Florida Senate - 2023                                     SB 536
       
       
        
       By Senator Garcia
       
       
       
       
       
       36-01203-23                                            2023536__
    1                        A bill to be entitled                      
    2         An act relating to child support; amending s. 61.046,
    3         F.S.; conforming a cross-reference; revising the
    4         definition of the term “depository”; amending s.
    5         61.13016, F.S.; revising requirements for the
    6         deferment of payment agreements for child support;
    7         amending s. 61.181, F.S.; revising the procedures for
    8         collection and distribution of court depository fees;
    9         amending s. 61.1811, F.S.; conforming a cross
   10         reference; amending s. 61.30, F.S.; removing
   11         exceptions to the prohibition on treating
   12         incarceration as voluntary employment; amending s.
   13         409.256, F.S.; revising requirements for the
   14         Department of Revenue to commence proceedings
   15         regarding paternity and child support; amending s.
   16         409.2563, F.S.; requiring and specifying procedures
   17         for the clerk of the court to credit depository
   18         accounts for collections received by another state;
   19         providing an effective date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Subsections (2) and (4) of section 61.046,
   24  Florida Statutes, are amended to read:
   25         61.046 Definitions.—As used in this chapter, the term:
   26         (2) “Clerk of Court Child Support Collection System” or
   27  “CLERC System” means the automated system established pursuant
   28  to s. 61.1811 s. 61.181(2)(b)1., integrating all clerks of court
   29  and depositories and through which payment data and State Case
   30  Registry data is transmitted to the department’s automated child
   31  support enforcement system.
   32         (4) “Depository” means the central governmental depository
   33  established by the clerk of the circuit court pursuant to s.
   34  61.181, created by special act of the Legislature or other
   35  entity established before June 1, 1985, to perform depository
   36  functions and to receive, record, report, disburse, monitor, and
   37  otherwise handle alimony and child support payments not
   38  otherwise required to be processed by the State Disbursement
   39  Unit.
   40         Section 2. Subsection (1) of section 61.13016, Florida
   41  Statutes, is amended to read:
   42         61.13016 Suspension of driver licenses and motor vehicle
   43  registrations.—
   44         (1) The driver license and motor vehicle registration of a
   45  support obligor who is delinquent in payment or who has failed
   46  to comply with subpoenas or a similar order to appear or show
   47  cause relating to paternity or support proceedings may be
   48  suspended. When an obligor is 15 days delinquent making a
   49  payment in support or failure to comply with a subpoena, order
   50  to appear, order to show cause, or similar order in IV-D cases,
   51  the Title IV-D agency may provide notice to the obligor of the
   52  delinquency or failure to comply with a subpoena, order to
   53  appear, order to show cause, or similar order and the intent to
   54  suspend by regular United States mail that is posted to the
   55  obligor’s last address of record with the Department of Highway
   56  Safety and Motor Vehicles. When an obligor is 15 days delinquent
   57  in making a payment in support in non-IV-D cases, and upon the
   58  request of the obligee, the depository or the clerk of the court
   59  must provide notice to the obligor of the delinquency and the
   60  intent to suspend by regular United States mail that is posted
   61  to the obligor’s last address of record with the Department of
   62  Highway Safety and Motor Vehicles. In either case, the notice
   63  must state all of the following:
   64         (a) The terms of the order creating the support
   65  obligation.;
   66         (b) The period of the delinquency and the total amount of
   67  the delinquency as of the date of the notice or describe the
   68  subpoena, order to appear, order to show cause, or other similar
   69  order that has not been complied with.;
   70         (c) That notification will be given to the Department of
   71  Highway Safety and Motor Vehicles to suspend the obligor’s
   72  driver license and motor vehicle registration unless, within 20
   73  days after the date that the notice is mailed, the obligor:
   74         1.a. Pays the delinquency in full and any other costs and
   75  fees accrued between the date of the notice and the date the
   76  delinquency is paid;
   77         b. Enters into a written agreement for payment with the
   78  obligee in non-IV-D cases or with the Title IV-D agency in IV-D
   79  cases; or in IV-D cases, complies with a subpoena or order to
   80  appear, order to show cause, or a similar order, which may
   81  include a reasonable period of payment deferral to accommodate
   82  an obligor’s good faith job-seeking or job training efforts;
   83         c. Files a petition with the circuit court to contest the
   84  delinquency action;
   85         d. Demonstrates that he or she receives reemployment
   86  assistance or unemployment compensation pursuant to chapter 443;
   87         e. Demonstrates that he or she is disabled and incapable of
   88  self-support or that he or she receives benefits under the
   89  federal Supplemental Security Income program or Social Security
   90  Disability Insurance program;
   91         f. Demonstrates that he or she receives temporary cash
   92  assistance pursuant to chapter 414; or
   93         g. Demonstrates that he or she is making payments in
   94  accordance with a confirmed bankruptcy plan under chapter 11,
   95  chapter 12, or chapter 13 of the United States Bankruptcy Code,
   96  11 U.S.C. ss. 101 et seq.; and
   97         2. Pays any applicable delinquency fees.
