Child support: the price of not paying: tools for enforcing child-support collection: Illinois child-support obligors who refuse to pay risk losing driving privileges, professional licenses, the right to hunt or fish, and other serious penalties. This article describes enforcement incentives available to obligees.
Total child-support collections for fiscal year 2007 was $1.22 billion, a 7 percent increase from 2006. (1) In fiscal year 2008 child-support collections reached over 1.33 billion, an 8 percent increase from 2007. (2) Support collection is a big business.
And a serious business. It is a crime not to pay child support. The nonpaying obligor can be charged up to a class 4 felony.
Illinois child-support obligees have many options for enforcing and collecting an arrearage on court-ordered child support. A nonpaying obligor can lose his or her driving privileges or professional license, have his tax refund intercepted and lottery winnings dunned, and suffer other serious consequences. The key agency in this effort is the Division of Child Support Enforcement of the Illinois Department of Human Services ("DCSE").
This article catalogs and describes the various child-support enforcement programs available to obligees.
Passport denial or suspension (3)
42 USC section 652(k) provides for the denial, revocation, and restriction of United States passports in cases where there is an arrearage of more than $2,500. It states in pertinent part:
(1) If the Secretary [of Health and Human Services] receives a certification by a State agency in accordance with the requirements of section 654(31) of this title that an individual owes arrearages of child support in an amount exceeding $2,500, the Secretary shall transmit such certification to the Secretary of State for action (with respect to denial, revocation, or limitation of passports) pursuant to paragraph (2).
(2) The Secretary of State shall, upon certification by the Secretary [of Health and Human Services] transmitted under paragraph (1), refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual.
(3) The Secretary [of Health and Human Services] and the Secretary of State shall not be liable to an individual for any action with respect to a certification by a State agency under this section.
The Illinois passport denial program, (4) which is part of the Federal Offset Program, (5) bars obligors with child-support arrearages from obtaining a new passport or renewing an existing passport. (6) The DCSE provides the State Department with up-to-date listings of Illinois' most serious child-support obligors who owe arrearages. An obligor cannot obtain a passport until the arrearage is paid in full.
Now that everyone traveling in and out of the Untied States for business and leisure by air needs a passport, with land and sea travelers needing a passport by 2009, child-support obligees should continue to see a jump in the collection.
The DCSE is a leader in collecting child support through the federal Passport Denial program. In 2006, Illinois was one of only six states to collect over $1 million through passport denial, netting $1.14 million. (7) In addition, passport denial collections in Illinois jumped by 43 percent in 2006, surpassing the national increase of 33 percent. (8) Illinois is also one of only seven states to collect over $3 million in child support due through the Passport Denial Program since its inception in 1998. (9)
Intercepting federal and state tax refunds (10)
The federal program enforces delinquent child-support obligations by intercepting part or all of the obligor's federal income tax refund. The Federal Income Tax Refund Offset Program was enacted into law through the Omnibus Budget Reconciliation Act of 1981 section 2331 of PL 97-35.
When first enacted, it was restricted to public aid recipients. However, in 1984 the program was expanded for its use in non-public assistance cases.
To intercept an obligor's federal and state refund, the obligee can contact the DCSE. The obligor must have an arrearage of at least $500. (11) The DCSE will report the outstanding arrearage to the Illinois Department of Health and Family Services, the Illinois State Comptroller, the Illinois Secretary of State, the Illinois Department of Revenue, the United States Treasury, or the State Department and the Internal Revenue Service. Action may then be taken by these entities to limit the obligor's receipt of federal and state income tax refunds.
Accounts that meet the criteria to be submitted for the federal offset program are also sent to the Illinois Department of Employment Security for offset of unemployment benefits.
