Okla. Admin. Code § 340:25-5-140

Current through Vol. 42, No. 4, November 1, 2024

Section 340:25-5-140 - Past support

(a)Legal authority. Oklahoma Human Services, Child Support Services (CSS) takes appropriate action to collect support and secure compliance with support orders.

(1) When a support order does not specify an effective date, a payment is due on the first day of the month following the child support order's entry and on the first day of each month thereafter except when another state's law governs the due date.

(2) Current monthly child support is due for the entire month when the effective date is later than the first of the month. CSS does not pro rate the monthly amount based on the effective or ending date, unless the court orders otherwise.

(3) CSS determines past-due support and support for a prior period based on information in available records from courts, Title IV-D and other public and private agencies, the custodial persons (CPs), the noncustodial parents (NCPs), and others.

(4) CSS may require sworn written statements and supporting documents from CPs, NCPs, and others pertaining to support payments. The primary legal foundations for determination and collection of past-due support and support for a prior period are applicable provisions of:

(A) Part D of IV of Chapter 7 of Title 42 of the United States Code;

(B) Section 1738B of Title 28 of the United States Code (28 U.S.C. § 1738B);

(C) Chapters 302 and 303 of Title 45 of the Code of Federal Regulations; and

(D) Sections 83 and 7700-636 of Title 10 of the Oklahoma Statutes (10 O.S. §§ 83 and 7700-636), Chapters 3 and 21 of Title 12, Title 43, and 56 O.S. §§ 231 through 240.23.

(b)Definitions. The following words and terms, when used in this Section shall have the following meanings unless the context clearly indicates otherwise:

(1)"Abate" means, per 43 O.S. Section 118I, an NCP does not owe the child support obligation when incarcerated for 180-consecutive days. Upon eligibility, child support is no longer owed effective the first day of the month following the entry date into the correctional facility or jail and does not accrue for the duration of the incarceration.

(2)"Incarceration" means, per 43 O.S. Section 118I, an obligor is in custody on a fulltime basis in a local, state or federal correctional facility. Incarceration shall not include probation, parole, work release or any other detention alternative program that allows the obligor to be gainfully employed.

(c)Judgment payment. Per 43 O.S. § 137, the monthly payment schedule on past support may not exceed three years unless specific findings of fact supporting the action are made. CSS considers a three-year payment schedule to be unjust, unreasonable, inequitable, or inappropriate when CSS has evidence that the NCP cannot comply with a three-year payment plan. CSS requests a monthly payment schedule that may exceed three years in accordance with the best evidence available, including the NCP's earning records, past job history, earning ability based on education and training, and mental or physical incapacities. CSS also considers an NCP's other child support obligations and total arrears. The payment plan applies to the judgment determined in the order and any subsequent judgments by operation of law unless the payment plan has been modified by administrative or district court action.

(d)Enforcement.

(1) CSS takes action to enforce past-due support and support for a prior period, per Oklahoma Administrative Code (OAC) 340:25-5, Part 23.

(2) CSS collects amounts from the original child support order date, including any judgments for support for a prior period, and does not limit collection of past-due child support to amounts accruing from the time a case is opened or reopened.

(3) When CSS receives a new case with an existing order, or when a previously closed case reopens and has an existing order, CSS does not calculate a past-due support balance, or take action to enforce past-due support, until 30-calendar days from the mailing date of the notice of case letter and affidavit of payments document to the NCP. This does not preclude initiating an income assignment to collect current support.

(4) Past-due child support remains due to the CP with whom a child resided during the month the past support was due.

(5) When CSS takes action to enforce past-due support and support for a prior period for a Servicemember's child, CSS applies the provisions of the Servicemembers Civil Relief Act, codified in 50 U.S.C. §§ 3901 through 4043.

(e)Settlement of past support.

(1) Settlements of past support may include:

(A) an NCPs lump sum partial payment or a series of payments made toward the total amount of past support;

(B) an agreement for the NCP to pay a specified number of current child support payments in the future; or

(C) acceptance of in-kind goods or services in exchange for waiving a certain amount of past child support.

(2) Settlements of past support must be memorialized in a court order and the CP must sign the court order when the past support is owed to the CP.

(3) Per 43 O.S. § 112, CSS:

(A) acknowledges the rights of the CP and NCP to mutually agree to waive with approval of the court, all or a portion of the past child support due to the CP; or

(B) may negotiate the right to collect all or part of past support owed to Oklahoma.

(f)Annual notice. CSS uses the annual notice to the NCP parent, per 56 O.S. § 237A to confirm the amount of past-due support and remaining balances on previously confirmed judgments. Past-due support and remaining balances on judgments for support for a prior period may also be confirmed during other enforcement actions, per OAC 340:25-5, Part 23.

(g)Death of CP.

(1) When the CP dies, CSS issues child support payments for past due support to:

(A) the decedent's estate, when the estate's administrator notifies CSS in writing; or

(B) any state owed past due support, per OAC 340:25-5-351.

(2) Except as provided in (1) of this subsection, CSS refunds payments to the:

(A) payor, when the payor's address is known; or

(B) NCP when the payor's address is unknown, or payments are returned due to the inability to distribute.

(3) CSS does not file a forced probate court action to determine heirs and distribute past support to heirs.

(h)Jurisdiction. When an Oklahoma tribunal has personal and subject matter jurisdiction and can obtain service of process on the NCP, CSS uses the annual notice, notice of support debt, contempt, or other appropriate proceedings to determine past support and interest before requesting another state's tribunal to enforce the child support orders.

(i)Incarcerated NCP. Per 43 O.S. § 118I, beginning November 1, 2021, there is a rebuttable presumption that an NCP who is incarcerated for a period of 180-consecutive days is unable to pay child support. When a payment is made during incarceration, the presumed ability to pay child support may be rebutted for that payment period. CSS makes a final determination whether the order is abated. 2021, there is a rebuttable presumption that an NCP who is incarcerated for a period of 180-consecutive days is unable to pay child support. When a payment is made during incarceration, the presumed ability to pay child support may be rebutted for that payment period. CSS makes a final determination whether the order is abated.

Okla. Admin. Code § 340:25-5-140

Added at 9 Ok Reg 3275, eff 6-26-92 (emergency); Added at 10 Ok Reg 1813, eff 5-13-93 ; Amended at 17 Ok Reg 2426, eff 7-1-00 ; Amended at 18 Ok Reg 1226, eff 7-1-01 ; Amended at 19 Ok Reg 1746, eff 7-1-02 ; Amended at 22 Ok Reg 1221, eff 7-1-05 ; Amended at 23 Ok Reg 1842, eff 7-1-06 ; Amended at 24 Ok Reg 1301, eff 7-1-07 ; Amended at 25 Ok Reg 1307, eff 7-1-08 ; Amended at 26 Ok Reg 1245, eff 7-1-09 ; Amended at 27 Ok Reg 1201, eff 7-1-10 ; Amended at 29 Ok Reg 765, eff 7-1-12 ; Amended at 30 Ok Reg 646, eff 7-1-13

Amended by Oklahoma Register, Volume 36, Issue 24, September 3, 2019, eff. 9/16/2019

Amended by Oklahoma Register, Volume 39, Issue 06, December 1, 2021, eff. 11/1/2021

Amended by Oklahoma Register, Volume 39, Issue 24, September 1, 2022, eff. 9/15/2022

Amended by Oklahoma Register, Volume 41, Issue 23, August 15, 2024, eff. 9/16/2024