| Date: | 12/19/2003 |
|---|---|
| Organization: | Massachusetts Department of Revenue |
| Regulatory Authority: | Massachusetts General Laws |
| Official Version: | Published by the Massachusetts Register |
830 CMR: DEPARTMENT OF REVENUE
830 CMR 119A: CHILD SUPPORT ENFORCEMENT
830 CMR 119A.6.2: Settlement or Equitable Adjustment of Child Support Arrearages Owed to the Commonwealth
(a) Statement of Purpose. To maximize collection of child support arrearages owed to the Commonwealth, the Commissioner may accept an offer in settlement that is less than the full amount of such arrearages owed by an obligor as settlement of all or a portion of such arrearages, where there is serious doubt as to liability or collectibility of such arrearages. The Commissioner may also equitably adjust the amount of child support arrearages owed to the Commonwealth when the obligor has no present or future ability to pay the full arrearages. Any settlement or equitable adjustment shall be based upon a determination by the Commissioner that such settlement or adjustment of the assigned arrearages is in the best interests of the Commonwealth and in furtherance of the public policy of the Commonwealth that dependent children be maintained, as completely as possible, from the resources of their parents, thereby relieving or avoiding, at least in part, the burden borne by the citizens of the Commonwealth. The Commissioner's authority is wholly discretionary; no obligor has a right to a settlement or equitable adjustment under these provisions.
(b) Outline. 830 CMR 119A.6.2 is organized as follows:
(1) Statement of Purpose; Outline
(2) Definitions
(3) Settlement and Equitable Adjustment of Arrearages Owed to the Commonwealth
(4) Factors Affecting Agreement to Settle or Equitably Adjust Arrearages Owed to the Commonwealth
(5) Procedure
(6) Effect of Settlement Agreement
For purposes of 830 CMR 119A.6.2 the following terms have the following meanings:
Child Support Arrearages, the principal amount of child support, including medical support, which is unpaid as of the date on which it was due, whether the amount due is a fixed sum or is accruing periodically, including any amount of restitution ordered by a court or an administrative agency of competent jurisdiction. See M.G.L. c. 119A, § 6(b)(1).
Child Support Enforcement Division, the single state agency for the Commonwealth responsible for establishing parentage and establishing, modifying and enforcing child support orders pursuant to Title IV, Part D of the Social Security Act, 42 U.S.C. § 651 et seq., and M.G.L. c. 119A. The Child Support Enforcement Division is a division contained within the Department of Revenue.
Commissioner, the Commissioner of Revenue or the Commissioner's duly authorized representative.
Obligor, an individual, or the estate of a decedent, who owes a duty of support, or who is liable under a child support obligation. See M.G.L. c. 119A, § 2.
(a) Settlement of Arrearages Owed to the Commonwealth. The Commissioner may accept an offer in settlement, including an offer payable by installments, that is less than the full amount of arrearages owed to the Commonwealth as a result of an assignment of child support rights pursuant to Title IV, Parts A and E, or Title XIX of the Social Security Act, where there is serious doubt as to liability or collectibility of such arrearages and upon a determination by the Commissioner that such settlement is in the best interests of the Commonwealth.
(b) Equitable Adjustment of Arrearages Owed to the Commonwealth. The Commissioner, in his discretion, may adjust arrearages owed to the Commonwealth as a result of an assignment of child support rights pursuant to Title IV, Parts A and E, or Title XIX of the Social Security Act when an obligor does not have the ability to pay the arrearages and principles of equity warrant such an adjustment and upon a determination by the Commissioner that such adjustment is in the best interests of the Commonwealth. In considering whether such equitable adjustment is appropriate, the Commissioner may consider the following factors:
1. arrearages owed to the Commonwealth accrued during periods the obligor received public assistance from any federal or state needs-based program;
2. the arrearages owed to the Commonwealth accrued during periods the obligor was incapacitated, unemployed or incarcerated and the obligor may have been eligible for a modification of the child support obligation had one been pursued for these periods and the obligor presents mitigating circumstances as to why no such modification was sought;
3. the obligor is reconciled with the custodial parent or is now the custodial parent, and a dependent child resides in the obligor's household; or
4. any other factor the Commissioner deems relevant, including the obligor's payment history, communication and cooperation with the Child Support Enforcement Division and attempts to secure a modification during any periods in which arrearages to the Commonwealth accrued.
(c) Conditions of Settlement of Equitable Adjustment. In accepting any settlement or request for equitable adjustment of arrearages owed to the Commonwealth, the Commissioner may require the obligor to abide by certain terms and conditions, including those set forth in 830 CMR 119A.6.2(5)(b).
(d) Commissioner's Authority. The Commissioner's authority is wholly discretionary; no obligor has a right to a settlement or equitable adjustment under these provisions. The Commissioner may delegate the authority granted pursuant to 830 CMR 119A.6.2 and the Deputy Commissioner of the Child Support Enforcement Division shall serve as the Commissioner's designee.
(a) Best Interests of the Commonwealth. The Commissioner shall consider the best interests of the Commonwealth in determining whether to settle or equitably adjust arrearages owed to the Commonwealth. The best interests of the Commonwealth are furthered by policies that promote payment of current support, promote responsible parenthood in support of a child's financial and emotional wellbeing, promote the best interests of the child, avoid the accrual of uncollectible debt that has a negative effect on the Commonwealth's child support program as measured by Title IV, Part D of the Social Security Act, and maximize receipt by the Commonwealth of federal incentives based on the performance of the child support program.
