured employee benefit plan that
provides coverage for medical expenses.
(6)
“Health care coverage” means providing and paying for the medical needs of a
child through a policy or contract of insurance, indemnity, subscription or
membership issued by an insurer, including medical assistance provided by a
public body, and any self-insured employee benefit plan that provides coverage
for medical expenses.
(7)
“Medical support” means cash medical support and health care coverage.
(8)
“Medical support clause” means a provision in a child support order that
requires one or both of the parents to provide medical support for the child.
(9)
“Medical support notice” means a notice in the form prescribed under ORS 25.325
(5).
(10)
“Plan administrator” means:
(a)
The employer, union or other provider that offers a health benefit plan; or
(b)
The person to whom, under a written agreement of the parties, the duty of plan
administrator is delegated by the employer, union or other provider that offers
a health benefit plan.
(11)
“Private health care coverage” means all health care coverage other than
medical assistance provided by a public body.
(12)
“Providing party” means a party to a child support order who has been ordered
by the court or the enforcing agency to provide medical support.
(13)
“Public body” has the meaning given that term in ORS 174.109. [2003 c.637 §2;
2007 c.878 §5; 2009 c.351 §1; 2011 c.318 §13]
25.323 Medical support.
(1) Every child support order must include a medical support clause.
(2)
Whenever a child support order that does not include a medical support clause
is modified the modification must include a medical support clause.
(3)
A medical support clause may require that medical support be provided in more
than one form, and may make the requirement that medical support be provided in
a particular form contingent on the availability of another form of medical
support.
(4)
A medical support clause must require that one or both parents provide private
health care coverage for a child that is appropriate and available at the time
the order is entered. If private health care coverage for a child is not
appropriate and available at the time the order is entered, the order must:
(a)
Require that one or both parents provide private health care coverage for the
child at any time thereafter when such coverage becomes available; and
(b)
Either require the payment of cash medical support, or include findings on why
cash medical support has not been required.
(5)
For the purposes of subsection (4) of this section, private health care
coverage is appropriate and available for a child if the coverage:
(a)
Is accessible, as described in subsection (6) of this section;
(b)
Is reasonable in cost and does not require the payment of unreasonable
deductibles or copayments; and
(c)
Provides coverage, at a minimum, for medical expenses, hospital expenses,
preventive care, emergency care, acute care and chronic care.
(6)
Private health care coverage is accessible for the purposes of subsection
(5)(a) of this section if:
(a)
The coverage will be available for at least one year, based on the work history
of the parent providing the coverage; and
(b)
The coverage either does not have service area limitations or the child lives
within 30 miles or 30 minutes of a primary care provider who is eligible for
payment under the coverage.
(7)
A medical support clause may not order a providing party to pay cash medical
support or to pay to provide health care coverage if the providing party’s
income is equal to or less than the Oregon minimum wage for full-time
employment.
(8)
Cash medical support and the cost of other medical support ordered under a
medical support clause constitute a child support obligation and must be
included in the child support calculation made under ORS 25.275. [2003 c.637 §3;
2007 c.878 §6; 2009 c.351 §2; 2009 c.595 §55; 2011 c.318 §6]
25.325 Enforcing medical support; form of
notice; rules. (1) When a child support order with a
medical support clause is entered, the court or the enforcing agency may issue
a qualified medical child support order as provided in section 609 of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1169). The qualified
medical child support order shall direct the providing party’s employer, or the
plan administrator for the providing party’s employee health care coverage, to
enroll the providing party’s child in the employee health benefit plan and
direct the providing party’s employer to withhold any required premium from the
providing party’s compensation.
(2)
When a child support order with a medical support clause is entered and support
enforcement services are being provided under ORS 25.080, the enforcing agency
shall, when appropriate, issue a medical support notice to the providing party’s
employer within two business days after receiving information under ORS 25.790
that the employer has hired or rehired the providing party.
