Question about statute...GARNISHMENT

On Aug 27, 2:22 pm, "Bob Whiteside" wrote:
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On Aug 26, 12:49 pm, "Bob Whiteside" wrote:
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On Aug 24, 11:44 pm, "Bob Whiteside" wrote:
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On Aug 23, 2:38 pm, "Bob Whiteside" wrote:
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"An order which modifies an initial order may include a provision
for
immediate income withholding."

This language seems to control. "Every initial order entered on or
after July 1, 1995" would seem to mean exactly what it says. Your
initial order was entered in 1988. There is no requirement that a
modification order contain a provision for immediate income
withholding, just authorization that a modification order may
provide
for immediate income withholding. DCSE is exceeding their
authority,
they need a court order.

I disagree. The states have no legal authority to create laws that
run
counter to federal laws.

That is not a correct statement, particularly in regard to family
law.
Federal and state power to create laws depends a great deal on
limits
on Congressional power in the Commerce Clause. That is why the
statute you quote below cannot simply require the state to comply.
However, the federal government can bribe the state into creating
draconian family law through spending provisions (the notorious
matching funds) under the Spending Clause, which is a much wider
power. The federal government cannot just create federal family
law.
Your statement forgets about federalism. Look at this wikipedia
article for some information on how far this spending power goes,
http://en.wikipedia.org/wiki/South_Dakota_v._Dole

States have the decision making autonomy to adopt the entire federal
legislative scheme or none of it. Every state decided to adopt the
federal
family law provisions in what is commonly referred to as Welfare
Reform
to
continue receiving federal revenue share money for welfare and CS
adminisrtation. The states have no legal right to pick and choose
which
federal laws they adopt - It's all or nothing.

The states have the legal right to pick and choose what federal laws
they adopt, the consequences of choice is all or nothing with regards
to the federal funding. Virginia does not have a simple choice
between all federal law and no federal law. Virginia can enact any
constitutional family law it wants.

I agree with the basic concept you are presenting, but when it comes to
family law it is all or nothing. When any state adopts federal family
law
they are adopting 100% of Title 42 Chapter 7 Section IV-D Part D. The
states don't get to go through the legislative scheme layed out in IV-D
and
pick and chose what portions of the scheme they like. They must adopt
every
aspect from 651 through 669b to be in compliance. States have the
flexibility to consider the federal law a minimum requirement and create
local legislation that is stricter than the federal law.

The states can go through the legislative scheme, but they will not be
in compliance and therefore should not receive federal funds.
However, the federal government relies on a government official to
determine compliance and if that official erroneously determines
compliance, then the state law may not be in compliance with the
federal law. The federal government has to rely on this spending
clause power as the basis of the legislation because the legislation
does not involved interstate commerce.

Compliance is monitored annually and certification of state CSE programs are
provided each year. The states are required to make detailed reports to the
Secretary of HHS each year showing they have reviewed and complied with
federal CS program requirements. In addition, HHS does an audit every 3
years of state CSE programs, and more frequently should an conidition of
non-compliance be determined. Fines for non-compliance are where the big
money is - TANF Block Grants. The fine for a first failure to comply is 1
percent but not more than 2 percent of the block grant. Fine for a second
offenbse is 2 percent but not more than 3 percent for a second failure to
comply. And 3 percent but not more than 5 percent for third and subsequent
failures to comply.

I agree with you here. None of this is inconsistent with my
argument.



I do not know where you are getting this "the states has no legal
right" thing. The states have all the legal rights in this area of
law and can do whatever they wish, that is why the federal government
has to bribe the states to enact the laws the federal government
wants.

Here is a specific example - The IRS sets federal tax law and has
developed
specific rules that apply to family law situations. The federal rules
say
child support is taxable to the obligor and tax free to the obligee. The
states have no authority to change tax treatment of CS payments by
creating
a law, or creating a court order, stating taxes on CS will be paid by the
obligee. My point is the states have no legal right to create ruling
CONTRARY to federal law.

Your analogy is flawed. The federal government can do whatever it
wishes because the power to tax, like the power to spend, is
complete. Family law and tax law are two different animals with
regard to federal power over each.
http://en.wikipedia.org/wiki/Taxing_and_spending_clause

I disagree. Family law and tax law are tied together and are applied
together. CS guidelines are established based on tax policy related to a
parent's earnings. Asumptions are made in the CS guidelines about the tax
positions of the parents. Federal law dictates exemptions, filing status,
deductibility of spousal support, non-deductibility of CS payments, tax
consequences on retirement account transfers, eligibility for tax credits,
pre and post 18 support rules, etc.

I am not saying that they are not tied together. They certainly are.
The examples you cite are tax rules, based on state law legal
relationships. Just like the tax status of corporations.