(b) Collectibility and Liability. Any child support arrearages owed to the Commonwealth may be settled or equitably adjusted upon a determination by the Commissioner that there is serious doubt as to either collectibility of the outstanding child support debt, or the obligor's liability. Serious doubt as to liability means the Commissioner has determined that the Child Support Enforcement Division's ability to prevail in a judicial enforcement proceeding is questionable. Serious doubt as to collectibility means the Commissioner has determined the obligor had no ability to pay the support when it first became due and had reason for not obtaining a modification; has no present ability to pay the arrearages owed to the Commonwealth; and no likely future ability to pay such arrearages.
(c) Fraud. The Commissioner will not settle a liability for child support arrearages owed to the Commonwealth where the Commissioner finds that the obligor has acted with intent to defraud, or has intentionally concealed assets or financial history from the Commissioner. Concealment of assets shall include the placement of assets beyond the reach of the Commissioner or the failure to disclose information relating to assets which obscures the existence of such assets, whether accompanied by act, misrepresentation, silence or suppression of the truth. The Commissioner may void any agreement to settle or equitably adjust arrearages owed to the Commonwealth when such agreement was entered into based upon fraudulent information.
(a) Submission of Offer in Settlement or Request for Equitable Adjustment. The offer in settlement or request for equitable adjustment shall include a written statement by the obligor, signed under the penalties of perjury, setting forth the reasons why the Commissioner should either settle or adjust the child support arrearages owed to the Commonwealth for less than the full amount owed. Along with the offer in settlement or request for equitable adjustment, the obligor must submit a statement of financial condition and other information as the Commissioner may require, signed by the obligor under the penalties of perjury. Failure to provide complete information in connection with an offer to settle or a request for equitable adjustment, or the furnishing of false information related to such offer or request, shall be grounds for rejection of such offer to settle or request for equitable adjustment.
(b) Terms and Conditions. As a term or condition of a settlement or equitable adjustment, the Commissioner may require the obligor to do one or more of the following:
1. demonstrate past, present, and future inability to pay by providing financial and other records;
2. make regular payments of current child support for a specified period; or
3. actively seek paid employment, participate in a community service program, participate in an appropriate job readiness or job training program, or participate in a responsible parenthood program provided by a social services agency recognized by the Commissioner.
The Commissioner may, at his discretion, fashion such other equitable terms and conditions as the Commissioner finds to be in the best interests of the Commonwealth and that promote financial and emotional support of children.
(c) Acceptance of Offer in Settlement or Request for Equitable Adjustment. An offer in settlement or request for equitable adjustment shall be considered accepted only when the Commissioner notifies the obligor in writing of its acceptance. The Commissioner's acceptance of an offer or request may be conditioned on the posting of any security that is deemed necessary for the protection of the interests of the Commonwealth. The Deputy Commissioner for the Child Support Enforcement Division as designee of the Commissioner must approve the settlement or equitable adjustment. If the settlement or equitable adjustment is fifty thousand or more dollars less than the full amount of the arrearages owed to the Commonwealth, the settlement or equitable adjustment must be approved by the Deputy Commissioner for the Child Support Enforcement Division and the General Counsel for the Department. The written agreement shall be signed by all parties and shall set forth the terms and conditions for the Commissioner's acceptance of the settlement or equitable adjustment and all relevant information, including the names of all parties, the amount of arrearages settled or equitably adjusted, the amount actually paid under the agreement, and any other conditions of settlement or equitable adjustment agreed to by the obligor.
(d) No Stay of Collection. The submission of an offer in settlement or request for equitable adjustment shall not operate to stay the collection of any current or past-due child support.
A settlement or equitable adjustment agreement under 830 CMR 119A.6.2 relates to the amount of arrearages owed to the Commonwealth by the obligor with respect to which the offer is submitted, and the obligor's liability for such arrearages is conclusively settled thereby. Any portion of the arrearages with respect to which the offer or request is submitted, and the collection of which is not contemplated under the agreement, will be waived by the commissioner, unless the agreement is voided as provided herein.
A settlement or equitable adjustment agreement under 830 CMR 119A.6.2 is final, and neither the obligor nor the Commissioner may reopen matters covered by the agreement, by court action or otherwise, except by reason of falsification or concealment of assets by the obligor; mutual mistake of a material fact sufficient to cause a contract to be reformed or set aside; serious doubt as to collectibility, where the agreement is based on serious doubt as to liability; or failure by an obligor to comply with the terms and conditions of a settlement or equitable adjustment agreement under 830 CMR 119A.6.2. Should an obligor fail to comply with the terms and conditions of an agreement under 830 CMR 119A.6.2, the Commissioner may void the agreement and thereafter the Child Support Enforcement Division may take any action authorized by M.G.L. c. 119A to collect the full amount of assigned arrearages owed by the obligor.
REGULATORY AUTHORITY
830 CMR 119A.6.2: M.G.L. c. 119A, § 6.
Date of Promulgation: 12/19/03