   98  
   99  If an obligor in a non-IV-D case enters into a written agreement
  100  for payment before the expiration of the 20-day period, the
  101  obligor must provide a copy of the signed written agreement to
  102  the depository or the clerk of the court. If an obligor seeks to
  103  satisfy sub-subparagraph 1.d., sub-subparagraph 1.e., sub
  104  subparagraph 1.f., or sub-subparagraph 1.g. before expiration of
  105  the 20-day period, the obligor must provide the applicable
  106  documentation or proof to the depository or the clerk of the
  107  court.
  108         Section 3. Paragraph (a) of subsection (1), subsection (2),
  109  paragraph (a) of subsection (3), and subsections (4), (8), and
  110  (9) of section 61.181, Florida Statutes, are amended to read:
  111         61.181 Depository for alimony transactions, support,
  112  maintenance, and support payments; fees.—
  113         (1)(a) The office of the clerk of the court shall operate a
  114  depository unless the depository is otherwise created by special
  115  act of the Legislature or unless, prior to June 1, 1985, a
  116  different entity was established to perform such functions. The
  117  department shall, no later than July 1, 1998, extend
  118  participation in the federal child support cost reimbursement
  119  program to the central depository in each county, to the maximum
  120  extent allowable possible under existing federal law. The
  121  depository shall receive reimbursement for services provided
  122  under a cooperative agreement with the department pursuant to s.
  123  61.1826. Each depository shall participate in the State
  124  Disbursement Unit and shall implement all statutory and
  125  contractual duties imposed on the State Disbursement Unit. Each
  126  depository shall receive from and transmit to the State
  127  Disbursement Unit required data through the Clerk of Court Child
  128  Support Enforcement Collection System. Payments on non-IV-D non
  129  Title IV-D cases without income deduction orders may not shall
  130  not be sent to the State Disbursement Unit.
  131         (2)(a) The depository shall impose and collect a fee on
  132  payments on non-IV-D cases. The fee is 4 percent of the payment,
  133  except no fee may be less than $1 or more than $5.25 For
  134  payments not required to be processed through the State
  135  Disbursement Unit, the depository shall impose and collect a fee
  136  on each payment made for receiving, recording, reporting,
  137  disbursing, monitoring, or handling alimony or child support
  138  payments as required under this section. For non-Title IV-D
  139  cases required to be processed by the State Disbursement Unit
  140  pursuant to this chapter, the State Disbursement Unit shall, on
  141  each payment received, collect a fee, and shall transmit to the
  142  depository in which the case is located 40 percent of such
  143  service charge for the depository’s administration, management,
  144  and maintenance of such case. If a payment is made to the State
  145  Disbursement Unit which is not accompanied by the required fee,
  146  the State Disbursement Unit shall not deduct any moneys from the
  147  support payment for payment of the fee. The fee shall be a flat
  148  fee based, to the extent practicable, upon estimated reasonable
  149  costs of operation. The fee shall be reduced in any case in
  150  which the fixed fee results in a charge to any party of an
  151  amount greater than 3 percent of the amount of any support
  152  payment made in satisfaction of the amount which the party is
  153  obligated to pay, except that no fee shall be less than $1 nor
  154  more than $5 per payment made. The court shall consider the fee
  155  shall be considered by the court in determining the amount of
  156  support that the obligor is, or may be, required to pay. A fee
  157  may not be imposed on payments on IV-D cases.
  158         (b)1. The fee imposed in paragraph (a) shall be increased
  159  to 4 percent of the support payments which the party is
  160  obligated to pay, except that no fee shall be more than $5.25.
  161  The fee shall be considered by the court in determining the
  162  amount of support that the obligor is, or may be, required to
  163  pay. Notwithstanding the provisions of s. 145.022, the fee for
  164  non-IV-D cases must be distributed 75 percent of the additional
  165  revenues generated by this paragraph shall be remitted monthly
  166  to the Clerk of the Court Child Support Enforcement Collection
  167  System Trust Fund administered by the department as provided in
  168  subparagraph 2., calculated as follows:
  169         a.For each support payment of less than $33, 18.75 cents.