If you are trying to say that failure to adopt the laws would lead to
the federal government withholding funds, that may be true, or it may
not, depending on whether the official administrating the program is
holding the states to the letter of the federal requirements. The
only enforcement mechanism the federal government has is to withhold
the funds. The federal government is obviously not doing so. In
other words, Virginia may not be in compliance with the federal laws.
This assumes, of course, the the law Briggman points to is current
Virginia law that is not contradicted by other Virginia law. Again
not federal law, Virginia law.

I disagree with your conclusion. Federal law has included a provision
for
immediate wage withholding without further action by a court since 1988.
Virginia created its law stating the language regarding immediate
withholding may be included in a court order starting in 1995. The
federal
withholding law has applied in Virginia since 1988. Virginia apparently
did
not decide until 1995 to provide notice in their court orders that the
federal law applied.

This is true only if there is some other provision of Virginia law
that says withholding is automatic. Your statement that "the federal
withholding law has applied in Virginia since 1988" is incorrect
because the federal withholding law is not the law that governs family
law in the state of Virginia but is merely a law that governs the
spending of funds appropriated by Congress. The federal government
has no ability to directly enact state family law.

So if there are annual certifications of state CS programs for compliance,
and federal audits of state CSE programs at least every three years, and
Virginia was not in compliance there ought to be lots of evidence Virginia
was fined with reduced TANF Block Grants over a 7 year period. Of course,
there is one other possibility - Virginia got a federal waiver from the
requirement to provide immediate withholding without an amendment to an
exisiting order because they had an alternative federally approved pilot
program in place covering withholding.

Yes! I think if they are not in compliance, this may have happened.
Or they may have been in substantial compliance (there is some
language about substantial compliance in the determinations that the
Secretary has to make. Or the Secretary could have just screwed up.
Here is the important thing though. If Briggman sues them for
violating his due process (setting aside the problems with showing
damages and the fact that the court will just enter an order),
Virginia cannot rely on federal law requirements that they do not meet
as controling Virginia procedure because the federal law is no the
type of law that applies directly to Virginia. Virginia has to adopt
the standard before CSE an enforce it.


For example, the beginning of the notorious Bradley Amendment say "In
order to satisfy section 654 (20)(A) of this title, each State must
have in effect laws requiring the use of the following procedures" and
goes on to give such a list. Section 654 is a list of state
requirements.
http://www.law.cornell.edu/uscode/ht..._42_00000654--...
But what happens if the state does not comply?

http://www.law.cornell.edu/uscode/ht..._42_00000609--...
(8) Noncompliance of State child support enforcement program with
requirements of part D
(A) In general
If the Secretary finds, with respect to a State's program under part D
of this subchapter, in a fiscal year beginning on or after October 1,
1997-
(i)
((III) on the basis of the results of an audit or audits conducted
under section 652 (a)(4)(C) of this title that a State failed to
substantially comply with 1 or more of the requirements of part D of
this subchapter (other than paragraph (24), or subparagraph (A) or (B)
(i) of paragraph (27), of section 654 of this title); and
(ii) that,

...

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On Aug 27, 4:57 pm, "Bob Whiteside" wrote:
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I lurk here a lot, and you are usually right, but you are wrong on
this one.

I think I figured out why we are not agreeing.

States have exclusive jurisdiction over "family law." Family law has been
defined by the courts as marriage, divorce, alimony, and child custody. The
federal courts excluded child support and CS enforcement from their
definition of family law. The IV-D legislative scheme, which includes the
immediate withholding provision, deals with CS, not family law as defined by
the courts.

I do not think that is the case, although it might be. They have an
even trickier way of getting around federalism by using the spending
power to require the states to do what they cannot require the states
to do directly.

This is all very abstract anyway. It does not really matter on a
practical level.

I have been talking about the federalization of CS and CSE which is
sometimes referred to as the "domestic relations exception" area of family
law. You are talking more generically about the state's right to create and
enforce family law issues other than CS.

Where we both agree, I believe, is federal intrusion into areas of family
law have been increasing. A recent example would be the push by the federal
government into domestic violence with the VAWA. The feds have tried to
redefine the VAWA issues as being under the Spending Clause (like CS) as
opposed to being a family law issue under the Commerce Clause. With the
advent of no-fault divorce, domestic violence is no longer a reason to get
divorced so it has shifted over to a public good type issue related to
federal spending.

Yeah, federal law intrusion into family law is awful. It ties the
hands of state legislatures. Any state legislature that might be
somewhat pro-father is stuck with having to comply with the federal
law because of the money involved. It is blackmail. Pure and
simple.

I will leave it at this. Keep the good advice coming.