Any intercepted Illinois tax return money received from the Illinois State Comptroller is paid directly to the obligee. If any money remains, it is paid to the state to reimburse for any public assistance that may have been made to the obligee. (12)
Suspension or revocation of an Illinois professional license or occupational certificates (13)
The DCSE can receive licensing information from a variety of state agencies to pursue the non-renewal or revocation of a license including professional, occupational or recreational licenses if an obligor is delinquent or has an arrearage more than 90 days old, owes an arrearage of $500, and is not following a payment plan. (14)
An obligee can request a hearing in a court of competent jurisdiction and request the revocation of the obligor's professional, occupational, or recreational license. Should the court order the revocation or suspension of the license, the order removes the right of the obligor to practice the profession in Illinois. (15)
An obligor must be aware that failure to make timely payments of child support may also be grounds for professional discipline, such as the disbarment of an attorney or placing a physician on probation. (16)
Denial of hunting and fishing licensed (17)
In October 2007 the Department of Healthcare and Family Services identified nearly 6,000 parents who owed more than $60 million in child support through the Illinois Department of Natural Resources new point-of-sale system. (18) From September to December 2007 the DCSE collected $109,000 from 171 child-support obligors during the first three months using the Illinois Department of Natural Resources new point-of-sale system,"which enables a licensing agency to identify deadbeat parents who apply for hunting or fishing licenses. (20) If the applicant owes more than $1,000 in child-support payments, they will not be issued a license. The new licensing period began April 1, 2008.
Intercepting lottery winnings (21)
The DCSE can provide the name and social security number of the obligor who is in arrears to the state lottery agency. (22) The agency can compare the names and social security numbers with those persons claiming lottery prizes. If a match is made between a prizewinner and an obligor, the DCSE will work with the Illinois State Comptroller to intercept the amount due from the lottery winnings.
If the obligor owes at least an arrearage of $10,000, the DCSE may place a lien on the obligor's residence, any other real estate, and personal property owned by the obligor. (24) Liens on personal property are enforced by levy and sale under a writ of execution, a writ of replevin, or an order to withhold and deliver.
Private collection agencies (25)
If the obligor owes at least $500, the DCSE can hire private collection agencies to help collect the arrearage. (26)
Suspension of an Illinois driver's license
625 ILCS 5/7-100 et seq (the Family Financial Responsibility Law), 750 ILCS 5/505(b), 750 ILCS 45/15(b)(3), and 625 ILCS 5/6-103 (14.5) control the suspension of an obligor's Illinois driver's license, once the obligor is found in arrears. The obligor does not first have to be held in contempt of court before his or her driver's license is suspended. The law only requires an authenticated report stating the arrearage is more than 90 days overdue.
750 ILCS 5/505(b) and 750 ILCS 45/15(b)(3) both state the following:
The court may also order in cases where the parent is 90 days or more delinquent in payment of support or has been adjudicated in arrears in an amount equal to 90 days obligation or more, that the parent's Illinois driving privileges be suspended until the court determines that the parent is in compliance with the order of support. The court may also order that the parent be issued a family financial responsibility driving permit that would allow limited driving privileges for employment and medical purposes in accordance with Section 7-702.1 of the Illinois Vehicle Code. The clerk of the circuit court shall certify the order suspending the driving privileges of the parent or granting the issuance of a family financial responsibility driving permit to the Secretary of State on forms prescribed by the Secretary. Upon receipt of the authenticated documents, the Secretary of State shall suspend the parent's driving privileges until further order of the court and shall, if ordered by the court, subject to the provisions of Section 7-702.1 of the Illinois Vehicle Code, issue a family financial responsibility driving permit to the parent.
625 ILCS 5/7-702 states:
(a) The Secretary of State shall suspend the driver's license issued to an obligor upon receiving an authenticated report provided for in subsection (a) of Section 7-703, that the person is 90 days or more delinquent in court ordered child support payments or has been adjudicated in arrears in an amount equal to 90 days obligation or more, and has been found in contempt by the court for failure to pay the support.