  170         b.For each support payment between $33 and $140 inclusive,
  171  an amount equal to 75 percent of the difference between 4
  172  percent of the payment amount not to exceed $5.25 and 3 percent
  173  of the payment amount not to exceed $5.00.
  174         c.For each support payment in excess of $140, 18.75 cents.
  175  
  176  These funds must shall be used exclusively for the development,
  177  implementation, and operation of the Clerk of the Court Child
  178  Support Enforcement Collection System to be operated by the
  179  depositories, including the automation of civil case information
  180  necessary for the State Case Registry. The department shall
  181  contract with the Florida Association of Court Clerks and the
  182  depositories to design, establish, operate, upgrade, and
  183  maintain the automation of the depositories to include, but not
  184  be limited to, the provision of online electronic transfer of
  185  information to the IV-D agency as otherwise required by this
  186  chapter. The department’s obligation to fund the automation of
  187  the depositories is limited to the state share of funds
  188  available in the Clerk of the Court Child Support Enforcement
  189  Collection System Trust Fund. Each depository created under this
  190  section must shall fully participate in the Clerk of the Court
  191  Child Support Enforcement Collection System and transmit data in
  192  a readable format as required by the contract between the
  193  Florida Association of Court Clerks and the department.
  194         2. For payments not processed through the State
  195  Disbursement Unit, the clerk of the court shall retain the
  196  balance of the fee for receiving, recording, reporting,
  197  disbursing, monitoring, or handling alimony or child support
  198  payments as required under this section.
  199         3.For payments processed through the State Disbursement
  200  Unit, the clerk of the court shall retain 40 percent of the fee
  201  for the depository’s administration, management, and maintenance
  202  of the case. After retaining 40 percent of the fee and paying
  203  the amount due to the Clerk of the Court Child Support
  204  Enforcement Collection System Trust Fund, the clerk of the court
  205  shall transmit the balance of the fee to the department for
  206  handling as program income under s. 61.1814.
  207         (c)Moneys to be remitted under subparagraphs (b)1. and 3.
  208  must be remitted no less often than monthly in accordance with
  209  s. 28.245 to the Clerk of the Court Revenue Remittance System.
  210         (d)Moneys to be remitted to the department by the
  211  depository shall be done daily by electronic funds transfer and
  212  calculated as follows:
  213         a. For each support payment of less than $33, 18.75 cents.
  214         b. For each support payment between $33 and $140, an amount
  215  equal to 18.75 percent of the fee charged.
  216         c. For each support payment in excess of $140, 18.75 cents.
  217         3. The fees established by this section shall be set forth
  218  and included in every order of support entered by a court of
  219  this state which requires payment to be made into the
  220  depository.
  221         (3)(a) For payments not required to be processed through
  222  the State Disbursement Unit, the depository shall collect and
  223  distribute all support payments paid into the depository to the
  224  appropriate party. On or after July 1, 1998, If a payment is
  225  made on a Title IV-D case which is not accompanied by the
  226  required transaction fee, the depository may shall not deduct
  227  any moneys from the support payment for payment of the fee.
  228  Nonpayment of the required fee shall be considered a
  229  delinquency, and when the total of fees and costs which are due
  230  but not paid exceeds $50, the judgment by operation of law
  231  process set forth in s. 61.14(6)(a) shall become applicable and
  232  operational. As part of its collection and distribution
  233  functions, the depository shall maintain records listing:
  234         1. The obligor’s name, address, social security number,
  235  place of employment, and any other sources of income.
  236         2. The obligee’s name, address, and social security number.
  237         3. The amount of support due as provided in the court
  238  order.
  239         4. The schedule of payment as provided in the court order.
  240         5. The actual amount of each support payment received, the
  241  date of receipt, the amount disbursed, and the recipient of the
  242  disbursement.
  243         6. The unpaid balance of any arrearage due as provided in
  244  the court order.
  245         7. Other records as necessary to comply with federal
  246  reporting requirements.
  247         (4)The depository shall provide to the IV-D agency, at
  248  least once a month, a listing of IV-D accounts which identifies
  249  all delinquent accounts, the period of delinquency, and total
  250  amount of delinquency. The list shall be in alphabetical order
  251  by name of obligor, shall include the obligee’s name and case
  252  number, and shall be provided at no cost to the IV-D agency.
  253         (7)(8)On or before July 1, 1994, The depository shall
  254  provide information required by this chapter to be transmitted
  255  to the Title IV-D agency by online electronic transmission
  256  pursuant to rules promulgated by the Title IV-D agency.
