Parties are divorced in a country outside of the United States. For our purposes, let’s consider a Netherland’s Judgment for Dissolution of Marriage. Children are emancipated, and ex-wife receives maintenance (formerly known as alimony) for a period of time. Ex-wife is now our Petitioner in the U.S. in her action under the Uniform Interstate Family Support Act (750 ILCS 22/101 et seq.) She seeks to register the Netherland’s Judgment and collect maintenance from her ex-husband, an Illinois resident. Ex-wife seeks to collect maintenance through an Income Withholding for Support Order directed to the ex-husband’s employer and paid to the Illinois State Disbursement Unit. She has sent the original notice of her intended withholding to the employer. Ex-husband calls you and asks if ex-wife can do this, and if his employer can garnish his wages because of ex-wife’s filings in Illinois. The employer is ready to garnish ex-husband’s wages and you are about to begin your foray into international law and wage garnishments through the state of Illinois’s Child Support Office.
750 ILCS 22/607(a) provides in pertinent part that: A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
(5) there is a defense under the law of this State to the remedy sought.
750 ILCS 22/102 Definitions defines the word, “State”. The term, State, includes: (B) a foreign country or political subdivision that:
(i) has been declared to be a foreign reciprocating country or political subdivision under federal law;
(iii) has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this Act.
“The Netherlands and the United States have entered into an agreement for the enforcement of maintenance (support) obligations (Netherlands Treaty Series 2001, 117 and 134) concluded on 30 May 2001, entered into force on 1 May 2002: Agreement Between the Government of The United States of America and the Government of the Kingdom of The Netherlands for the Enforcement of Maintenance (Support) Obligations. This Agreement provides that it is authorized by the U.S. Congress in section 459A of the Social Security Act, Title 42, United States Code, section 659A. Article II, Scope, page 2 of the 12 page Agreement, states: This Agreement shall apply to maintenance obligations arising from a family relationship…. However a maintenance obligation towards a spouse or former spouse where there are no minor children will be enforced in the United States under this Agreement only in those states and other jurisdictions of the United States that elect to do so.” (Agreement cite information provided above.)
“International cooperation under the Agreement consists of the following: Both The Netherlands and the U.S. have appointed a central authority. For The Netherlands this is the National Bureau for the Collection of Maintenance Payments (LBIO) in Gouda, The Netherlands. In the U.S., the federal authority is the Office of Child Support Enforcement, part of the Department of Health and Human Services in Washington, D.C. The Office is linked with local central authorities in all states of the U.S. who are responsible for implementing federal legislation concerning the reciprocal enforcement of maintenance obligations between different states of the U.S.. These local authorities will also handle applications from The Netherlands that are based on the Agreement.”
“The Agreement makes a partial exception for maintenance obligations between spouses or former spouses who have no minor children, where such obligations have to be enforced in the US. Not all American states will accept applications for the enforcement of such obligations. Information as to which states are excepted can be obtained from the central authority.”
(Bilateral agreement on maintenance obligations with the United States, http://chicago.the-netherlands.org/binaries/content/assets/postenweb/v/verenigde_staten_van_amerika/the-netherlands-consulate-general-in-chicago/import/services/bilateral-agreement-on-maintenance-obligations-with-the-united-states)
‘The Code of Federal Regulations (45 CFR 301 et. seq.) sets forth federal regulations which govern the individual state IV-D child support programs. 45 CFR 301 General Definitions, et seq. sets forth federal regulations which govern the individual state IV-D support programs. In the definitions section, “Spousal support means a legally enforceable obligation assessed against an individual for the support for a spouse or former spouse who is living with the child or children for whom the individual also owes support. In the State Plan Requirements Section, the State IV-D Plan must provide for establishing paternity for children born out of wedlock, securing support for children, and “…securing support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the Title IV-D State Plan.’
In sum, the State IV-D agency may only enforce a spousal support obligation against an obligor 1) who is also legally obligated to support a child or children living with the spousal support obligee and 2) whose child support obligation is currently being enforced by the State IV-D program. (International Child Support Cases, http://www.ncsea.org/wp-content/uploads/2012/02/SPOUSAL_ONLY_LAWPOLICY.pdf). The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law Number 104-193 (PRWORA) expands the possibility for spousal support enforcement by an IV-D agency without a corresponding child support order if the enforcement request is initiated by a foreign country with which the U.S. federal government or state has a reciprocity arrangement. PRWORA amends the IV-D State plan requirement as follows:
(b) STATE PLAN REQUIREMENT- Section 454 (42 U.S.C. 654)…is amended….(3) by adding after paragraph (31) the following new paragraph:
….“(B) provide, at State option, notwithstanding paragraph (4) or any
other provision of this part, for services under the plan for enforcement of
a spousal support order not described in paragraph (4)(B) entered by such a country (or subdivision); ….” (emphasis added)
Whether a State IV-D agency exercises its option to respond to an international spousal support only enforcement request is governed by State law and agency policy. The IV-D agency must use state laws regarding the intrastate and interstate establishment of support obligations. (45 CFR 302.31) Id. at International Spousal Support Cases cited supra.
45 CFR 302.31(2): (2) In the case of any individual with respect to whom an assignment as defined in § 301.1 of this chapter is effective, to secure support for a child or children from any person who is legally liable for such support, using State laws regarding intrastate and interstate establishment and enforcement of support obligations. Effective October 1, 1985, this includes securing support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the title IV-D State plan.
42 CFR 459a: (cited in Netherlands-U.S. Agreement, p. 1)
Sec. 459.[42 U.S.C. 659] (a) Consent to Support Enforcement.—Notwithstanding any other provision of law (including section 207 of this Act and section 5301 of title 38, United States Code[199]), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 466 and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.
Will Illinois accept this application for the enforcement of spousal-maintenance-only obligation? No. The Netherlands/U.S. Agreement specifically states that the U.S. office for enforcement is that of the Office of Child Support Enforcement (OCSE). The OCSE has clearly stated that it will not enforce spousal support-only obligations of another State if there is no child support collection involved. OCSE document from OCSE’s website, which provides a list of countries which the U.S. has declared to be foreign reciprocating countries for child support purposes. Netherlands is listed as a country, for the purposes of child support collection.
(www.acf.hhs.gov/programs/css/resource/foreign-reciprocating-countries).
According to the U.S. Department of Health and Human Services (https://extranet.acf.hhs.gov/irg/welcome.html), regarding Illinois, The Netherlands is a reciprocating country only on child support not on spousal support. Illinois does not exercise its option to enforce spousal-only orders for foreign reciprocating countries.
750 ILCS 22/607(b) states in pertinent part that: If a party presents evidence establishing a full or partial defense under subsection (a), a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders.
Time to stop that garnishment procedure from moving forward.
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