(b) The Secretary of State shall suspend the driver's license issued to an obligor upon receiving an authenticated document provided for in subsection (b) of Section 7-703, that the person has been adjudicated in arrears in court ordered child support payments in an amount equal to 90 days obligation or more, but has not been held in contempt of court, and that the court has ordered that the person's driving privileges be suspended. The obligor's driver's license shall be suspended until such time as the Secretary of State receives authenticated documentation that the obligor is in compliance with the court order of support. When the obligor complies with the court ordered child support payments, the circuit court shall report the obligor's compliance with the court order of support to the Secretary of State, on a form prescribed by the Secretary of State, and shall order that the obligor's driver's license be reinstated.
Under 625 ILCS 5/7-702.1 the court can order the Illinois Secretary of State's office to provide the obligor with a family financial responsibility driving permit to allow travel for work, or medical purposes. Section 7-702.1 states in pertinent part:
Following the entry of an order that an obligor has been found in contempt by the court for failure to pay court ordered child support payments or upon a motion by the obligor who is subject to having his or her driver's license suspended pursuant to subsection (b) of Section 7-703, the court may enter an order directing the Secretary of State to issue a family financial responsibility driving permit for the purpose of providing the obligor the privilege of operating a motor vehicle between the obligor's residence and place of employment, or within the scope of employment related duties; or for the purpose of providing transportation for the obligor or a household member to receive alcohol treatment, other drug treatment, or medical care. The court may enter an order directing the issuance of a permit only if the obligor has proven to the satisfaction of the court that no alternative means of transportation are reasonably available for the above stated purposes. No permit shall be issued to a person under the age of 16 years who possesses an instruction permit. Upon entry of an order granting the issuance of a permit to an obligor, the court shall report this finding to the Secretary of State on a form prescribed by the Secretary. This form shall state whether the permit has been granted for employment or medical purposes and the specific days and hours for which limited driving privileges have been granted. The Secretary of State shall, upon receipt of a certified court order from the court of jurisdiction, issue a family financial responsibility driving permit. In order for this permit to be issued, an individual's driving privileges must be valid except for the family financial responsibility suspension. This permit shall be valid only for employment and medical purposes as set forth above. The permit shall state the days and hours for which limited driving privileges have been granted.
Illinois license suspensions are honored by 40 other states and the District of Columbia, limiting an obligor's options for obtaining a new driver's license elsewhere. (27)
Impoundment of a vehicle
Effective October 23, 2007, the Illinois Public Aid Code expanded Illinois' powers to allow for the immobilization and impoundment of a motor vehicle for an obligor who is in child-support arrears.
305 ILCS 5/10-17.13 states:
The Illinois Department may provide by rule for certification to municipalities of past due support owed by responsible relatives under a support order entered by a court or administrative body of this or any other State on behalf of resident or non-resident persons. The purpose of certification shall be to effect collection of past due support by immobilization and impoundment of vehicles registered to responsible relatives pursuant to ordinances established by such municipalities under Section 11-1430 of the Illinois Vehicle Code. (28) The rule shall provide for notice to and an opportunity to be heard by each responsible relative affected, and any final administrative decision rendered by the Department shall be reviewed only under and in accordance with the Administrative Review Law. A responsible relative may avoid certification to a municipality for vehicle immobilization or arrange for discontinuance of vehicle immobilization and impoundment already engaged by payment of past due support or by entering into a plan for payment of past and current child support obligations in a manner satisfactory to the Illinois Department.
Consumer reporting and publication of deadbeat parents
305 ILCS 5/10-16.4, 750 ILCS 5/706.3, and 750 ILCS 45/20.5 all contain corresponding provisions providing for the publishing of names of delinquent support obligors. 750 ILCS 5/706.3 states as follows:
(b) Whenever a court of competent jurisdiction finds that an obligor either owes an arrearage of more than $10,000 or is delinquent in payment of an amount equal to 3 months' support obligation pursuant to an order for support, the court shall direct the clerk of the court to make information concerning the obligor available to consumer reporting agencies.