  257         (9)If the increase in fees as provided by paragraph (2)(b)
  258  expires or is otherwise terminated, the depository shall not be
  259  required to provide the Title IV-D agency the date provided by a
  260  payor as required by s. 61.1301.
  261         Section 4. Section 61.1811, Florida Statutes, is amended to
  262  read:
  263         61.1811 Clerk of the Court Child Support Enforcement
  264  Collection System Trust Fund.—There is hereby created the Clerk
  265  of the Court Child Support Enforcement Collection System Trust
  266  Fund to be used to deposit the department’s share of the fees
  267  generated in s. 61.181(2)(b)1 s. 61.181(2)(b).
  268         Section 5. Paragraph (c) of subsection (2) of section
  269  61.30, Florida Statutes, is amended to read:
  270         61.30 Child support guidelines; retroactive child support.—
  271         (2) Income shall be determined on a monthly basis for each
  272  parent as follows:
  273         (c) Except for incarceration for willful nonpayment of
  274  child support or for an offense against a child or person who is
  275  owed child support, Incarceration may not be treated as
  276  voluntary unemployment in establishing or modifying a support
  277  order. However, the court may deviate from the child support
  278  guideline amount as provided in paragraph (1)(a).
  279         Section 6. Paragraph (a) of subsection (2) of section
  280  409.256, Florida Statutes, is amended to read:
  281         409.256 Administrative proceeding to establish paternity or
  282  paternity and child support; order to appear for genetic
  283  testing.—
  284         (2) JURISDICTION; LOCATION OF HEARINGS; RIGHT OF ACCESS TO
  285  THE COURTS.—
  286         (a) The department may commence a paternity proceeding or a
  287  paternity and child support proceeding as provided in subsection
  288  (4) if:
  289         1. The child’s paternity has not been established.
  290         2. No one is named as the father on the child’s birth
  291  certificate or the person named as the father is the putative
  292  father named in an affidavit or a written declaration as
  293  provided in subparagraph 5.
  294         3. The child’s mother was unmarried when the child was
  295  conceived and born.
  296         4. The department is providing services under Title IV-D of
  297  the Social Security Act.
  298         5. The child’s mother, caregiver, or a putative father has
  299  stated in an affidavit, or in a written declaration as provided
  300  in s. 92.525(2), that the putative father is or may be the
  301  child’s biological father. The affidavit or written declaration
  302  must set forth the factual basis for the allegation of paternity
  303  as provided in s. 742.12(2).
  304         Section 7. Subsection (8) of section 409.2563, Florida
  305  Statutes, is amended to read:
  306         409.2563 Administrative establishment of child support
  307  obligations.—
  308         (8) FILING WITH THE CLERK OF THE CIRCUIT COURT; OFFICIAL
  309  PAYMENT RECORD; JUDGMENT BY OPERATION OF LAW.—The department
  310  shall file with the clerk of the circuit court a copy of an
  311  administrative support order rendered under this section. The
  312  depository operated pursuant to s. 61.181 for the county where
  313  the administrative support order has been filed shall:
  314         (a) Act as the official recordkeeper for payments required
  315  under the administrative support order;
  316         (b) Establish and maintain the necessary payment accounts;
  317         (c) Upon a delinquency, initiate the judgment by operation
  318  of law procedure as provided by s. 61.14(6); and
  319         (d) Perform all other duties required of a depository with
  320  respect to a support order entered by a court of this state.
  321  
  322  When a proceeding to establish an administrative support order
  323  is commenced under subsection (4), the department shall file a
  324  copy of the initial notice with the depository. The depository
  325  shall assign an account number and provide the account number to
  326  the department within 4 business days after the initial notice
  327  is filed. When the department receives a payment record from a
  328  IV-D agency or a court in another state, as the term “state” is
  329  defined by s. 88.1011, and the payment record shows the obligor
  330  made a payment in that state pursuant to an administrative
  331  support order rendered by the department, the department shall
  332  file the payment record with the clerk of the court depository,
  333  requesting the clerk to review the record and update the clerk’s
  334  payment accounts, applying credit for payments made to the other
  335  state for which the clerk has not previously provided credit. If
  336  the payment record from the other state indicates the obligor
  337  has made payments that are not reflected in the clerk’s payment
  338  accounts, the clerk must credit the account in the amount of the
  339  payment made to the other state. A party to the administrative
  340  proceeding may dispute the application of credit in a subsequent
  341  proceeding concerning payment under the administrative support
  342  order.
  343         Section 8. This act shall take effect July 1, 2023.