Rebuttable presumption of inability to pay child support when parent receiving certain assistance payments
- • rules
(1) Notwithstanding any other provision of Oregon law, a parent who is eligible for and receiving cash payments under ORS 412.001 (Definitions) to 412.069 (Appeal from denial of or failure to act on application or from modification or cancellation of aid), Title IV-A of the Social Security Act, the general assistance program as provided in ORS chapter 411 or a general assistance program of another state or tribe, the Oregon Supplemental Income Program or the federal Supplemental Security Income Program shall be rebuttably presumed unable to pay child support and a child support obligation does not accrue unless the presumption is rebutted.
(2) Each month, the Department of Human Services shall identify those persons receiving cash payments under the programs listed in subsection (1) of this section that are administered by the State of Oregon and provide that information to the administrator. If benefits are received from programs listed in subsection (1) of this section that are administered by other states, tribes or federal agencies, the obligor shall provide the administrator with written documentation of the benefits. The Department of Human Services shall adopt rules to implement this subsection.
(3) The administrator shall refer to the information provided in subsection (2) of this section prior to establishing any child support obligation. Within 30 days following identification of persons under subsection (2) of this section, 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 support payment due on or after the date the obligor first begins receiving the cash payments and continuing through the support payment due in the last month in which the obligor received the cash payments. The entity responsible for support enforcement services 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 cash payments are first made and shall contain a statement that the administrator represents the state and that low cost legal counsel may be available.
(4) A party may object to the presumption by sending an objection to the entity responsible for support enforcement services under ORS 25.080 (Entity primarily responsible for support enforcement services) within 30 days after the date of service of the notice. The objection must describe the resources of the obligor or other evidence that might rebut 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, or if the court or administrative law judge finds that the presumption has not been rebutted, the Department of Justice 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 administrative law judge’s order.
(6)(a) Within 30 days after the date the obligor ceases receiving cash payments under a program listed in subsection (1) of this section, the Department of Justice shall provide notice to all parties to the support order:
(A) Specifying the last month in which a cash payment was made;
(B) Stating that the payment of those benefits has terminated and that by operation of law billing and accrual of support resumes; and
(C) Informing the parties of their rights to request a review and modification of the support order based on a substantial change in circumstance or pursuant to ORS 25.287 (Proceedings to modify orders to comply with formula) or any other provision of law.
(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 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.
(7) Receipt by a child support obligor of cash payments under any of the programs listed in subsection (1) of this section shall be sufficient cause for a court or administrative law judge to allow a credit and satisfaction against child support arrearage for months that the obligor received the cash payments.
(8) The notice and finding of financial responsibility required by ORS 416.415 (Notice and finding of financial responsibility) shall include notice of the presumption, nonaccrual and arrearage credit rights provided for in this section.
(9) The presumption, nonaccrual and arrearage credit rights created by this section shall apply whether or not child support enforcement services are being provided under Title IV-D of the Social Security Act.
(10) Application of the presumption, nonaccrual and arrearage credit rights created by this section does not constitute a modification but does not limit the right of any party to seek a modification of a support order based upon a change of circumstances or pursuant to ORS 25.287 (Proceedings to modify orders to comply with formula) or any other provision of law. In determining whether a change in circumstances has occurred or whether three years have elapsed, or such shorter cycle as determined by rule of the Department of Justice, since entry of a support order, the court or administrative law judge may not consider any action taken under this section as entry of a support order. The presumption stated in subsection (1) of this section applies in any modification proceeding. [1991 c.520 §3; 1993 c.799 §1; 1997 c.704 §24; 2001 c.104 §5; 2001 c.455 §6; 2003 c.75 §73; 2003 c.576 §299; 2007 c.861 §11; 2007 c.878 §3; 2009 c.80 §1; 2011 c.318 §2]
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