§ 6 — Arrearages; collection procedures

Massachusetts § 6

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title XVII: PUBLIC WELFARE
• Ch. 119A: CHILD SUPPORT ENFORCEMENT

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Section 6. (a) The IV–D agency, in accordance with Title IV, Part D of the Social Security Act, is hereby authorized to institute collection procedures for all arrearages which have accrued against child support payments owed pursuant to a court judgment or support order, or an order from a IV–D agency of competent jurisdiction. These collection procedures shall include, but not be limited to, notification of employers that an order to withhold income is in effect and not suspended; notification of obligors; demand letters; use of state and federal tax refund intercept programs; use of federal administrative offset pursuant to the Debt Collection Improvement Act of 1996 31 USC 3716; use of federal program for denial, revocation, or limitation of passports; notification to consumer credit reporting agencies pursuant to section 52A of chapter 93; initiation of contempt proceedings; use of lien, levy and seizure as provided in subsection (b); use of the services of any person providing collection services to the commissioner of revenue; seeking capias in appropriate situations; seeking a warrant pursuant to section 34A of chapter 215 in appropriate situations; attachment of or lien against property, trustee process in accordance with chapter two hundred and forty-six; civil actions to reach and apply; petition to the probate and family court for distribution of trust income in accordance with chapter 203; and any other civil remedy available for the enforcement of judgments or for the enforcement of support or custody orders entered under chapter two hundred and eight, two hundred and nine, or, two hundred and nine C or received, entered or registered pursuant to chapter two hundred and nine D or required by Title IV, Part D of the Social Security Act. The IV–D agency is further authorized, in cases where there is a support arrearage, to secure assets to satisfy the arrearage by intercepting or seizing periodic or lump-sum payments from any state or local agency or authority, including unemployment compensation, workers' compensation and other benefits not otherwise exempt, judgments, settlements, and lotteries; attaching and seizing assets of the obligor held in financial institutions; attaching any public and private pension or retirement funds as provided by this chapter and by chapter 32; and imposing liens in accordance with this section and, in appropriate cases, forcing sale of any real or personal property and distribution of proceeds. Such procedures shall be subject to due process as provided in this chapter, including an opportunity for administrative and judicial review as provided in section 17. The IV–D agency may provide by regulation for the assessment of interest and penalties.(b)(1) A child support obligation which is unpaid in whole or in part shall, as of the date on which it was due, be a lien in favor of the obligee in an amount sufficient to satisfy unpaid child support, whether the amount due is a fixed sum or is accruing periodically. An amount of restitution established by a court or an administrative agency of competent jurisdiction shall be due and payable as of the date such amount is established. Such lien shall incorporate any unpaid child support which may accrue in the future and shall not terminate except as provided in subparagraph (5). Upon recordation or registration in accordance with subparagraph (3), such lien shall encumber all tangible and intangible property, whether real or personal, and any interest in property, whether legal or equitable, belonging to the obligor. An interest in property acquired by the obligor after the child support lien arises shall be subject to such lien, subject to the limitations provided in subparagraphs (3) and (5).(2) When the IV–D agency determines that child support is unpaid, it shall send written notice to the obligor by first class mail, if his address is known to the IV–D agency no less frequently than once a year. The notice shall specify the amount unpaid as of the date of the notice or other date certain and the right of the obligor to request an administrative review by filing a written request with the IV–D agency within thirty days of the date of the notice. If the obligor files a timely written request for an administrative review under section 17, including sufficient documentation, the IV–D agency shall conduct the review within 30 days of said request and shall not initiate further administrative enforcement action hereunder until the review is completed. If the obligor has failed to keep the IV–D agency informed of his address as required by section 4 and the agency cannot otherwise determine the current address of the obligor from other information available to the agency, the agency may proceed under the provisions of subparagraph (4).