(c) Whenever a court of competent jurisdiction finds that an obligor either owes an arrearage of more than $10,000 or is delinquent in payment of an amount equal to 3 months' support obligation pursuant to an order for support, the court shall direct the clerk of the court to cause the obligor's name and address to be published in a newspaper of general circulation in the area in which the obligor resides. The clerk shall cause the obligor's name and address to be published only after sending to the obligor at the obligor's last known address, by certified mail, return receipt requested, a notice of intent to publish the information. This subsection (c) applies only if the obligor resides in the county in which the clerk of the court holds office.
The Illinois Department of Public Aid Web site posts photographs of obligors who owe an arrearage of more than $5,000 and have made no voluntary payments in 90 days. These cases, however, are only publicized if the obligee grants authorization to do so. (29)
The Ted Weiss Child Support Enforcement Act of 1992 (Public Law 102537) amended the Fair Credit Reporting Act to require consumer credit reporting agencies to include in any consumer report information on child-support arrearage. This Act requires states to periodically report to consumer reporting agencies the names of parents owing at least two months of overdue child support and the amount of support overdue.
Deadbeat Parents Punishment Act (30)
The Deadbeat Parents Punishment Act established felony violations for traveling interstate or to a foreign country to evade a child-support obligation or for failing to pay a child-support obligation that is greater than $10,000 or has remained unpaid for a period longer than two years.
18 USC section 228 states in pertinent part:
(a) Offense. Any person who--(1) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; (2) travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or (3) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000; shall be punished as provided in subsection (c).
(c) Punishment. The punishment for an offense under this section is--
(1) in the case of a first offense under subsection (a) (1), a fine under this title, imprisonment for not more than 6 months, or both; and (2) in the case of an offense under paragraph (2) or (3) of subsection (a), or a second or subsequent offense under subsection (a) (1), a fine under this title, imprisonment for not more than 2 years, or both.
(d) Mandatory restitution. Upon a conviction under this section, the court shall order restitution under section 3663A in an amount equal to the total unpaid support obligation as it exists at the time of sentencing.
Enforcement of support after a child turns 18
In 2001, section 505 of the Illinois Marriage and Dissolution of Marriage Act was amended to allow collection of child support by an obligee after a child reaches 18. 750 ILCS 5/505(1) states that "[t]he court does not lose the powers of contempt, driver's license suspension, or other child support enforcement mechanisms, including, but not limited to, criminal prosecution as set forth in this Act, upon the emancipation of the minor child or children."
The amendment over-turned the ruling of Fritch v Fritch, (31) where the first district appellate court held that the trial court erred by entering a contempt finding against a father as a means to enforce payment of a child-support arrearage where children had reached majority.
Qualified Domestic Relations Orders (QDRO)
If the obligor in child-support arrears has a pension or retirement plan through his or her employer, federal law allows a QDRO to be entered to satisfy a child-support arrearage judgment. A QDRO is an order directing a retirement plan administrator to pay all or a portion of the employee's retirement benefits to the other spouse.
Federal law allows a QDRO to be used to enforce child-support payments. The Retirement Equity Act of 1984 sections 104, 204; 29 USC section 1056(d) (3)(B)(ii); and 26 USC section 414(p)(1) (B) defines a QDRO as "any judgment, decree, or order ... which: (i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (ii) is made pursuant to a State domestic relations law (including a community property law)."
Because not all retirement plans can be divided by a QDRO, the obligee must determine whether a QDRO can be entered against the obligor's plan. In Illinois, a retirement plan set up under the provisions of the Illinois Pension Code is not subject to division through a QDRO, and federal plans are also exempt.
To collect an arrearage in child support by entry of a QDRO, the obligee must conduct discovery to obtain the obligor's account statements, summary plan description, and possibly a model QDRO for the retirement plan. The amount of the arrearage should also be determined and combined with the statutory interest added to the arrearage total.
If you represent the obligee, make sure the QDRO states that the distribution is to make payment of a child-support arrearage and that the distribution is taxable to the plan participant and not the obligee.