(3)
If a child support order with a medical support clause is in effect or is being
sought:
(a)
The providing party’s employer or the plan administrator for the providing
party’s employee health care coverage shall release to the enforcing agency,
upon request, the name and address of the health benefit plan that provides the
coverage and the plan administrator; and
(b)
The plan administrator shall release to the obligee
or the enforcing agency, upon request, information about health care coverage
for dependents under the employee health benefit plan.
(4)
If a qualified medical child support order or a medical support notice has been
served on the providing party’s employer, the order or notice is binding on the
employer and the plan administrator for the providing party’s employee health
benefit plan to the extent that the child is eligible to be enrolled in the
health benefit plan under the applicable terms and conditions of the plan and
the standard enrollment guidelines as described in ORS 743.847. Enrollment of
the child shall be allowed at any time, notwithstanding any enrollment season
restrictions.
(5)
The Department of Justice, by rule, shall prescribe the form of a medical
support notice for the purposes of ORS 25.321 to 25.343. In prescribing the
form, the department shall consider all relevant federal law relating to
medical support notices. [2003 c.637 §4; 2007 c.878 §7; 2009 c.351 §3]
25.327 Service of medical support notice.
(1) The enforcing agency shall serve the medical support notice on the
providing party’s employer as a withholder. The notice may be served upon the
withholder or the withholder’s registered agent, corporate officer, bookkeeper,
accountant, person responsible for payroll or local office manager by:
(a)
Personal service;
(b)
Any type of mail that is calculated to give actual notice and is addressed to
one of the persons listed in this subsection; or
(c)
Electronic means if the employer has the ability to receive the medical support
notice in that manner.
(2)
Service of a medical support notice constitutes receipt of a medical child
support order.
(3)
The enforcing agency shall, as provided in ORS 25.333, notify the parties that
the medical support notice has been served on the providing party’s employer. [2003
c.637 §5; 2007 c.878 §8]
25.329 Actions required after service of
medical support notice; rules. When the
enforcing agency serves a medical support notice on an employer:
(1)
The employer shall comply with the provisions in the medical support notice;
(2)
The plan administrator and the employer shall treat the medical support notice
as an application by the enforcing agency for health care coverage for the
named child under the health benefit plan to the extent an application is
required by the plan;
(3)
If the providing party named in the medical support notice is not an employee
of the employer, or if a health benefit plan is not offered or available to the
providing party, the employer shall notify the enforcing agency within 20
business days after the date of the medical support notice;
(4)
If a health benefit plan is offered or available to the providing party, the
employer shall send the plan administrator’s portion of the notice to each
appropriate plan administrator within 20 business days after the date of the
medical support notice;
(5)
Within 40 business days after the date of the medical support notice, the plan
administrator shall do all of the following as directed by the notice:
(a)
Complete the appropriate portion of the notice and return the portion to the
enforcing agency;
(b)
If the child is or will be enrolled, notify the parties and furnish the obligee with the information necessary to effectuate
coverage and submit claims for benefits;
(c)
If the child has been or will be enrolled, provide the enforcing agency with
the type of health benefit plan under which the child has been or will be
enrolled, including whether dental, optical, office visits and prescription
drugs are covered services;
(d)
If more than one health benefit plan is available to the providing party and
the providing party is not enrolled, forward the health benefit plan
descriptions and documents to the enforcing agency;
(e)
If the providing party is subject to a waiting period that expires more than 90
days after the date of receipt of the medical support notice by the plan
administrator or if the providing party has not completed a waiting period that
is measured in a manner other than the passage of time, notify the employer,
the enforcing agency and the parties; and
(f)
Upon completion of the enrollment, notify the employer of the enrollment;
(6)
If the plan administrator notifies the employer that the providing party is
subject to a waiting period that expires more than 90 days after the date of
receipt of the medical support notice by the plan administrator or that the
providing party is subject to a waiting period that is measured in a manner
other than the passage of time, the employer shall, when the providing party
becomes eligible to enroll in the plan, notify the plan administrator that the
medical support notice requires that the child named in the notice be enrolled
in the plan; and
(7)
The plan administrator shall enroll the child and, if necessary to the
enrollment of the child, enroll the providing party in the plan as provided by
rules adopted by the Department of Justice. [2003 c.637 §6; 2007 c.878 §9]
25.330 [1985
c.671 §6; 1991 c.588 §1; 1995 c.609 §5; 1997 c.704 §28; renumbered 25.167 in
1999]
