- at the heart of it!♥

A State’s Guide to Understanding the Differences between UIFSA 1996, 2001 and 2008

SPEAKER:

Susan F. Paikin, Esq

UIFSA: History of a Revolution

• 1992 - National Conference of Commissioners on Uniform State Laws

(NCCUSL) – now known as the Uniform Law Commission (ULC) - promulgated

the Uniform Interstate Family Support Act (UIFSA) to replace the Uniform

Reciprocal Enforcement of Support Act (URESA) and the revised version

RURESA. – Arkansas and Texas adopted UIFSA in 2003

– 35 states enacted UIFSA by summer 2006 when….

• 1996 – significant amendments adopted (July)– Drafters responded to requests from employer groups for more specific statutory direction re interstate

income withholding

– IV-D “community” requested review of substantive and procedural provisions

• 1996 – PRWORA mandated states enact UIFSA as a condition

of state eligibility for federal IV-D funding (August)

– Section 466(f) of the Social Security Act requires UIFSA including “any

amendments officially adopted before 1/1/98”

• 1998 – all U.S. jurisdictions had enacted UIFSA

UIFSA: History of a Revolution

• 2001- significant amendments adopted by ULC

– Changes requested by the child support enforcement community

– Recognized bi-lateral agreements authorized by PRWORA

• 2002 – OCSE-AT-02-02 issued May 17, 2002, EXEMPTION

FROM ENACTING UIFSA 1996:OCSE has determined that it may grant a request for an exemption from the requirement to

implement [42 U.S.C. 666(f)] if a state adopts UIFSA 2001. Under this exemption, states will not be

required to provide the cost-effectiveness data specified in Action Transmittal 97-02 in order to request

an exemption from the requirement in [42 U.S.C. 666(f)].

To receive an exemption from [42 U.S.C. 666(f)], a state must establish that adopting UIFSA 2001

does not interfere with the effectiveness and efficiency of interstate case processing.

• 2008 – significant amendments adopted by ULC

– Revisions limited to those required to implement appropriate provisions of

the new Hague Maintenance Convention into state law

UIFSA 2001

• UIFSA (2001) The Personal Responsibility and Work Opportunity Reconciliation

Act (PRWORA) of 1996 mandated that all states enact UIFSA (1996) (42 U.S.C.

§666(f)). All states complied. After passage of the UIFSA (2001) amendments,

OCSE-AT-02-02 notified states that they could request a state plan exemption

should they choose to enact UIFSA (2001). Twenty-two states now have UIFSA

(2001); the remaining states continue to have UIFSA (1996).

• UIFSA (2001) is in effect in 22 states: Arizona, Colorado, Connecticut,

Delaware, District of Columbia, Idaho, Illinois, Maine, Maryland, Mississippi,

Nebraska, Nevada, New Mexico, Oklahoma, Rhode Island, South Carolina, Texas,

Utah, Virginia, Washington, West Virginia, and Wyoming. All have received a

state plan exemption from OCSE.

• UIFSA (2001) was enacted in California years ago but is effective only upon

federal waiver or change in federal mandate from 1996 to 2001; a state plan

exemption request has not been submitted to OCSE.

UIFSA 2001: The Details

• Comprehensive review of changes from UIFSA (1996) to UIFSA (2001)

are found in OCSE’s TEMPO: 2001 Revisions to the Uniform Interstate

Family Support Act (UIFSA)

http://www.acf.hhs.gov/sites/default/files/ocse/im_03_01a1.htm

• Uniform Interstate Family Support Act (2001) with Prefatory Note and

Comments (With Still More Unofficial Annotations), John J. Sampson,

Reporter, with Barry J. Brooks, Family Law Quarterly, Vol. 36, No. 3 (Fall

2002)

• UIFSA: the 21st Century Evolution © Barry J. Brooks (publication

forthcoming)

UIFSA 2001

Amendments clarify or enhance UIFSA 1996 – do not

conflict!

• Determination of a Controlling Order (DCO) [207]– Tribunal must have personal jurisdiction over both parties

– Clarifies may request DCO when registering order for enforcement,

registering for modification or as a stand alone proceeding• If multiple order exist, provide all orders and assert which is controlling

– Added requirement on tribunal to determine consolidated arrears

when making a DCO, stating “the total amount of consolidated

arrears and accrued interest, if any, under all of the orders after all

payments made are credited as provided by section 209.”

– IV-D agency must gather information re multiple orders [307]

UIFSA 2001

• Modification

– Clarify that CEJ is a concept that applies to the jurisdiction to

modify a child support order [205(e)]

– Added ability for individual parties to consent to issuing tribunal to

retain CEJ even though no one resides there [205(a)]

– Long-arm jurisdiction not available to obtain jurisdiction in a

modification proceeding.• Section 201(b) explicitly states that the bases of personal jurisdiction set forth in

subsection (a) or in any other law of the state may not be used to acquire personal

jurisdiction for a tribunal of the state to modify a child support order of another

state unless the requirements of sections 611 or 615 are met.

