Support Enforcement

ORS 25.247
Rebuttable presumption of inability to pay child support when obligor incarcerated

objection

reinstatment of support order

rules

Text
Annotations

(1)

An obligor who is incarcerated for a period of 180 or more consecutive days shall be rebuttably presumed unable to pay child support and a child support obligation does not accrue for the duration of the incarceration unless the presumption is rebutted as provided in this section or as determined by the court.

(2)

The Department of Justice and the Department of Corrections shall enter into an agreement to conduct data matches to identify the obligors described in subsection (1) of this section.

(3)

Within 30 days following identification of an obligor described in subsection (1) of this section whose child support obligation has not already been modified due to incarceration, the entity responsible for support enforcement services under ORS 25.080 (Entity primarily responsible for support enforcement services) shall provide notice of the presumption to the obligee and obligor and shall inform all parties to the support order that, unless a party objects as provided in subsection (4) of this section, child support shall cease accruing beginning with the first day of the first month that follows the obligor becoming incarcerated for a period of at least 180 consecutive days and continuing through the support payment due in the last month prior to the reinstatement of the support order as provided in subsection (8) of this section. The entity shall serve the notice on the obligee in the manner provided for the service of summons in a civil action, by certified mail, return receipt requested, or by any other mail service with delivery confirmation and shall serve the notice on the obligor by first class mail to the obligor’s last-known address. The notice shall specify the month in which the obligor became incarcerated and shall contain a statement that the administrator represents the state and that low-cost legal counsel may be available.

(4)

Before the support order is suspended, a party may object to the presumption by sending an objection to the entity that served the notice under subsection (3) of this section within 30 days after the date of service of the notice. The objection must describe the resources of the obligor or other evidence that rebuts the presumption of inability to pay child support. The entity receiving the objection shall cause the case to be set for a hearing before a court or an administrative law judge. The court or administrative law judge may consider only whether the presumption has been rebutted.

(5)

If no objection is made under subsection (4) of this section, or if the court or administrative law judge finds that the presumption has not been rebutted, the administrator shall discontinue billing the obligor for the period of time described in subsection (3) of this section and no arrearage shall accrue for the period during which the obligor is not billed. In addition, the entity providing support enforcement services shall file with the circuit court in which the support order or judgment has been entered a copy of the notice described in subsection (3) of this section or, if an objection is made and the presumption is not rebutted, a copy of the court’s or administrative law judge’s order.

(6)

After the suspension of a support order, a party may object to the presumption of inability to pay by sending an objection to the entity that served the notice under subsection (3) of this section. The objection must describe the evidence of ability to pay that was not available at the time the order was suspended. The entity receiving the objection shall cause the case to be set for a hearing before a court or an administrative law judge. The court or administrative law judge may consider only whether the presumption has been rebutted. In making the determination, the court or administrative law judge shall consider any evidence presented by a party of the expenses an obligor will incur reintegrating into society following release from incarceration.

(7)

If an objection is made under subsection (6) of this section and the court or administrative law judge finds that the presumption has been rebutted, the support order will be reinstated at 50 percent of the previously ordered support amount on the first day of the first month following the finding by the court or administrative law judge.

(8)

An order that has been suspended as provided in subsection (3) of this section will automatically be reinstated at 50 percent of the previously ordered support amount on the first day of the first month that follows the 120th day after the obligor’s release from incarceration.

(9)(a) Within 30 days following reinstatement of the order pursuant to subsection (8) of this section, the administrator shall provide notice to all parties to the support order:

(A)

Specifying the last date on which the obligor was incarcerated;

(B)

Stating that by operation of law, billing and accrual of support resumed on the first day of the first month that follows the 120th day after the obligor’s release from incarceration; and

(C)

Informing the parties that the administrator will review the support order for purposes of modification of the support order as provided in subsection (10) of this section within 60 days following reinstatement of the order.

(b)

The notice shall include a statement that the administrator represents the state and that low-cost legal counsel may be available.

(c)

The entity providing support enforcement services shall file a copy of the notice required by paragraph (a) of this subsection with the circuit court in which the support order or judgment has been entered.

(10)

Within 60 days of the reinstatement under subsection (7) or (8) of this section, the administrator shall review the support order for purposes of modifying the support order. Reinstatement of support after an order has been suspended under this section is considered a substantial change of circumstances for purposes of child support modification proceedings.

(11)

Proof of incarceration for at least 180 consecutive days is sufficient cause for the administrator, court or administrative law judge to allow a credit and satisfaction against child support arrearages for each month that the obligor was incarcerated or that is within 120 days following the obligor’s release from incarceration unless the presumption of inability to pay has been rebutted.

(12)

Orders modified to zero prior to January 1, 2018, remain in force with reinstatement at the full amount ordered by the court occurring 61 days after release. Such orders are not subject to suspension and reinstatement as provided in this section.

(13)

The provisions of subsections (1) and (11) of this section apply regardless of whether child support enforcement services are being provided under Title IV-D of the Social Security Act.

(14)

The Department of Justice shall adopt rules to implement this section.

(15)

As used in this section, “support order” means a judgment or administrative order that creates child support rights and that is entered or issued under ORS 25.501 (Definitions for ORS 25) to 25.556 (Expeditious court hearings) or 419B.400 (Authority to order support) or this chapter or ORS chapter 107, 108, 109 or 110. [2017 c.464 §2; 2019 c.291 §7; 2021 c.500 §1; 2021 c.597 §49]