25.331 Obligation to withhold.
(1) Upon notification from the plan administrator that the child is enrolled in
the health benefit plan, the employer shall withhold from the providing party’s
compensation the providing party’s share, if any, of premiums for the health
benefit plan. The employer shall forward the amount withheld as required by the
health benefit plan.
(2)
The withholding required by a qualified medical child support order or a
medical support notice is a continuing obligation. The qualified medical child
support order or medical support notice and the withholding remain in effect
and are binding upon the employer until further notice from the court or the
enforcing agency.
(3)(a)
An amount withheld by an employer in compliance with a withholding order issued
for monetary support and a qualified medical child support order or medical
support notice may not exceed 50 percent of the providing party’s net
disposable income.
(b)
Notwithstanding paragraph (a) of this subsection, upon the motion of a party
and after a hearing, the court may order the withholding of more than 50
percent of the providing party’s net disposable income. However, the amount
withheld may not exceed the amount allowed under section 303(b) of the federal
Consumer Credit Protection Act (15 U.S.C. 1673(b)).
(4)
If a providing party’s compensation drops to a level at which withholding under
this section exceeds the amount allowed under subsection (3) of this section,
the employer shall stop the withholding and send the court or the enforcing agency,
as the case may be, a written notice within 15 days of stopping the
withholding. The notice shall include the providing party’s name, address and
Social Security number and the date the employer stopped withholding under this
section.
(5)
An employer is not subject to civil liability to an individual or agency for
conduct or actions in compliance with a medical support notice if the employer:
(a)
Is served with a medical support notice under ORS 25.327 that is regular on its
face; and
(b)
Complies with the provisions of the medical support notice if the notice
appears to be in conformance with section 609 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1169). [2003 c.637 §7; 2007 c.878 §10]
25.333 Contesting medical support notice.
(1) When the enforcing agency issues a medical support notice under ORS 25.325,
the enforcing agency shall notify the parties by regular mail to the last known
addresses of the parties:
(a)
That the notice has been sent to the providing party’s employer; and
(b)
Of the providing party’s rights and duties under the notice.
(2)
A providing party may contest a medical support notice within 30 days after the
date the premium is first withheld pursuant to the notice or, if the health
benefit plan is provided at no cost to the providing party, the date the first
premium is paid by the employer.
(3)
The only basis for contesting a medical support notice is a mistake of fact. A “mistake
of fact” means any of the following:
(a)
No order to provide health care coverage under a health benefit plan has been
issued in regard to the providing party’s child;
(b)
The amount to be withheld for premiums is greater than is permissible under ORS
25.331;
(c)
The alleged providing party is not the party from whom health care coverage is
required; or
(d)
The providing party’s income is equal to or less than Oregon minimum wage for
full-time employment.
(4)
The providing party may contest the medical support notice by requesting an
administrative review. After receiving a request for review and within 45 days
after the date the premium is first withheld pursuant to the medical support
notice, the enforcing agency shall determine, based on an evaluation of the
facts, whether the withholding for premiums may continue. The enforcing agency
shall inform the parties of the determination in writing and include
information regarding the right to appeal the determination.
(5)
Any appeal of the enforcing agency’s determination under subsection (4) of this
section is to the circuit court for a hearing under ORS 183.484.