QDROs are technical documents. Drafting QDROs and obtaining the approval of the plan administrators to transfer the funds to an ex-spouse is a difficult task and should be performed by professionals in anticipation of the QDRO being drafted correctly.
Public Act 94-0087, effective January 1, 2006, allows an obligor to give certain information to a currency exchange so that child-support payments can be made at the currency exchange, allowing the obligor more access to places where child-support payments can be made. The currency exchange will then forward the payments and case-identifying information to the SDU for delivery to the obligee.
Public Act 94-0090, also enacted in 2006, simplifies the calculation and distribution of interest on unpaid child support and ensures that the collections of interest are paid to the family first.
The net for child-support enforcement is now large. The big fish are surely caught and even the small fish will find it difficult to swim through.
(1.) Press release, Office of the Governor, Governor Blagoievich announces over $1 billion in child support collections for Fiscal Year 2008, July 11, 2008, available at http://www.illinois.gov/ PressReleases/PressReleasesListShow.cfm?RecNum=7015.
(2.) Press release (cited in note 1). These statistics are staggering because just 7 years ago, in 2000, the Illinois' child support system was ranked among the worst in the nation. Id.
(3.) 42 USC [section]652(k).
(4.) 89 Ill Adm Code 160.70.
(5.) 42 USC [section]652.
(6.) Press release, Office of the Governor, Blagoievich announces Passport Denial Program nets $89,000 for mother of four from Deadbeat parent in Germany, March 7, 2004, available at http://www.il.gov/PressReleases/ ShowPressRelease.cfm?SubjectID=3&RecNum=2832
(7.) Press release, Office of the Governor, Governor Blagolevich announces Illinois a national leader in child support collections through passport denial, February 20, 1997, available at http//www.illinois.gov/PressReleases/ ShowPressRelease.cfm?SubjectID=2&RecNum=5726).
(10.) 15 ILCS 405/10.05a, 20 ILCS 2505/2505-650, 305 ILCS 5/10-17.1, 305 ILCS 5/10-17.5, 31 USC 3701 et seq, and 89 111 Adm Code 160.70.
(11.) 89 Ill Adm Code 160.70.
(13.) 305 ILCS 5/10-17.6; 5 ILCS 100/10-65.
(16.) SCR 770, RPC 8.4 (a)(3) & RPC 8.4(a)(4).
(17.) 305 ILCS 5/10-17.6.
(18.) Press release, Office of the Governor, Governor Blagotievich announces more than $100,000 in child support collected in first three months of Department of Natural Resources partnership, February 12, 2008, available at http//www.illinois.gov/ PressReleases/ShowPressRelease.cfm?SubjectID=2&RecNum=6611.
(21.) 305 ILCS 5/10-17.5, 20 ILCS 1605/13, see also http://www.itchildsupport.com/csbrochures/hfs1759.html
(23.) 89 Ill Adm Code 160.70, Article X of the Illinois Public Aid Code [305 ILCS 5/Art. X], Article XII of the Code of Civil Procedure [735 ILCS 5/Art. XII].
(24.) 89 111 Adm Code 160.70.
(25.) 225 ILCS 425/2.04.
(26.) Id, 30 ILCS 210/10, 42 USC [section]651 et seq.
(27.) Illinois Municipal Review, September 1996, Page 9, Deadbeats Don't Drive Law Offers New Enforcement Tool, By Secretary of State George H. Ryan.
(28.) 625 ILCS 5/11-1430.
(29.) See www.ilchildsupport.com/deadbeats.
(30.) 18 USC [section] 228 (www.fbi.gov).
(31.) 224 Ill App 3d 29, 586 NE2d 427 (1st D 1991).
Sara L. Busche o f the Woodstock family law firm, Gitlin, Busche & Stetler has a family law practice with a focus on child support and child custody.
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|Author:||Busche, Sara L.|
|Publication:||Illinois Bar Journal|
|Date:||Jan 1, 2009|
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