§ 513 — Judgment; order of support; other terms
This text of Delaware § 513 (Judgment; order of support; other terms) is published on Counsel Stack Legal Research, covering Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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(a) Where the duty of support has been determined to exist, the court may:
(1) Order the defendant to pay a certain sum periodically into the Division of Child Support Services or directly to a resident parent, dependent, dependent’s legal guardian, caretaker relative having custody of or responsibility for the child, custodian or trustee, conservator representing the custodial parent and child directly with a legal and fiduciary duty, or alternate caretaker designated in a record by the custodial parent for a dependent’s support for so long as the obligation of support shall exist;
(2) Order the defendant to pay a specific total amount into the Division of Child Support Services or directly to a resident parent, dependent, dependent’s legal guardian, caretaker relative having custody of or responsibility for the child, custodian or trustee, conservator representing the custodial parent and child directly with a legal and fiduciary duty, or alternate caretaker designated in a record by the custodial parent in a lump sum or in such stated periodic amounts as the court deems proper;
(3) Order the defendant to pay directly to the obligee the cost of prenatal and postnatal medical, hospital, and other lying-in expenses incident to the birth of a child;
(4) Order the defendant to elect health insurance coverage for a child available through the defendant’s employment, otherwise available at reasonable cost as defined in § 401(b)(11) of this title or to pay directly the cost of health insurance coverage for a child; provided, however, that any new or modified order entered in any case brought under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.) shall require either or both parents to provide health insurance coverage for the child or children who are the subjects of the child support; and provided, further, that in any case brought under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.) in which a parent is ordered to provide health care coverage for a child through an employment-related group health plan, the Division of Child Support Services shall issue the National Medical Support Notice required by Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.) and federal regulations promulgated pursuant thereto, and the Division shall promptly notify the employer when there is no longer a current order for medical support in effect for which the Division is responsible:
a. In any case in which a parent is required by court or administrative order to provide health insurance coverage for a child and the parent is eligible for family health coverage through an employer doing business in this State, such employer shall:
1. Permit such parent to enroll under such family coverage any such child who is otherwise eligible for such coverage (without regard to any enrollment season restrictions).
2. If such a parent is enrolled but fails to make application to obtain coverage of such child, enroll such child under such family coverage upon application by the child’s other parent, the Division of Child Support Services or Division of Social Services. The court or administrative order providing for enrollment of the child shall constitute the application for enrollment.
3. Not disenroll (or eliminate coverage of) any such child unless the employer is provided satisfactory written evidence that:
A. Such court or administrative order is no longer in effect; or
B. The child is or will be enrolled in comparable health coverage which will take effect not later than the effective date of such disenrollment; or
C. The employer has eliminated family health coverage for all of its employees.
4. Where an obligor has been ordered to provide health insurance coverage for a child in a case enforced pursuant to Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), receipt by an employer or successive employer of a National Medical Support Notice or other notice from the court or the Division of Child Support Services of an order of a court or administrative agency requiring the obligor to provide health insurance coverage shall operate to enroll the child in the obligor’s health insurance plan without regard to any enrollment season restrictions. The obligor may contest the notice by filing a petition in opposition thereto in the Family Court not later than 10 days after issuance of the notice. The petition in opposition may be based only on mistake of fact. Filing of a petition in opposition shall not relieve the employer of any duties under the notice, order or National Medical Support Notice until such time as the employer receives notice that the contest has been resolved. The Court or the Division of Child Support Services shall send a copy of the notice to the obligor at the same time it sends notice to the employer.
b. An order for health insurance coverage shall operate as an assignment of all benefit rights to the obligee or to the child’s health services provider, and in any claim against the coverage provider or insurer, the obligee or the obligee’s assignee shall be subrogated to the rights of the obligor. Notwithstanding the provisions of this paragraph (a)(4)b. regarding assignment of benefits, this paragraph (a)(4)b. shall not require a health service contractor or a health maintenance organization to deviate from their contractual provisions and restrictions regarding reimbursement for covered services. If the coverage is terminated, the employer shall mail a notice of termination to the Division of Child Support Services, or the obligee at the obligee’s last known address, within 30 days of the termination date.