(6)
The initiation of proceedings to contest a medical support notice or an appeal
of the enforcing agency’s determination under this section does not stay the
withholding of premiums. [2003 c.637 §8; 2007 c.878 §11; 2009 c.351 §10; 2011
c.318 §9]
25.335 Termination of support order.
When support enforcement services are being provided under ORS 25.080, the
enforcing agency shall notify the employer when there is no longer in effect a
support order requiring health care coverage for which the enforcing agency is
responsible. However, termination of the health care coverage is governed by
the health benefit plan’s provisions for termination and by applicable federal
law. [2003 c.637 §9]
25.337 Liability.
(1) If the plan administrator or the employer fails to comply with the
requirements described in ORS 25.329 or 25.331, the enforcing agency or obligee may bring a civil action against the plan
administrator or employer for medical expenses, the providing party’s share of
the premiums, attorney fees and costs.
(2)
An employer commits an unlawful employment practice if the employer discharges
a providing party, refuses to hire a providing party or in any other manner
discriminates, retaliates or takes disciplinary action against a providing
party because of the entry of a medical support notice or qualified medical
child support order or because of the obligations imposed upon the plan
administrator by the order. An employee may bring a civil action under ORS
659A.885 or may file a complaint with the Commissioner of the Bureau of Labor
and Industries in the manner provided by ORS 659A.820.
(3)
A providing party who fails to maintain health care coverage for a child as
ordered is liable, from the date of the order, for any medical expenses
resulting from the failure to maintain coverage.
(4)
The remedies described in this section are not exclusive. Nothing in this
section precludes action by the court to enforce a judicial or administrative
order requiring health care coverage or payment of medical support by
imposition of remedial or punitive sanctions for contempt or otherwise. [2003
c.637 §10; 2007 c.878 §12]
25.339 Priority of medical support notice.
A medical support notice issued under ORS 25.325 has priority over any
previously filed attachment, execution, garnishment or assignment of income
other than a withholding order issued for monetary support, unless otherwise
requested by the obligee. [2003 c.637 §11]
25.340 [1985
c.671 §7; 1993 c.798 §35; renumbered 25.381 in 1999]
25.341 Notice of termination of employer’s
relationship with providing party. When an
employer is unable to continue withholding from a providing party’s
compensation because the relationship between the employer and the providing
party ends, the employer shall send the enforcing agency a written notice
within 15 days of the termination of the relationship. The notice must include
the providing party’s name, the providing party’s last known address, the
providing party’s Social Security number, the date the relationship terminated
and, if known, the name and address of a new employer of or other provider of a
health benefit plan to the providing party. [2003 c.637 §12; 2007 c.878 §13]
25.342 Rules.
The Department of Justice may adopt all rules necessary for implementation of
ORS 25.321 to 25.343. [2009 c.351 §12]
25.343 Authorization for reimbursement
payments. The signature of the obligee or guardian of a child covered by a health benefit
plan is a valid authorization for purposes of processing an insurance
reimbursement payment to the provider of the health services as provided in ORS
743.847. [2003 c.637 §13]
25.350
[Formerly 23.783; repealed by 1993 c.798 §21]
25.351 [1993
c.798 §12; 1995 c.272 §1; 1997 c.704 §29; 1999 c.80 §6; renumbered 25.414 in
1999]
25.353 [1993
c.798 §14; 1995 c.272 §7; 1997 c.704 §30; 1999 c.80 §7; renumbered 25.417 in
1999]
25.354 [1995
c.272 §4; 1999 c.735 §15; renumbered 25.387 in 1999]
25.355 [1993
c.798 §15; 1997 c.704 §31; 1999 c.80 §8; renumbered 25.411 in 1999]
25.357 [1993
c.798 §16; renumbered 25.421 in 1999]
25.359 [1993
c.798 §17; renumbered 25.408 in 1999]
25.360
[Formerly 23.778; repealed by 1993 c.798 §21]
25.361 [1993
c.798 §18; repealed by 1999 c.735 §23]
25.363 [1993
c.798 §19; 1999 c.80 §9; renumbered 25.424 in 1999]
25.365 [1993
c.798 §20; renumbered 25.427 in 1999]
25.367 [1993
c.798 §2; 1995 c.608 §33; 1999 c.130 §3; renumbered 25.372 in 1999]
25.370 [1985
c.671 §8; 1989 c.812 §5; 1993 c.798 §26; 1997 c.704 §32; renumbered 25.384 in
1999]