(3) The IV–D agency shall file notice of a lien with respect to real property in the registry of deeds or registry district for any county or registry district in the commonwealth where the obligor owns property, or in any other registry of deeds or registry district in the county where the obligor resides and may file such notice in any other registry of deeds or registry district in the commonwealth. The social security number of the obligor shall be noted on the notice of the lien. The filing shall operate to perfect a lien when duly recorded and indexed in the grantor index or when registered, as the case may be, as to any interest in real property owned by the obligor that is located in the county or registry district where the lien is recorded or registered. A special index for liens created under this chapter shall be maintained in each registry of deeds or registry district. If the obligor subsequently acquires an interest in real property, the lien shall be perfected upon the recording or registering of the instrument by which such interest is obtained in the registry of deeds or registry district in the county or registry district where the notice of the lien was filed within 10 years prior thereto. A child support lien shall be perfected as to real property when both the notice thereof and a deed or other instrument in the name of the obligor are on file in the registry of deeds or registry district for the county or registry district where the obligor owns property without respect to whether the lien or the deed or other instrument was recorded or registered first. The IV–D agency shall also file notice of a child support lien, with the social security number of the obligor noted thereon, with respect to personal property with the state secretary, the registrar of motor vehicles, a municipality, or other office or agency responsible for the filing or recording of liens. The filing of a notice of a lien or of a waiver or release of a lien shall be received and registered or recorded without payment of a fee. The IV–D agency may file notice of a lien or waiver or release of a lien or may transmit information to or receive information from any registry of deeds or other office or agency responsible for the filing or recording of liens by any means, including electronic means. The perfected lien shall not be subordinate to any recorded lien except a lien that has been perfected before the date on which the child support lien was perfected; provided, however, that the IV–D agency may, upon request of the obligor, subordinate the child support lien to a subsequently perfected mortgage. To assist in the collection of a debt by the IV–D agency, the IV–D agency may disclose the name of an obligor against whom a lien has arisen and other identifying information including the existence of the lien and the amount of the outstanding obligation.(4) If the collection of an unpaid child support will be jeopardized by delay as determined by the commissioner, the IV–D agency shall proceed forthwith to collect such unpaid child support by perfecting a lien under subparagraph (3) or by executing a levy or seizure of property under subparagraph (6) or by any other available remedy without respect to the thirty-day notice period provided in subparagraph (2).(5) The lien shall expire upon either termination of a current child support obligation and payment in full of unpaid child support, or upon release of the lien by the IV–D agency. In any event, a lien under this chapter shall expire 10 years from the date on which such lien was first perfected; provided, however, that such lien may be extended for additional periods of 10 years each by recording or registering, within the one year next before the expiration of the unexpired lien, a further notice of the lien, as provided in subparagraph (3), without affecting the priority of such lien. Expiration of the lien shall not terminate the underlying order or judgment of child support. The IV–D agency may issue a full or partial waiver of any lien imposed under this section. Such waiver or release shall be conclusive evidence that the lien upon the property covered by the waiver or release is extinguished.(6) If any obligor against whom a lien has arisen and has been perfected under subparagraph (3) neglects or refuses to pay the sum due after the expiration of the thirty-day notice period specified in subparagraph (2), the IV–D agency may collect such unpaid child support and levy upon all property, including property located outside the commonwealth and accounts as defined in section 4 of chapter 62E, as provided herein. For the purposes of this section, the word ''levy'' shall include the power of distraint and seizure by any means. A person in possession of property upon which a lien having priority under subparagraph (3) has been perfected shall, upon demand, surrender the property to the IV–D agency as provided herein. A levy on property held by an organization with respect to a life insurance or endowment contract shall, without necessity for the surrender of the contract document, constitute a demand by the IV–D agency for payment of the amount of the lien and the exercise of the right of the obligor to the advance of such amount. Such organization shall pay the amount ninety days after service of notice of levy. The levy shall be deemed to be satisfied if the organization pays over to the IV–D agency the full amount which the obligor could have had advanced to him, provided that the amount does not exceed the amount of the lien. Whenever any property upon which levy has been made is not sufficient to satisfy the claim of the commonwealth for which levy is made, the IV–D