c. If an obligor fails to pay the required portion of any deductible under the health insurance coverage or fails to pay the required portion of medical expenses incurred in excess of the coverage provided under the plan, the obligee or the Division of Child Support Services in cases brought under Part D of Title IV of the federal Social Security Act (42 U.S.C. § 651 et seq.) may enforce collection of the obligor’s portion of the deductible or the additional medical expenses through an appropriate order under this section, including attachment of the obligor’s income. The amount of the deductible or additional medical expenses shall be added to the obligor’s child support obligation and be collectible as provided by law if the obligor’s share of the amount of the deductible or additional expenses is reduced to a sum certain in a court order.
d. Receipt of a National Medical Support Notice or an order for the enforcement of a medical support obligation shall require an obligor’s employer to:
1. Answer the Division of Child Support Services or the obligee, as directed, within 20 days and confirm that the child:
A. Has been enrolled in a health care plan, or that the employer has transferred a National Medical Support Notice to the appropriate group health plan providing any such coverage for which the child or children are eligible; or
B. Cannot be covered, stating the reasons why such coverage cannot be provided.
2. Transfer a National Medical Support Notice to the appropriate group health plan providing any such health care coverage for which the child or children are eligible within 20 business days of the date of the National Medical Support Notice.
3. Withhold any required premium from the obligor’s income or wages, as provided in paragraph (b)(8) of this section.
4. If more than 1 plan is offered by the employer or health insurer, and each plan may be extended to cover the child, enroll the child in the obligor’s plan. If the obligor’s plan does not provide coverage which is accessible to the child, the child shall be enrolled in the least expensive plan otherwise available to the obligor. When the plan administrator reports that there is more than 1 option available under the plan, the Division of Child Support Services, in consultation with the obligee, must promptly select from available plan options.
5. Provide information to the Division of Child Support Services or the obligee, as directed, about the name of the health care provider or the insurer and the extent of the coverage available and make available to such party any necessary claim forms or enrollment membership cards.
e. Orders entered under this subsection may be enforced as provided in paragraphs (b)(9) and (10) of this section.
(5) Order 1 party to pay all or part of the cost to the other party of maintaining or defending any proceeding under this chapter and for attorneys’ fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after the entry of judgment, after considering the legal and factual basis for the action, the results obtained, the financial resources of both parties, and such other factors as the court deems just and equitable. The court may order that the amount be paid directly to the attorney, who may enforce the order in such attorney’s own name;
(6) Enforce its order by attachment of the defendant or by sequestration of property;
(7) Enter such other orders as the Court of Chancery heretofore possessed the power to enter, and as the interests of the parties may require, including but not limited to orders of custody and visitation;
(8) Order the defendant to move from the family home, even though titled in defendant’s name alone or jointly with someone else, and not to live there for a reasonable period of time so that such defendant’s spouse and/or child or children of the marriage might live there and enjoy the family home as an element of support;
(9) Enjoin the defendant from molesting or disturbing the peace of such defendant’s spouse and/or child or children of the marriage for whom defendant is obliged to provide support;
(10) Restrain defendant from transferring, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring such defendant to notify any person to whom such defendant has an obligation of support, or such person’s guardian, custodian or trustee, of any proposed extraordinary expenditure and to account to the court for all extraordinary expenditures made after the order is issued;
(11) Order the defendant to permit such defendant’s spouse and/or child or children of the marriage to have the use of designated personal property and/or fixtures, even though titled in defendant’s name alone or jointly with someone else, upon such terms and conditions as the court may impose, as an element of support;
(12) When a defendant fails to notify the court within 5 working days after a change of residential address hold the defendant in contempt of court and attach such defendant’s wages;
(13) Order either party to designate a minor child or children covered under a support order as a beneficiary on any of the parties’ existing life insurance policies for the duration of the support order. The designation may be exclusive or nonexclusive, as determined by the court. The court, in its discretion, may further order the obligor or obligee, whichever is applicable, to designate a trustee, if not the obligor or obligee, for the child or children until such child has reached the age of majority.