INCOME WITHHOLDING AND PAYMENT RECORDS
25.372 Applicability.
ORS 25.372 to 25.427 apply to current support, arrears and interest on arrears,
independently or combined, whether arrears are owed to an obligee,
the state or a foreign jurisdiction. [Formerly 25.367; 2001 c.249 §73; 2003
c.73 §28; 2003 c.572 §7]
25.375 Priority of withholding.
Except as provided in ORS 25.339, withholding under ORS 25.378 has priority
over any other legal process under Oregon law against the same income. [Formerly
25.722; 2003 c.637 §16]
25.378 Payment of support by income
withholding; initiation of income withholding.
(1) Except as otherwise provided in ORS 25.396, when a support order is entered
or modified by the Division of Child Support, a district attorney, an
administrative law judge or a circuit court, including a juvenile court, the
order shall include a provision requiring the obligor to pay support by income
withholding regardless of whether support enforcement services are being
provided under ORS 25.080. In addition to the income withholding provided for
in this subsection, income withholding may be initiated in accordance with
subsections (2) to (6) of this section.
(2)
When an obligor is subject to a support order issued or registered in this
state and fails to make payments at least equal to the amount of support
payable for one month, a court or the administrator, whichever is appropriate,
shall initiate income withholding without the need for a judicial or
administrative hearing and without the need for advance notice to the obligor
of the withholding.
(3)
When an arrearage exists and notice of the delinquent amount has been given to
the obligor, a court, upon application, shall issue a withholding order upon
the ex parte request of a person holding support rights or the administrator.
(4)
If an obligor is not otherwise subject to income withholding a court or the
administrator may issue an order to withhold upon the ex parte motion of the
obligor.
(5)(a)
Upon the request of the holder of support rights, a court or the administrator,
as appropriate, may issue a withholding order at any time if:
(A)
The obligor is not otherwise subject to withholding; and
(B)
After notice and an opportunity to object has been given to the obligor, a finding
is made that it would be in the best interests of the child to issue a
withholding order.
(b)
If the obligor has been granted an exception to withholding under ORS 25.396 by
a court, the holder of support rights must apply for withholding under this subsection
by motion to the court.
(6)
A court or the administrator shall issue an order to withhold when a support
order or an arrearage from another jurisdiction is entered in Oregon in
accordance with interstate income withholding under ORS chapter 110. [Formerly
25.311; 2001 c.104 §§6,7; 2003 c.73 §§29,30; 2003 c.75 §25]
25.381 Establishing income withholding as
method of paying support; records. (1) Whenever
services are being provided under ORS 25.080, support rights are not and have
not at any time during the past five months been assigned to this or another
state, and no arrearages under a support order are so assigned, the
administrator shall provide, upon request of an obligor or obligee,
services sufficient to permit establishment of income withholding under ORS
25.378, including services necessary to establish a support payment record
under ORS 25.164 and 25.167.
(2)
Regardless of whether services are being provided under ORS 25.080, the
administrator shall provide, upon request of an obligor or obligee,
services sufficient to permit establishment of income withholding under ORS
25.378:
(a)
For the payment of child support without the necessity of an application for
support enforcement services under Title IV-D of the Social Security Act (42 U.S.C.
651 et seq.); and
(b)
For the payment of spousal support if the obligee is
receiving supplemental nutrition assistance or any other form of public
assistance, as defined in ORS 411.010, from the Department of Human Services. [Formerly
25.340; 2001 c.900 §8; 2003 c.73 §31; 2005 c.265 §1; 2009 c.599 §15]
25.384 Statement on withholding in support
order. (1) Any child support order issued or
modified after October 1, 1989, shall include a statement in substantially the
following form:
______________________________________________________________________________
NOTICE OF
INCOME WITHHOLDING
The
support order is enforceable by income withholding under ORS 25.372 to 25.427.
