MISSISSIPPI LEGISLATURE
2021 Regular Session
To: Judiciary A; Corrections
By: Representatives Yates, Summers, Williams-Barnes, Karriem, Anderson (110th), Anthony, Stamps
AN ACT TO CREATE NEW SECTION 43-19-36, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CHILD SUPPORT OBLIGATIONS SHALL BE SUSPENDED BY OPERATION OF LAW FOR PERSONS ORDERED TO PAY CHILD SUPPORT WHO ARE INCARCERATED OR INVOLUNTARILY INSTITUTIONALIZED FOR MORE THAN 180 DAYS, WITH CERTAIN EXCEPTIONS; TO PROVIDE THAT THE CHILD SUPPORT OBLIGATION WILL RESUME 60 DAYS AFTER THE NONCUSTODIAL PARENT IS RELEASED FROM INCARCERATION, AND THE NONCUSTODIAL PARENT'S CHILD SUPPORT ORDER AND OBLIGATION WILL BECOME ENFORCEABLE ON THAT DATE; TO AUTHORIZE THE DEPARTMENT OF HUMAN SERVICES WHEN ENFORCING A CHILD SUPPORT ORDER TO ADMINISTRATIVELY ADJUST THE ARREARS BALANCE FOR AN ORDER FOR CHILD SUPPORT THAT WAS SUSPENDED BECAUSE OF INCARCERATION OR INSTITUTIONALIZATION UNDER CERTAIN CONDITIONS; TO BRING FORWARD SECTION 93-11-71, MISSISSIPPI CODE OF 1972, WHICH REGULATE THE PROCEDURE FOR LATE OR UNPAID CHILD SUPPORT, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 43-19-36, Mississippi Code of 1972:
43-19-36. (1) For the purposes of this section, the following terms shall be defined as follows, unless the context otherwise indicates:
(a) "Incarcerated or involuntarily institutionalized" includes, but is not limited to, involuntary confinement to the Department of Corrections, a federal or state correctional facility, a county jail, a juvenile detention center or a mental health facility. This term does not include probation or work release.
(b) "Child support obligation" means the payment due on the current child support order, an arrears payment on a preexisting arrears balance, or interest on arrears.
(c) "Suspension" means a child support obligation being administratively set to Zero Dollars ($0.00) and the interest rate on preexisting arrears being administratively set to zero percent (0%) for the period in which the person owing support is incarcerated or involuntarily institutionalized, and prevents the accrual of arrears during that period of incarceration.
(2) Child support obligations shall be suspended, by operation of law, for any period exceeding one hundred eighty (180) consecutive days in which the person ordered to pay support is incarcerated or involuntarily institutionalized, unless either of the following conditions exists:
(a) The person owing support has the means to pay support in accordance with the guidelines established in Sections 43-19-101 and 43-19-103 while incarcerated or involuntarily institutionalized; or
(b) The person owing support was incarcerated or involuntarily institutionalized for an offense constituting domestic violence under Section 97-3-7, child abuse under Section 97-5-39, or criminal nonpayment of child support under Section 97-5-3.
(3) The child support obligation will resume the first day of the month following the expiration of sixty (60) days after the date the noncustodial parent is released from incarceration, and the noncustodial parent's child support order and obligation will become enforceable on that date. This section does not preclude a person owing support from seeking a modification of the child support order based on a change in circumstances or other appropriate reason.
(4) (a) The Department of Human Services enforcing a child support order under Title IV-D of the Social Security Act (42 USC Section 651 et seq.) may, upon written notice of the proposed adjustment to the obligor and the obligee, administratively adjust the arrears balance for an order for child support suspended under subsection (2) of this act if all of the following occur:
(i) The department verifies that arrears were accrued in violation of this section;
(ii) The department verifies that neither of the conditions set forth in paragraph (a) or (b) of subsection (2) of this section exist; and
(iii) Neither the support obligor nor obligee objects in writing within thirty (30) days of receipt of the notice of proposed adjustment by the department.
(b) If either the support obligor or obligee objects to the administrative adjustment set forth in this subsection, the department shall file a petition with the court for a determination of the arrears balance.
(c) The department may perform this adjustment without regard to whether it was enforcing the child support order at the time the parent owing support qualified for relief under this section.
(5) This section does not prohibit the department or a party from petitioning a court for a determination of child support or arrears amounts.
(6) This section applies to every child support obligation in which the person who is ordered to pay is incarcerated for one hundred eighty (180) days after the enactment of this section.
SECTION 2. Section 93-11-71, Mississippi Code of 1972, is brought forward as follows:
93-11-71. (1) Whenever a court orders any person to make periodic payments of a sum certain for the maintenance or support of a child, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, a judgment by operation of law shall arise against the obligor in an amount equal to all payments that are then due and owing.
(a) A judgment arising under this section shall have the same effect and be fully enforceable as any other judgment entered in this state. A judicial or administrative action to enforce the judgment may be begun at any time; and
(b) Such judgments arising in other states by operation of law shall be given full faith and credit in this state.
(2) Any judgment arising under the provisions of this section shall operate as a lien upon all the property of the judgment debtor, both real and personal, which lien shall be perfected as to third parties without actual notice thereof only upon enrollment on the judgment roll. The department or attorney representing the party to whom support is owed shall furnish an abstract of the judgment for periodic payments for the maintenance and support of a child, along with sworn documentation of the delinquent child support, to the circuit clerk of the county where the judgment is rendered, and it shall be the duty of the circuit clerk to enroll the judgment on the judgment roll. Liens arising under the provisions of this section may be executed upon and enforced in the same manner and to the same extent as any other judgment.
(3) Notwithstanding the provisions in subsection (2) of this section, any judgment arising under the provisions of this section shall subject the following assets to interception or seizure without regard to the entry of the judgment on the judgment roll of the situs district or jurisdiction and such assets shall apply to all child support owed including all arrears:
(a) Periodic or lump-sum payments from a federal, state or local agency, including unemployment compensation, workers' compensation and other benefits;
(b) Winnings from lotteries and gaming winnings that are received in periodic payments made over a period in excess of thirty (30) days;
(c) Assets held in financial institutions;
(d) Settlements and awards resulting from civil actions;
(e) Public and private retirement funds, only to the extent that the obligor is qualified to receive and receives a lump-sum or periodic distribution from the funds; and
(f) Lump-sum payments as defined in Section 93-11-101.
(4) Notwithstanding the provisions of subsections (1) and (2) of this section, upon disestablishment of paternity granted pursuant to Section 93-9-10 and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness of the arrears is equitable under the circumstances.
(5) In any case in which a child receives assistance from block grants for Temporary Assistance for Needy Families (TANF), and the obligor owes past-due child support, the obligor, if not incapacitated, may be required by the court to participate in any work programs offered by any state agency.
(6) A parent who receives social security disability insurance payments who is liable for a child support arrearage and whose disability insurance benefits provide for the payment of past due disability insurance benefits for the support of the minor child or children for whom the parent owes a child support arrearage shall receive credit toward the arrearage for the payment or payments for the benefit of the minor child or children if the arrearage accrued after the date of disability onset as determined by the Social Security Administration.
SECTION 3. This act shall take effect and be in force from and after July 1, 2021.