(b) (1) Where a duty to support or to provide medical support has been determined to exist and a new or modified support order is established, and regardless of whether support or medical support payments are in arrears, the court shall attach the obligor’s income, if any, as of the effective date of the order, for payment of support or premiums for health insurance coverage except that such income shall not be subject to such withholding under this paragraph (b)(1) in any case where:
a. One of the parties demonstrates, and the court (or administrative process) finds that there is good cause not to require immediate income withholding. Any finding that there is good cause not to require immediate income withholding must be based on at least:
1. A written determination that, and explanation by the court or administrative authority of why, implementing immediate income withholding would not be in the best interests of the child; and
2. Proof of timely payment of previously ordered support in cases involving modification of support orders; or
b. A written agreement is reached between both parties which provides for an alternative arrangement. As used herein, “written agreement” means a written alternative arrangement signed by both parents, or by the obligor and a representative of the Division of Child Support Services in cases brought under Part D of Title IV of the federal Social Security Act (42 U.S.C. § 651 et seq.) in which there is an assignment of support rights to the State, and reviewed and entered in the record by the court or administrative authority.
c. [Repealed.]
(2) a. Where no withholding order is in effect for orders of support or medical support entered under this chapter, Chapter 6 of this title, or where the order is one of unallocated alimony and child support under Chapter 15 of this title including orders issued prior to March 5, 1986, or where the ordered payment on arrears is less than 20 percent of current support, the obligor’s income shall be attached automatically upon the filing of a written notice sent by the obligee or the Division of Child Support Services of a default in payment for 1 calendar month, or earlier at the request of the obligor.
b. If the existing support order does not include payment on arrears or if the ordered payment on arrears is less than 20 percent of current support, then the income attachment shall be issued in the amount of current support plus an amount payable toward arrears of up to 20 percent of the current support order or $20 per month, whichever is greater. If the existing medical support order does not include an attachment for payment of health insurance coverage, payment for the obligor’s share (if any) for premiums of health insurance coverage shall be added to the attachment. The remedy specified for recovery of arrearages shall be in addition to and not in substitution for remedies available elsewhere in this title.
(3) Where an order for attachment is to be issued under this subsection or Chapter 4 of this title, the obligor shall be notified upon the commencement of the withholding that the withholding has commenced and of the procedures to follow if the obligor desires to contest such withholding on the grounds that the withholding or the amount withheld is improper due to a mistake of fact. The notice shall include the information provided to the obligor’s employer pursuant to federal law. The obligor shall have 10 days from the date of notification to file an affidavit in opposition to the attachment based only upon an assertion of a mistake of fact concerning the identity of the parties, the delinquency of payment, or the jurisdiction of the court. Any other defenses to the amount of the obligation may be raised only in accordance with other provisions of this title. Full payment upon receipt of the notification shall not constitute grounds for contesting withholding. The court shall, upon consideration of the affidavit or affidavits, determine whether an issue of material fact or defense permissible under this section exists and shall, in accordance with that determination, schedule a hearing, order the termination of the attachment, or permit the attachment to continue. In either event, a final determination shall be made and both parties notified within 45 days of the notification.
(4) In all cases brought under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), a copy of the Court’s income withholding order shall be issued to the Division of Child Support Services and shall be served by the Division by first class mail upon the obligor’s employer, and any successive employer, and such service shall be as effectual for all purposes as if served by the court.