– Addresses the circumstances under which a tribunal has authority

to modify another state’s child support order once it is registered for

modification – or does not have such authority

– Specifies that duration is not modifiable by the tribunal of another

state. [611(c) and (d)]

UIFSA 2001

• Redirection of Payments

– Where no individual party resides in issuing state, IV-D agency can

ask issuing tribunal to order child support payments be made to IV-

D agency where the custodial parent resides [319 and 307(e)]• If requested, tribunal must redirect payments

• Controlling order does NOT change

• Non-disclosure of Information

– Language amended to read like UCCJEA [312]

• Direct Income Withholding

– Obligor may contest DIW by registering the income withholding

order using UIFSA’s registration procedure (in addition to any

procedure available to contest an intrastate income withholding

order)

UIFSA 2001

• Evidentiary Provisions– Physical presence of an individual nonresident party (i.e., the petitioner or

the respondent) cannot be required in a tribunal [316(a)]

– Eliminates the requirement that an affidavit or other document must be

given under oath in order to be admissible in evidence; sufficient if the

information is provided under penalty of perjury [316(b)]

– Communication between tribunal includes international cases [317]

• Choice of Law– Law of the issuing state governs the computation of arrears and accrual of

interest on arrears under the support order.

– Prior to DCO, the arrears - including interest - under each order should be

calculated using the law of the state that issued that order.

– After DCO, the law of the controlling order state governs, “including its law

on interest on arrears, on current and future support, and on consolidated

arrears.”

UIFSA 2001

• International Cases

– Definition of “state” expanded to include:

101(21)(B) a foreign country or political subdivision that:

• (i) has been declared to be a foreign reciprocating country or political subdivision

under federal law;

• (ii) has established a reciprocal arrangement for child support with this State as

provided in Section 308; or

• (iii) has enacted a law or established procedures for the issuance and enforcement

of support orders which are substantially similar to the procedures under this [Act].

– “Jurisdiction to Modify Child-Support Order of Foreign Country or

Political Subdivision,” authorizes a U.S. tribunal to modify a foreign

support order when a tribunal of the foreign country or political subdivision

would have jurisdiction to modify its order under the rules of UIFSA, but

under the law or procedure of that foreign country or political subdivision,

the tribunal will not or may not exercise that jurisdiction to modify [615]

– Support enforcement agency must convert order to U.S. dollars in

international cases [307]

– References recognition of a foreign order on basis of comity [104]

UIFSA 2001

• Paternity

– Court must hear parentage action [701]

– Paternity acknowledgment admissible to establish paternity

[316]

– Amends UIFSA to match the Uniform Parentage Act [401]

• Definitions

– Throughout uses “in a record” instead of “in writing”

• “record” means information that is inscribed on a tangible medium or

that is stored in an electronic or other medium and is retrievable in a

perceivable form [101(15)]

– Eliminates URESA re “substantially similar” [e.g. 101(7)]

• Jurisdiction under UIFSA does not give a tribunal

jurisdiction in a custody/visitation proceeding.

UIFSA 2008

• Implements the Hague Convention

• Addresses international cases in general

• Built on UIFSA 2001

• In DCL-08-41, OCSE provided information for states interested in enacting UIFSA (2008)

prior to the change in federal mandate. States may enact UIFSA 2008 verbatim with a

provision that the effective date of its enactment will be delayed until the Treaty is ratified

and the United States deposits its instrument of ratification. States that choose to follow this

process do not need to request an exemption from OCSE.

UIFSA 2008

• Enacted in– Florida, Georgia, Maine, Missouri, Nevada, New

Mexico, North Dakota, Rhode Island, Tennessee,

Utah, Wisconsin

• However, they will not come into effect until (at least) the

Convention is ratified.

• 2013 introductions– Puerto Rico, Minnesota, and Washington

UIFSA 2008

• Hague Convention is not exclusive remedy for international

orders.

– UIFSA already contained provisions re: bilateral agreements

and state reciprocal agreements.

– A tribunal may also recognize a foreign order on basis of

comity.

• UIFSA is “bigger” than child support agency IV-D world.

– UIFSA covers spousal and child support.

• Some concepts – CEJ and DCO –

do not fit neatly in international arena.

UIFSA 2008

• Hague Convention is not exclusive remedy for

international orders.

– UIFSA already contained provisions re: bilateral

agreements and state reciprocal agreements.

– A tribunal may also recognize a foreign order on

basis of comity.

• UIFSA is “bigger” than child support agency IV-D

world.

– UIFSA covers spousal and child support.

• Some concepts – CEJ and DCO –

do not fit neatly in international arena

Definitions

New definition of “foreign country”

– UIFSA 2001 includes “qualified” foreign

countries within definition of State.

– UIFSA 2008 has a separate definition that

includes many, but not all, foreign

countries.

Definitions

New definition of “foreign country”

A country, including a political subdivision thereof, other than

the United States, that authorizes the issuance of support orders

and:

(A) Has been declared under US law to be a foreign reciprocating

country;

(B) Has established a state reciprocal arrangement for child support;

(C) Has law or procedures for the issuance and enforcement of support

orders which are substantially similar to UIFSA procedures; or

(D) In which the Convention is in force with respect to the United States.

