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WHEN CAN THE OFFICE OF RECOVERY SERVICES (“ORS”) COLLECT ALIMONY?

December 6, 2017 

Arnold Wadsworth Coggins

This issue causes a lot of heartache because ORS does not uniformly implement its regulations.  Implementation often depends on the caseworker, which is very frustrating. Here is the regulatory rule governing the issue. (R527-34-2):

Collect and enforce current and past-due spousal support (alimony) on all IV-A and Non-IV-A cases if the following criteria are met:

  1. A spousal support order has already been established by the court.  (CSS will not establish a current spousal support amount);
  2. A child support obligation exists (i.e., current and/or arrears) and CSS is enforcing the debt;
  3. The CP resides with at least one child for which CSS is currently enforcing a child support obligation (current and/or arrears);

                If the NCP claims that the child(ren) does not reside with the CP, contact the CP to inform him/her of federal regulation 45 CFR 302.31(a)(2) requiring IV-D offices to provide spousal support services only when the CP resides with the child(ren) and ask him/her to confirm or deny the NCP’s claim.  If the CP claims that the child:

  1. Resides with him/her – determine if the child(ren) has emancipated:
  2. Minor – if the child(ren) is in the home and is not emancipated, continue to collect spousal support until the spousal support order is modified in court.  The NCP is responsible to modify the order.
  3. Emancipated – if the child(ren) is legally emancipated, inform the NCP and CP that CSS will no longer collect or enforce the spousal support unless/until the matter is resolved in court.
  4. Does not reside with the CP – if the CP confirms that the child no longer resides with him/her, inform the NCP and the CP that CSS will no longer collect or enforce spousal support.
  5. The spousal support order is more than a token amount (e.g., more than $1.00 per month, etc.);
  6. The CP is not remarried; and,

NOTE:  If the CP gets remarried, end the spousal support debt/obligation effective the month following his/her remarriage.

  • The CP is not cohabitating with another person.  Cohabitating means living together in a sexual relationship.

If the NCP claims that the CP is cohabitating with another person, contact the CP and ask him/her to confirm or deny the NCP’s claim.  If the CP:

  1. Denies cohabitation – determine if the child(ren) has emancipated:
  2. Minor – if the child(ren) is in the home and is not emancipated, continue to collect spousal support until the spousal support order is modified in court.  The NCP is responsible to modify the order.
  3. Emancipated – if the child(ren) is legally emancipated and ORS is collecting child support arrears, inform the NCP and CP that CSS will no longer collect or enforce the spousal support unless/until the matter is resolved in court.
  4. Confirms cohabitation – if the CP confirms that s/he is cohabitating with another person, inform the NCP and the CP that CSS will no longer collect or enforce spousal support.

Spousal Support Collection

Spousal support and child support case handling and collection procedures are generally the same, which means CSS may utilize all collection/enforcement methods for spousal support debt(s).  Tax refund intercept(s) may be applied to past due spousal support, if the conditions stated in subsection Criteria (above) are met.  For more information and procedures, refer to the appropriate collection enforcement sections of Volume 2.

Once the child(ren) emancipate and there are no child support arrears, CSS is no longer authorized to collect spousal support pursuant to federal and state laws, 45 C.F.R.§302.31, Utah Code Annotated §62A-11-303 and 401.

NOTE:  The spousal support debt should be ended on ORSIS effective the first day of the month following the date the last child emancipates and/or there are no longer any child support arrears due and owing on the case.

If spousal support is still owed to the CP, s/he may pursue the spousal support privately.

Matt Wadsworth is a partner at Arnold, Wadsworth & Coggins and a licensed Real Estate Agent (theattorneyrealtors.com).  He is an Avvo rated 10 out of 10 practitioner in the areas of divorce, family law and bankruptcy.

 WRITTEN BY ARNOLD WADSWORTH COGGINS

Arnold, Wadsworth & Coggins Attorneys is a premier Utah law firm serving the Wasatch Front in the areas of family law, bankruptcy, criminal law, and civil litigation. Our attorneys provide clients with exceptional legal representation and personal attention. With over 35 years of trial practice and litigation experience, we bring big firm expertise at affordable rates