(5) For purposes of Chapters 4, 5 and 6 of this title, “income” is defined as:
a. Any periodic form of payment due to an individual, regardless of source, including, but not limited to, wages, salary, commission, vacation pay, severance pay, bonuses, compensation as an independent contractor, workers’ compensation, disability, sick pay, SUB benefits, medical benefits, unemployment compensation, railroad retirement, pensions, annuity and retirement benefits; or
b. Any lump sum payment due to an individual from an employer;
c. Provided, however, that income excludes:
1. Any amounts required by law to be withheld, other than creditor claims, including, but not limited to, federal, state and local taxes, Social Security and other mandatory retirement and disability contributions;
2 Union dues;
3 Any amounts exempted by federal law;
4. Public assistance payments; and
5. Tax refunds, which shall be governed by §§ 1205-1209 [repealed] of Title 30 and § 454 of the Social Security Act (42 U.S.C. § 654).
(6) “Employer” has the meaning given such term in § 4301(d) of the Internal Revenue Code of 1986 [repealed], and includes any governmental entity and any labor organization, as defined in § 2(5) of the National Labor Relations Act [29 U.S.C. § 152(5)], and includes an individual, partnership, association, corporation, trust, federal agency, state agency or political subdivision paying or obligated to pay income.
(7) Any attachment or execution to enforce an order for child support, medical support, or unallocated alimony and child support entered under this title shall not be subject to the exemptions or limitations set forth in § 3502 or § 4913 of Title 10 or § 5503 of Title 29. Said attachment for support shall also have priority over any other attachment, except an attachment for federal tax liens, regardless of whether such other attachment was perfected prior to the support attachment. The support and medical support attachment shall be subject to the limitations set forth in § 303(b) of the Consumer Credit Protection Act (15 U.S.C. § 1673(b)); provided, however, that an attachment of unemployment compensation shall not exceed 50 percent of the weekly payment thereof.
(8) a. Upon receipt of a certified copy of income withholding from the court or copy from the Division of Child Support Services, the employer shall deduct the specified sum, which may include a fee, established by the State, to be paid to the employer, unless waived by the employer, from the income due the obligor-employee and shall, at or before the time the obligor-employee is paid, send payments to the Division of Child Support Services or the obligee, as directed, and pay the health insurance premium amount deducted directly to the health insurer, and shall continue to do so for so long as the obligor remains in the employer’s employ or until the court orders otherwise; provided, however, that when an employer receives an income withholding order issued by another state, the employer shall apply the law of the state of the obligor’s principal place of employment in determining the factors enumerated in § 411(d) of this title. The withholding shall be effective with regard to any payment by the employer to the obligor after a reasonable time to give effect to the withholding, but in no event shall such withholding be delayed more than 7 days after the first pay-day following receipt of the wage attachment. In every case, the remittance shall be payable as directed and the remittance shall specify the obligor-employee’s name and Social Security number. In the event the employer is withholding from more than 1 employee, and the payee is the Division of Child Support Services, payment for the total amount may be remitted by a single payment. Upon the termination of the obligor’s employment, the employer shall notify the court, or the Division of Child Support Services if the order of income withholding or National Medical Support Notice was served by the Division, of said termination and shall provide the court, or the Division if the order of income withholding or National Medical Support Notice was served by the Division, with the obligor-employee’s last known address, along with the name and address of the obligor’s future employer, if known. If the obligor contests such withholding, the employer must initiate withholding until such time as the employer receives notice that the contest is resolved.
b. 1. An employer with 50 or more employees directed to send payments to the Division of Child Support Services must remit payment required under this section by electronic funds transfer and electronic data interchange at or before the time the obligor-employee is paid.
2. An employer with fewer than 50 employees may remit a payment required under this section by electronic funds transfer and electronic data interchange. A payment remitted by the employer electronically must be made at or before the time the obligor-employee is paid.
(9) Upon receipt of the certified copy of the order of income withholding from the court or from the Division of Child Support Services by certified mail, the employer becomes primarily liable for the payment of the obligations for support and medical support set forth in such order, as well as such criminal and civil sanctions as the court may impose in the event that the employer fails to comply with the terms of such income attachment and is found to be in contempt by the court.
