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#31
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Question about statute...GARNISHMENT
On Aug 27, 2:22 pm, "Bob Whiteside" wrote:
wrote in message oups.com... On Aug 26, 12:49 pm, "Bob Whiteside" wrote: wrote in message roups.com... On Aug 24, 11:44 pm, "Bob Whiteside" wrote: wrote in message roups.com... On Aug 23, 2:38 pm, "Bob Whiteside" wrote: wrote in message roups.com... "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, ... read more » |
#32
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Question about statute...GARNISHMENT
On Aug 27, 4:57 pm, "Bob Whiteside" wrote:
wrote in message oups.com... 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. |
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