Other Definitions

• “Outside this State” - a location in another state or a country other than

the United States, whether or not the country is a foreign country.

• “State” – a state of the United States, the District of Columbia, Puerto

Rico, the United States Virgin Islands, or any territory or insular

possession under US jurisdiction. Term includes an Indian nation or

tribe.

Road Map

SECTION 105. APPLICATION OF ACT TO

RESIDENT OF FOREIGN COUNTRY AND

FOREIGN SUPPORT PROCEEDING.

(a) A tribunal of this state shall apply Articles 1

through 6 and, as applicable, Article 7, to a support

proceeding involving:

– a foreign support order;

– a foreign tribunal; or

– an obligee, obligor, or child residing in a foreign

country.

Road Map

(b) A tribunal of this state that is requested to recognize and enforce a

support order on the basis of comity may apply the procedural and

substantive provisions of Articles 1 through 6.

(c) Article 7 applies only to a support proceeding under the Convention. In

such a proceeding, if a provision of Article 7 is inconsistent with Articles

1 through 6, Article 7 controls

Key Changes

Enforcement• Direct income withholding only for support orders issued by a state. No

longer requires US employers to honor DIW order/notice from foreign

countries.

• Administrative enforcement available for state income withholding

orders and support orders; foreign support orders.

Key Changes

Registration for Enforcement

• Procedure for non-Hague Foreign Support Orders

– UIFSA 2001

• Procedure for Hague Foreign Support Orders

– New Article 7

• Major difference – documents

required, time frames, defenses

Key Changes

Modification• Sections 609 – 614 limited to modification of orders

issued by a State (as newly defined)

• Section 611(f) is new. Provides that an issuing state

tribunal retains jurisdiction to modify its order if:

– One party resides in another state; and

– Other party resides outside the United States.

Key Changes

Modification• UIFSA 2001 Section 615 applies where foreign

country lacks or refuses to exercise its jurisdiction to

modify under its laws

– State tribunal may modify

• Regardless of consent

• Regardless of residence of petitioner

• Article 7 governs modification in Hague proceedings

– State tribunal may not modify if obligee remains

resident of issuing country

• Exceptions

Key Changes

Article 7 Defenses - Hague Foreign

Support Orders• Recognition and enforcement of order is manifestly incompatible with

public policy, including failure of issuing tribunal to observe minimum

standards of due process;

• Issuing tribunal lacked personal jurisdiction consistent with Section

201;

• Order is not enforceable in issuing country;

• Order was obtained by procedural fraud;

• Record transmitted in accordance with

Section 706 lacks authenticity or integrity;

Key Changes

Article 7 Defenses - Hague Foreign

Support Orders

• Proceeding between same parties with same purpose is pending before

tribunal of this state and that proceeding was filed first;

• Order is incompatible with a more recent order involving same parties

with same purpose if more recent support order is entitled to recognition

& enforcement under UIFSA;

• Full or partial payment has been made;

• If default order, there was a lack of due process re: notice & opportunity

to be heard; or

• Order was made in violation of Section 711 (limitation on modification)

Key Changes

Non-recognition of a Hague order

If a tribunal of a state does not recognize a

Convention support order because:

– There was a lack of personal jurisdiction

– There was procedural fraud

– A proceeding between same parties with same

purpose is pending before a tribunal of that state

and that proceeding was filed first

– The order is a default order but the notice and

opportunity to challenge did not satisfy due process

Key Changes

Then:

– the tribunal may not dismiss the proceeding

without allowing a reasonable time for a party to

request the establishment of a new Convention

support order.

– and the [governmental entity] must take all

appropriate measures to request a child-support

order for the obligee if the application for

recognition and enforcement was received through

the Central Authority system.

Key Changes

Procedure for registration & modification of

state child support orders

– UIFSA 2001

• Includes retaining jurisdiction by

consent even where CP, NCP and child

have left the issuing state

– Added new provision: A state tribunal retains jurisdiction to

modify an order it has issued if:

(1) one party resides in another state; and

(2) the other party resides outside the U.S.

Key Changes

Evidentiary Provisions

• May receive evidence from outside this state pursuant

to Section 316.

• May communicate with a tribunal outside this state

pursuant to Section 317.

• May obtain discovery through a tribunal outside this

state pursuant to Section 318.

Key Changes

Services by Support Enforcement Agency

State legislature may choose between 2 alternatives:

– Must, upon request, provide services to all petitioners

OR

– Must, upon request, provide services to a petitioner residing

in a state or requesting services thru a Central Authority

(Hague or bi-lat case) AND may, upon request, provide

services to an individual petitioner not residing in a state (all

other foreign cases)

- at the heart of it!♥

THANK YOU FOR YOUR TIME

SUSAN FRIEDMAN PAIKIN, ESQ.

Center for the Support of Families

Newark, DE

302-234-4806

spaikin@csfmail.org