(10) Any employer who fails to comply with the terms of this section or who dismisses, terminates or causes the termination of an obligor’s employment as a result of an attachment under this section shall be fined for the first offense not more than $1,000 or imprisoned not more than 90 days, or both, and for each subsequent offense shall be fined not more than $5,000 or imprisoned not more than 1 year, or both. Any employer who refuses to hire an obligor as a result of an attachment under this section shall be liable for a civil penalty of not more than $200 for the 1st offense and each subsequent offense. If the employer is a corporation, criminal liability shall be established pursuant to §§ 281-284 of Title 11.
(11) Withholding of income for support or medical support under this section shall remain in effect as long as the order for support or medical support upon which it is based, or any modification thereof.
(12) The Division of Child Support Services is designated as the state income withholding agency. The Division shall distribute all amounts received promptly in accordance with § 457 of the Social Security Act (42 U.S.C. § 657) and shall allocate amounts received when there is more than 1 obligee in accordance with rules promulgated by the federal Department of Health and Human Services.
a. In any case enforced under Title IV, Part D, of the Social Security Act (42 U.S.C. § 651 et seq.), and notwithstanding the provisions of the Administrative Procedures Act, Chapter 101 of Title 29, the Division is hereby authorized:
1. To order income withholding in accordance with this chapter, without the necessity of obtaining an order from any other judicial or administrative tribunal, and shall recognize and enforce the authority of state IV-D agencies of other states to do the same.
2. To execute an income withholding order without advance notice to the obligor, including issuing the withholding order through electronic means.
b. In cases in which support is subject to an assignment pursuant to Part A of Title XIX of the Social Security Act [42 U.S.C. § 1396 et seq.] or to a requirement to pay through the state disbursement unit, upon providing notice to the obligor and obligee, the Division may direct the obligor or other payor to change the payee to the appropriate governmental entity.
(13) Any attachment or execution to enforce an order entered under this chapter or an order for alimony, division of property or other financial relief under Chapter 6, 7, 13 or 15 of this title shall not be subject to the exemptions or limitations set forth in § 3502 or § 4913 of Title 10.
(14) An employer who complies with an income withholding notice or National Medical Support Notice that is regular on its face shall not be subject to civil liability to any individual or agency for conduct in compliance with the notice.
(c) (1) Following the entry of any order of support or medical support under this chapter, the parties must notify each other in writing of every change in circumstances which might materially affect the existing support or medical support order; and, in addition, each party shall exchange completed financial report forms every 12 months to determine how the needs of those receiving support are being met with the support paid, and whether any modification should be made to the existing support order based upon the factors set forth in § 514 of this title.
(2) Where an order for child support, including orders issued prior to March 31, 1987, has been entered under this chapter, Chapter 6 or Chapter 15 of this title, the right of each and every child support installment or payment becomes absolute and vested upon coming due with the full force, effect and attributes of a judgment of the Family Court of the State.
(3) Remedies available under this subsection are cumulative with any and all other remedies available to enforce a child support obligation.
(4) After receipt by the Division of Child Support Services of a copy of an order of child support as set forth in paragraph (c)(1) of this section made payable through the Division, the Division shall promptly record all payments received and apply said payments to installment or payment amounts due and owing by the obligor in accordance with regulations promulgated by the federal Department of Health and Human Services. The Division may establish administrative procedures to make technical corrections in the Division’s accounting records. With regard to any order of child support made payable through the Division, the Division’s records shall be presumptive of the payment or nonpayment of each installment payment.
(d) (1) The Court shall have continuing jurisdiction to modify prospectively an order of child support entered by the Court including orders issued prior to March 31, 1987, so long as the obligated party has a duty of support under this chapter, Chapter 6 or Chapter 15 of this title and at least 1 of the parties or the child whose support is at issue resides in the State or as provided in § 6-205(a)(2) of this title.