Withholding shall occur immediately, whenever there are arrears at least equal to
the support payment for one month, whenever the obligated parent requests such
withholding or whenever the obligee requests
withholding for good cause. The district attorney or, as appropriate, the
Division of Child Support of the Department of Justice will assist in securing
such withholding. Exceptions may apply in some circumstances.
______________________________________________________________________________
(2)
The Department of Justice shall provide annual notice to each obligor and obligee on support orders being enforced by the district
attorney or Division of Child Support of the availability of and requirements
for exceptions to withholding. [Formerly 25.370]
25.387 Withholding more than amount
authorized by law. Notwithstanding ORS 25.414 and
656.234, the court upon motion of a party holding the support rights, the
Division of Child Support or the district attorney, and after a hearing, may
order the withholding of more than the amount otherwise authorized by law. In
no case may an order require payment of an amount that exceeds the limits
imposed by the Consumer Credit Protection Act (15 U.S.C. 1673(b)). [Formerly
25.354]
25.390 Amendment of support order not
required for withholding. Disposable income is subject to
an order to withhold to satisfy a support obligation without the need for any
amendment to the support order involved or for any further action, other than
those actions required or permitted under ORS 25.378. [Formerly 25.318]
25.393 Remedy additional to other
remedies. Collection of support by withholding
income pursuant to ORS chapter 25 is in addition to any other remedy provided
by law for the enforcement of support. [Formerly 25.313]
25.396 Exception to withholding; termination
of withholding; rules. (1) When a court or the
administrator enters or modifies a support order, the court or administrator
may grant an exception to income withholding required under ORS 25.378 if the
court or administrator makes a written finding that there is good cause not to
require income withholding. Good cause exists when there is proof of timely
payment of previously ordered support and when initiating or continuing income
withholding would not be in the best interests of the child.
(2)
The court or administrator may grant an exception to income withholding
required under ORS 25.378 if:
(a)
The obligor and obligee at any time agree in writing
to an alternative payment method;
(b)
When money is owed to the state under the support order, the state agrees in
writing to the alternative payment method;
(c)
The obligor has paid in full all arrears accrued under the support order;
(d)
The obligor has complied with the terms of any previous exception granted under
this section; and
(e)
The court or administrator accepts the alternative payment method.
(3)
Notwithstanding subsection (1) of this section, when child support is currently
assigned to the state and the child is in the custody of the Oregon Youth
Authority or the Department of Human Services, the state or the obligor may
request and the court or administrator may grant an exception from income
withholding if:
(a)
The order to withhold is a barrier to reunification of the family or
rehabilitation of the youth or is prejudicial to the obligor’s ability to
provide for another child to whom a duty of support is owed; and
(b)
The state and the obligor agree in writing to an alternative payment method.
(4)
Exceptions to income withholding described in this section may be granted by
the administrator or the court, except that when support enforcement services
are being provided under ORS 25.080 the only permissible alternative payment
methods are an electronic funds transfer to the Department of Justice or
another method permitted under rules adopted under this section.
(5)
A party may appeal the administrator’s decision granting or denying an
exception under this section to the circuit court in accordance with ORS
183.484.
(6)
Income withholding may be terminated only if the conditions set forth in this
section are met.