agency may thereafter, as often as may be necessary, proceed to levy, without further notice, upon any other property of the obligor liable to levy upon first perfecting its lien as provided in subparagraph (3), until the amount due from him, together with expenses, is fully paid. With respect to a seizure or levy of real property or tangible personal property, the IV–D agency shall proceed in the manner prescribed by sections fifty-six, fifty-eight, fifty-nine and sixty of chapter sixty-two C, insofar as said sections are not inconsistent with the provisions of this section. With respect to a levy on securities, or a levy on shares of a mutual fund other than a money market mutual fund, the obligor may sell or repurchase such securities or shares in the ordinary and usual course of investing, but may not receive funds resulting from such sale, for a time period of up to 45 days. If during such time period the IV–D agency has not rescinded the levy, extended the time period, or notified the person or entity in possession of such securities or shares to remit funds, at the end of such time period such person shall forthwith liquidate sufficient securities or shares to satisfy the full amount of the lien and remit the liquidated funds to the IV–D agency; provided, however, that if during such time period, the obligor files a timely request for administrative review pursuant to this chapter which is not resolved prior to the end of such time period, the time period shall be extended until the final resolution of the request for administrative review; and provided further, that if a request for administrative review is resolved prior to the end of such time period, the IV–D agency may notify the person or entity in possession of such securities or shares to remit funds forthwith or that the levy is released. For the purposes of this section, the term ''money market mutual fund'' shall mean every regulated investment company within the meaning of section 851(a) of the Internal Revenue Code which seeks to maintain a constant net asset value of $1 per share in accordance with section 270.2a–7 of title 17 of the Code of Federal Regulations. The IV–D agency shall have any rights to property remaining after satisfying superior perfected liens, as provided in subparagraph (3) of this section.(7) Upon demand by the IV–D agency, a person who fails or refuses to surrender property subject to levy pursuant to this section shall be liable in his own person and estate to the commonwealth in a sum equal to the value of the property not so surrendered but not exceeding the amount of the lien, together with costs and interest at the rate established by section thirty-two of chapter sixty-two C from the date of the levy. In addition, any person required to surrender property who fails or refuses to surrender such property without reasonable cause shall be liable for a penalty equal to twenty-five percent of the amount recoverable. The interest or penalty incurred under this subparagraph shall be paid to the commonwealth and shall not be credited against the child support liability.(8) Any person in possession of, or obligated with respect to, property who, upon demand by the IV–D agency, surrenders the property or discharges the obligation to the IV–D agency, or who pays a liability under this section, shall be discharged from any obligation or liability to the obligor arising from the surrender or payment. In the case of a levy on an organization with respect to a life insurance or endowment contract which is satisfied pursuant to this section, the organization shall be discharged from any obligation or liability to any beneficiary arising from the surrender or payment.(9) In any case where there has been a refusal or neglect to pay child support or to discharge any liability in respect thereto, whether or not a levy has been made, the IV–D agency, in addition to other forms of relief, may file a civil action in the department of the trial court which originally entered the order for child support to enforce the lien under this section. The filing of a civil action shall not preclude the IV–D agency from enforcing the child support order through the use of any administrative means permitted by federal or state law.(10) The IV–D agency shall send timely written notice to the obligor by first-class mail of any action taken to perfect a lien, execute a levy or seize any property. The notice shall specify the amount due, the steps to be followed to release the property so placed under lien, levied or seized and the time period within which to respond to such notice and shall include the name of the court or administrative agency of competent jurisdiction which entered the child support order.(c) Any person aggrieved by a determination of the IV–D agency pursuant to this section may, upon exhaustion of the procedures for administrative review provided in section 17, seek judicial review within 45 days in the court where the order or judgment was issued or registered. Commencement of the review shall not stay enforcement of child support hereunder. The court may review the proceedings taken by the agency under the provisions of this section and may correct any mistakes of fact but, in accordance with section thirteen of this chapter, the court shall not reduce or retroactively modify child support arrears.