Ninth Judicial Circuit Court
FRIEND OF THE COURT HANDBOOK - ENFORCEMENT OF SUPPORT
The FOC is required to automatically begin enforcement action against a payer whose arrearage is in an amount equal to at least one month of support. This is to be done without waiting for a complaint or request for enforcement from the recipient.
The FOC has many options available to enforce delinquent support orders. These options include:
Immediate Income Withholding Orders
An income withholding order requires the payer's employer or other source of income to withhold support from the payer for the payment of support obligations. All support orders issued in Michigan must provide for an order of income withholding. The law requires that income withholding be immediately effective except in rare, specifically defined instances.
Even in these exceptional instances, withholding will be implemented where arrearage in an amount equal to one month of support accumulates.
If the payer lives out-of-state and gets behind in making his or her support payments, the FOC may begin an interstate income withholding action.
All support orders must provide for immediate income withholding. It does not matter whether the support is behind or not; withholding is automatic without regard to whether an arrearage exists. The support amount is taken directly from a payer's check in a manner similar to income tax and social security payments.
It may take several weeks for the income withholding to start working, i.e. for an employer to begin making deductions from a paycheck. Until the withholding begins, it is the responsibility of the payer to make payments directly to the FOC (in cash or cashier's check) so that no arrearage builds up. If an overpayment occurs, it will be returned to the payer only if the account balance is paid one month in advance; otherwise it will be credited to your account.
In some limited situations, the parties may agree in writing not to have income withholding take effect. The court also has authority to delay income withholding if the Judge finds that it would not be in the best interests of the child for withholding to occur.
Show Cause Hearing
If an order for income withholding is not effective, the FOC may begin a civil contempt proceeding by filing a petition with the court for an order to show cause which will require the payer to appear in court. This is called a "show cause hearing" because it provides the person accused of violating the Court's order the chance to "show cause", i.e. explain to the court why he or she should not be held in contempt of court for the alleged violation of the order.
If a show cause hearing is held and the payer appears, the Judge or Referee will decide whether the person is in contempt and what action should be taken. The payer of support has a right to be represented by an attorney. If it appears that the court may incarcerate the payer, the court is required to appoint an attorney for payers who request an attorney if the court finds the payer cannot afford to pay for an attorney.
If the show cause hearing is held and the payer does not appear, a bench warrant for the payer's arrest will issue. Once the court issues a bench warrant, the responsibility for the payer's arrest lies with the local law enforcement agencies. The FOC staff has no authority to arrest anyone. A bench warrant for failure to appear at a contempt of court hearing is only valid within Michigan.
Income Tax Offset
If an arrearage exists, an income tax refund offset will be requested for cases that qualify (under federal law for arrears over $500, and for state arrears over $150). A tax offset means that any tax refund owed to a payer is sent to MiSDU in Lansing and applied to the support arrearage owed to either the custodial parent or the State. If your case/docket qualifies, you will receive a Notice. If you have been misidentified and are not the payer or if the arrearage amount is falls below the threshold ($150 for the State, $500 Federal), follow the instructions on the notice to obtain an Administrative review.
Federal regulations and State Court Administrative Office (SCAO) guidelines require that all cases meeting eligibility requirements for federal or state income tax refund offset be submitted for offset to the appropriate tax agency.
Federal law and regulations require that past due support owed to the state must be paid from any federal tax refund before the tax refund may be used to pay past due support owed to a recipient of support. State regulations require that past due support owed to the recipient must be paid with state tax refunds before the refunds may be used to apply to arrears due to the state.
Payers' tax refunds can be taken by both the state and federal governments, if arrears warrant it. Sometimes a payer of support has a debt to the state and/or federal government for back taxes. Payment of these debts may be taken from the payers tax refund before any tax refund is sent to the FOC to pay past due support.
If the payer has remarried and has filed a joint federal tax return, money from the offset of the tax refund may be held for up to six months before processing. The recipient is liable for the return of amounts paid to him or her in error, including those adjusted due to a payer and his or her current spouse filing an amended federal tax return to obtain the spouse's share of a joint refund.
Recipients of support who apply for and receive Temporary Assistance to Needy Families (TANF) agree to give the state certain rights to past due support owed to them at the time their TANF begins. They also agree to give the state support which becomes due while TANF continues; this is required by Federal law and state regulations as a condition of receiving TANF.
If the recipient of support receives Medicaid benefits, medical support may be directed to the State during the term in which the recipient is receiving those benefits.
In some cases, the FOC may be able to obtain a lien on a payer's property. A lien may be imposed when
a) There have been many lapses in payments; or
b) A large arrearage exists; or
c) Efforts to collect current support are successful, but efforts to collect arrearage have not been successful; or
d) The youngest child is over 18 and arrearage cannot be collected in a reasonable period of time; or
e) The person owing the money would benefit from not having a lien imposed.
For more information, write the Support Enforcement unit of the FOC.
A cash bond is a payment of a specific amount of money to guarantee future support payments will be made. A cash bond may be required when there is a large arrearage or a history that shows the payer cannot be relied upon to keep support payments current; or where the payer has threatened to sell assets to avoid payment of future support.
Real property is used as collateral.
Property Seizure and Withholding
Property of the payer may be seized and liquidated or sold, with the proceeds applied to the child support debt.
Financial Institution Data Match (FIDM)
When the qualifying arrearage threshold of 12 months of current support or $2500 for arrears-only cases is met, then FIDM (the process of matching delinquent payers against records of their financial accounts) can be used. Accounts subject to Data Match and seizure include:
Time Deposit accounts
Money Market Mutual Fund accounts
Effective October 1, 2006, payers are to be submitted for the Passport Denial program when their arrears balance reaches $2500. Once in the program, the payer remains there until all arrears are paid to zero.
Credit Bureau Reporting
The federal criterion for credit bureau referral is two months of support arrears or $1,000 in arrears-only cases. Qualifying cases are selected and sent a letter informing the obligor of the intent to report. Once the system reports late payment information to a credit bureau agency it will continue monthly reporting until the debt is paid in full. Once the arrearage balance is zero, the agency is automatically notified that they are to remove the member from further reporting.
Payers who have arrears greater than two months may be selected to have their occupational, recreational or driver's licenses suspended. A Payer can avoid a license suspension by showing that arrearage is less than two months, or by entering into an agreement acceptable to the court for the payment of the past due support.
If a support arrearage has accrued and there is reason to believe that the payer transferred title or ownership of real or personal property for less than the property was worth the FOC may seek to have the transfer of ownership set aside.
The Friend of the Court can refer a case to the County Prosecutor after the Enforcement Officer assigned to the case determines it meets the necessary criteria for referral. The Enforcement Officer must determine that all other child support collection methods have not been successful. Additional considerations, including how much child support arrears are owed, may be determined by the Prosecuting Attorney's Office. After a thorough review and investigation, the County Prosecuting Attorney may charge the person with Felony Non-Support. The case may also be referred to the Michigan Attorney General for Felony Non-Support prosecution.