(7)
The Department of Justice shall adopt rules and establish procedures to
implement this section. [Formerly 25.317; 2001 c.171 §1; 2003 c.73 §32; 2003
c.572 §8]
25.399 Notice of order to withhold; contents
of notice. (1) When an order to withhold is issued
under ORS 25.378, the party or entity initiating the action shall send notice
of the order to withhold to the obligor and the obligee
by regular mail to the last-known addresses of the obligor and obligee. The notice must state:
(a)
That withholding has commenced;
(b)
The amount to be withheld and the amount of arrears, if any;
(c)
That the order to withhold applies to any current or subsequent withholder or
period of employment;
(d)
The procedures available for contesting the withholding and that the only basis
for contesting the withholding is a mistake of fact, which means an error in
the amount of current support or arrearages, or an error in the identity of the
obligor;
(e)
The availability of and requirements for exceptions to withholding;
(f)
That the obligor has 30 days from the date that the income is first withheld
pursuant to the order to withhold to contest the withholding; and
(g)
The actions that will be taken if the obligor contests the withholding.
(2)
The notice requirement of subsection (1) of this section may be met by mailing
a copy of the order to withhold, by regular mail, to the obligor and to the obligee. [Formerly 25.315; 2011 c.318 §10]
25.402 Service of order on withholder;
contents. (1)(a) The party initiating the support
action shall serve the order to withhold on the withholder. The order may be
personally served upon the withholder or the withholder’s registered agent, an
officer of the corporation, bookkeeper, accountant, person responsible for
payroll or local office manager or may be served by any type of mail which is
calculated to give actual notice and is addressed to one of the persons listed
above.
(b)
Notwithstanding paragraph (a) of this subsection and unless the Department of
Justice, prior to initiating service, receives written notice of completion of
service by another party, the department shall serve the order to withhold in
all cases affecting a support order for which the department or the district
attorney has responsibility under ORS 25.080 for providing support enforcement
services regardless of whether the department or another party initiated the
support action.
(2)
The order to withhold shall inform the withholder of all of the following:
(a)
The amount of the obligor’s continuing support obligation.
(b)
That the withholder is required to withhold from the obligor’s disposable
income due or becoming due to the obligor at each pay period an amount as
determined by ORS 25.414.
(c)
The appropriate person to whom to make the withholding payment.
(d)
The information contained in ORS 25.375, 25.387, 25.411, 25.414, 25.417, 25.421
and 25.424. [Formerly 25.314]
25.405 Contesting order to withhold;
basis. (1) An obligor contesting an order to
withhold issued under ORS 25.378 must do so within 30 days from the date income
is first withheld pursuant to the order to withhold. The obligor may not
contest an order to withhold issued under ORS 25.378 (5).
(2)
The only basis for contesting the order to withhold is a mistake of fact. “Mistake
of fact” means an error in the amount of current support or arrearages, or an
error in the identity of the obligor. Payment of all arrearages shall not be
the sole basis for not implementing withholding.
(3)
If the order to withhold was issued by a court of this state, the obligor must
contest the order to withhold in the court that issued the order.
(4)
If the order to withhold was issued by a court or administrative agency of
another state and was received directly by an employer in this state under ORS
110.394, the obligor may contest the order to withhold by:
(a)
Seeking relief from enforcement of the order in the appropriate tribunal of the
state that issued the order;
(b)
Contesting the validity and enforcement of the order under ORS 110.401; or
(c)
Registering the underlying withholding order in Oregon in the manner provided
by ORS 110.405 and seeking relief from enforcement of the order as provided in
ORS 110.417 and 110.420.
(5)
If the order to withhold was issued pursuant to a request for enforcement under
ORS 25.080, the obligor may contest the order to withhold to the district
attorney or the Division of Child Support. The district attorney or the
Division of Child Support need not provide an opportunity for a contested case
administrative hearing under ORS chapter 183 or a hearing in circuit court.
Within 45 days after the date income is first withheld pursuant to the order to
withhold, the district attorney or the Division of Child Support shall
determine, based on an evaluation of the facts, if the withholding shall continue
and notify the obligor of the determination and of the obligor’s right to
appeal the determination.
(6)
Any appeal of the decision of the district attorney or the Division of Child
Support made under subsection (5) of this section is to the circuit court for a
hearing under ORS 183.484.