(2) An order of child support entered by this Court or a court of competent jurisdiction in this or any other state, including orders entered prior to March 31, 1987, shall not be retroactively modified except with respect to any period during which there is pending petition for prospective modification but only from the date that notice of such petition has been given to the respondent directly or through the respondent’s agent, including the Division of Child Support Services in cases administered under Title IV-D of the Social Security Act [42 U.S.C. § 651 et seq.]. In addition to any other manner or type, “notice” for the purposes of this paragraph (d)(2) shall include but not be limited to regular mail to the most recent address provided to the Court by the respondent or otherwise confirmed by a superior form of service in this or any other action. Said notice shall be effective on the date of delivery, first attempted delivery, or 3 days after posting (if by regular mail), whichever first occurs.
(3) Whenever the Court considers a petition to modify child support, the Court shall also consider whether medical support should be ordered or modified, as provided in this chapter. When the Court considers a petition to establish or modify medical support, such petition shall also put the order for child support at issue, and the Court will determine whether the child support amount should be modified in accordance with the guidelines.
(e) The Court shall have continuing jurisdiction to enforce an order of child support entered by the Court, including orders issued prior to March 31, 1987, so long as the obligated parent has a duty to support the child or children under this chapter, Chapter 6 or Chapter 15 of this title or there are arrearages or past due amounts due and owing on such an order. Nothing in this subsection shall be construed as limiting the Court’s authority under Chapter 4 of this title.
(f) Each party to a support order shall report any change in each such party’s current residential address, driver’s license number, telephone number, employer, employer’s address and employer’s telephone number to the Family Court, and to the Division of Child Support Services in any case enforced by the Division pursuant to Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), within 5 days of when the change occurs. Notice for purposes of enforcing or modifying a child support order shall mean:
(1) Mailed notice to the last known residential address provided to the Family Court by the party; or
(2) Upon a showing of diligent efforts to locate a party, mailed notice to the last known employment address provided to the Family Court by the party; provided, however, that where the respondent is a IV-D client as defined by regulation of the Secretary of the Department of Health and Social Services, the Division of Child Support Services shall be the appropriate agent for the receipt of any such notice.
(g) Upon receipt of a written request, or a request by other electronic means where available, from the Director of the Division of Child Support Services in any case enforced by the Division pursuant to Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), any employer, as that term is defined in paragraph (b)(6) of this section, and any labor organization, as that term is defined in § 710 of Title 19, shall cooperate with and provide relevant employment and income information in the possession of such employer or labor organization to the Director or the Director’s designee for the purpose of establishing, modifying or enforcing a child support order. Relevant employment and income information includes: Whether a named person has or has not been employed by an employer or whether a named person has or has not been employed to the knowledge of the labor organization; the full name of the employee or member; the employee’s or member’s last known address; the employee’s or member’s date of birth; the employee’s or member’s Social Security number; all income, as that term is defined in paragraph (b)(5) of this section, paid to the employee or member in the prior and current calendar year and the employee’s or member’s current rate of pay; and whether dependent health insurance coverage is available to the employee or member through employment or membership in the labor organization, together with information about the name of the health care insurer and the extent of the coverage available.
(1) An employer or labor organization shall be immune from any liability for providing information pursuant to this subsection.
(2) Any employer or labor organization which fails or refuses to provide the information described in this subsection within 30 days after receipt of a request from the Director of the Division of Child Support Services or as otherwise provided in such request shall be punished by a fine of not less than $100 nor more than $500. For a second or subsequent offense, such employer or labor organization shall be fined not less than $500 nor more than $1,000. A fine under this section may not be suspended. If the employer or labor organization is a corporation, criminal liability shall be established pursuant to §§ 281-284 of Title 11.
(h) In every child support action filed under this chapter or under Chapter 4, 6, or 8 of this title, the Family Court shall collect and maintain a record of the name, residential address, Social Security number, date of birth, driver’s license number, telephone number, employer, employer address and employer telephone number of each party. Unless good cause is shown, the Family Court may limit access to this information.
(i) Notwithstanding any other law, rule or regulation to the contrary, a child support payment shall not be subject to attachment, garnishment or execution.
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