COMMENT

This section incorporates into the interstate context the local law regarding defenses an employee-obligor may raise to an income-withholding order. Generally, states have accepted the IV-D requirement that the only viable defense is a mistake of fact, 42 U.S.C. § 666(b)(4)(A). This apparently includes errors in the amount of current support owed, in the amount of accrued arrearage, or mistaken identity of the alleged obligor. Other grounds are excluded, such as inappropriate amount of support ordered, changed financial circumstances of the obligor, or lack of visitation. H.R. Rep. No. 98-527, 98th Cong., 1st Sess. 33 (1983). The latter claims must be pursued in a separate proceeding in the appropriate state, not in a UIFSA proceeding.

This procedure is based on the assumption that valid defenses to income withholding for child support are few and far between. Experience has shown that in relatively few cases does an employee-obligor have a complete defense, e.g., the child has died, another contingency ending the support has occurred, the order has been superseded, or there is a case of mistaken identity and the employee is not the obligor. An employee’s complaint that “The child support is too high” must be ignored.

As noted frequently above, instances of multiple orders have become increasingly rare over the past two decades plus. Situations do arise, however, in which an employer has received multiple withholding notices regarding the obligor-employee and the same obligee. The notices may even allege conflicting amounts due, especially for payments on arrears. Additionally, many employees claim to have only learned of default orders when the withholding notice is delivered to the employer. This claim often is based on an assertion that the order being enforced through income withholding was entered without personal jurisdiction over the obligor-employee. A variety of similar fundamental defenses may be asserted, such as mistaken identity, full payment, another order controlling, etc.

Subsection (a) provides for a simple, efficient, and cost-effective method for an employee-alleged obligor to assert a defense. For example, if the existence of a support obligation is acknowledged but the details are at issue, the obligor may register the underlying “controlling” support order with a local tribunal and seek temporary protection pending resolution of the contest. This may be accomplished pro se, employment of private counsel, or by a request for services from the child support enforcement agency of the responding state. Some states provide administrative procedures for challenging the income withholding that may provide quicker resolution of a dispute than a judicially-based registration and hearing process. In the absence of expeditious action by the employee to assert a defense and contest the direct filing of a notice for withholding, however, the employer must begin income withholding in a timely fashion.

Another issue the employee-obligor may raise is that the withholding order received by the employer is not based on the controlling child-support order issued by the tribunal with continuing, exclusive jurisdiction, see Section 207, supra. Such a claim does not constitute a defense to the obligation of child support, but does put at issue the identity of the order to which the employer must respond.

The one order system initiated by UIFSA effectively has eliminated the multiple-order system of RURESA, which primarily involved multiple orders by different courts for the same child. At present most “duplicate income withholding orders” involve one state seeking state assigned arrears and another state also seeking arrears, and possibly ongoing support as well. Clearly the employer is in no position to make a decision on how to proceed to resolve such conflicting claims. When multiple orders involve the same employee-obligor and child, or multiple children (including those with other mothers), as a practical matter resort to a responding tribunal to resolve the resulting dispute almost certainly will be necessary.