(7)
The initiation of proceedings to contest an order to withhold under subsection
(4) of this section, a motion or request to contest an order to withhold or an
appeal of the decision of the district attorney or the Division of Child
Support made under subsection (5) of this section does not act to stay
withholding unless otherwise ordered by a court. [Formerly 25.316; 2009 c.80 §2;
2011 c.318 §11]
25.408 Withholding is continuing
obligation. The withholding required by the order
is a continuing obligation. The notice and the withholding required by the
order remain in effect and are binding upon the withholder until further notice
from the court or the entity issuing the notice. [Formerly 25.359]
25.410 [1985
c.671 §13a; 1993 c.798 §27; 1993 c.800 §3; repealed by 1995 c.608 §46]
25.411 When withholding begins; payment to
Department of Justice or obligee.
(1) The withholder shall start withholding not later than the first pay period
occurring five days after the date of the order to withhold. However, if on the
date the employer receives the order the employer has already calculated the
payroll for that pay period and has prepared the paycheck or submitted a
deposit for that payroll, the employer shall start withholding no later than
the second pay period occurring after the date of the order to withhold.
(2)
Within seven business days after the date the obligor receives income, the
withholder shall pay amounts withheld to the Department of Justice or to the obligee by deposit into the obligee’s
bank account, whichever is specified in the order to withhold. The withholder
shall include, with the payment, the obligor’s name and case number and the
date upon which the income was withheld.
(3)
When payments are made to the Department of Justice, the withholder may combine
amounts withheld from different obligors’ incomes in a single payment as long
as such payment is accompanied by a list that separately identifies which
portion of the payment is attributable to each obligor, the obligor’s name and
case number, if any.
(4)
As used in this section, “business day” means a day on which the Department of
Justice is open for regular business. [Formerly 25.355; 2007 c.356 §4]
25.414 Standard amount to be withheld;
processing fee; rules. (1) The withholder shall
withhold from the obligor’s disposable monthly income, other than workers’
compensation under ORS chapter 656 or unemployment compensation under ORS
chapter 657, the amount stated in the order to withhold. The entity issuing the
order to withhold shall compute this amount subject to the following:
(a)
If withholding is for current support only, the amount to be withheld is the
amount specified as current support in the support order.
(b)
If withholding is for current support and there is an arrearage, the amount to
be withheld is 120 percent of the amount specified as current support in the
support order.
(c)
If withholding is only for arrearage, the amount to be withheld is one of the
following:
(A)
The amount of the last ordered monthly support.
(B)
If there is no last ordered monthly support amount, the monthly support amount
used to calculate the arrearage amount specified in the order or judgment for
arrearage.
(C)
If there is no last ordered monthly support amount and if there was no monthly
support amount, an amount calculated under the formula established under ORS
25.275. For purposes of this subparagraph, this calculation shall be based on
the obligor’s current monthly gross income or, if the obligor’s current monthly
gross income is not known, the Oregon hourly minimum wage converted to a
monthly amount based upon a 40-hour workweek, zero income for the obligee, and one joint child, regardless of how many
children the parties may actually have. No rebuttals to this calculation may be
allowed.
(d)
Notwithstanding the amount determined to be withheld under paragraph (c) of
this subsection, the obligor must retain disposable monthly income of at least
160 times the applicable federal minimum hourly wage prescribed by section 6
(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) or any future
minimum hourly wages prescribed in that section, if the order to withhold is
issued for:
(A)
Disability benefits payments from the United States Social Security
Administration;
(B)
Black lung benefits payments from the United States Department of Labor; or
(C)
Disability benefits payments from the United States Department of Veterans
Affairs.
(2)
The amount to be withheld from unemployment compensation under ORS chapter 657
is calculated as follows:
(a)
If withholding is for a current support order, regardless of the existence of
arrearage, the amount to be withheld is the lesser of:
(A)
Twenty-five percent of the benefits paid; or
(B)
The current monthly support obligation. The entity issuing the order to
withhold may convert the monthly support obligation amount to a percentage to
be withheld from each benefits payment.