TITLE XLIII
DOMESTIC RELATIONS

Chapter 458-B
INCOME ASSIGNMENT

Section 458-B:1

    458-B:1 Definitions. –
When used in this chapter, unless the specific context indicates otherwise:
I. "Arrearage" means the total amount of unpaid support which has accrued since the effective date of a legal order which stipulates a periodic support amount due, and shall include any amount of unreimbursed assistance accumulated prior to the issuance of the legal order of support.
I-a. "Department" means the department of health and human services.
II. " Dependent child " means any natural or adoptive child who has not reached the age of 18 and is not self-supporting, married, or a member of the armed services.
III. "Disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld or required by the employer to be withheld as a condition of employment.
IV. [Repealed.]
V. "Employer" means any person, firm, corporation, or association, or any political subdivision or department of the state or federal government, which employs a person or pays income or any other compensation.
VI. "Legal order of support" means any valid judgment or order for the support of spouses, dependent children, or both, issued by any court or administrative body of the state of New Hampshire or any other state, including an order in a final decree of divorce.
VII. "Obligee" means the person found to be legally entitled to receive child support, spousal support, or combination child and spousal support.
VIII. "Obligor" means the person found to be legally liable for child support, spousal support, or combination child and spousal support.
IX. "Income" means compensation paid or payable for personal services, whether denominated as income, salary, commission, bonus, or otherwise, and specifically includes periodic payments pursuant to pension or retirement programs, disability plans, and workers' compensation payments.
X. "IV-D services" means the services provided by the state under the state plan for the collection of support and establishment of paternity adopted pursuant to Title IV-D of the Social Security Act.
XI. "Payable through the department" means that a legal order of support is enforced or administered by the department.
XII. " Lump-sum payment " means any income paid or payable to the obligor as severance pay, accumulated sick pay, vacation pay, bonuses, commissions, or any other similar payments, excluding income paid or payable to the obligor as usual earnings on regular paydays and further excluding reimbursement for employment-related expenses incurred by the obligor.

Source. 1985, 331:2. 1990, 139:2, 3. 1991, 12:1, 2. 1993, 287:2. 1995, 310:163, 164, 175. 1997, 263:33. 2006, 185:6. 2010, 370:1, eff. July 23, 2010.

Section 458-B:2

    458-B:2 Assignment of Income. –
I. Child support, spousal support or combination child and spousal support orders issued or modified after January 1, 1994, whether payable through the department or directly to an obligee, shall include a provision assigning a portion of the obligor's income, salaries, commissions, earnings, or other periodic income from whatever source, except as expressly limited by law and as otherwise provided in this section. If the state is paying public assistance for the benefit of the minor children, the assignment shall be required and shall take effect immediately. In all other cases, where the state is not paying public assistance, the assignment shall be suspended by the court:
(a) Where there is a written agreement between the obligor and obligee and such agreement is approved by the court or administrative body; provided that the court may require the establishment of a dedicated checking account.
(b) Where there is a written agreement between the obligor and obligee, approved by the court, that establishes a "direct deposit" dedicated checking account for the purpose of receiving regularly scheduled payments. All basic service fees of the dedicated account remain the responsibility of the obligor. The obligee shall maintain a record of all monthly bank statements for the duration of the agreement. The statements shall be presented to the court upon request. If the obligee is unwilling to agree to the use of a direct deposit dedicated checking account, the court shall inquire as to the reason for the obligee's objection. Unless a substantive reason is given to the judge as to why a direct deposit checking account cannot be used, the judge may order that a 30-day trial direct deposit checking account be used for payment of child support. The direct deposit procedure shall be revoked when a delinquency equal to the support obligation for one month is incurred. An income assignment shall then be initiated without requiring an amendment to the support order or further action by the court or administrative body that issued the order.
(c) When the court or administrative body finds that there is good cause not to require immediate income assignment. For purposes of this paragraph, any finding that there is good cause not to require assignment must be based on at least:
(1) A written determination and explanation by the court or administrative body as to why implementing immediate assignment would not be in the best interests of the child; and
(2) Proof of the obligor's timely payment of any previously ordered support.
II. (a) In the event that an assignment is suspended in the first instance, it shall take effect at the request of the obligor; upon a court finding that the obligor is in violation or contempt of an order of support; or after notice and an opportunity to contest pursuant to RSA 458-B:5 and RSA 458-B:7, when the state has commenced payment of public assistance for the benefit of a child, or when an arrearage amounting to the support owing for a one-month period has accrued.
(b) In the event an assignment is suspended in the first instance because there has been a written agreement approved by the court or a determination of good cause, an obligee may seek the initiation of the assignment upon a court finding that the obligor is in violation or contempt of an order of support.
III. Child support or combination child and spousal support orders issued or modified before January 1, 1994, which are payable through the department are subject to an income assignment as follows:
(a) Orders in effect prior to October 1, 1985, shall be subject to the initiation of an income assignment when an arrearage amounting to the support owing for a one-month period has accrued.
(b) Child support or combination child and spousal support orders issued or modified between October 1, 1985, and July 14, 1989, shall contain an income assignment provision whereby assignment shall be initiated when a delinquency equal to the support obligation for one month is incurred.
(c) Child support or combination child and spousal support orders issued or modified between July 14, 1989, and January 1, 1994, shall contain an income assignment provision whereby they are subject to immediate income assignment except:
(1) Where there is a written agreement between the obligor and obligee and such agreement is approved by the court or administrative body.
(2) When the court or administrative body finds that there is good cause not to require immediate income assignment. For purposes of this paragraph, any finding that there is good cause not to require immediate assignment must be based on at least a written determination and explanation by the court or administrative body as to why implementing immediate assignment would not be in the best interests of the child, and proof of the obligor's timely payment of any previously ordered support.
(d) In the case of orders not subject to immediate income assignment under subparagraphs III(a), (b) and (c) of this section, income assignment may be initiated upon a court finding that the obligor is in violation or contempt of an order of support or, after notice and an opportunity to contest pursuant to RSA 458-B:5 and RSA 458-B:7, when the state has commenced payment of public assistance for the benefit of a child or when an arrearage amounting to the support owing for a one-month period has accrued.
IV. Child support, spousal support or combination child and spousal support orders issued or modified before January 1, 1994, which are not payable through the department are subject to an income assignment as follows:
(a) Orders in effect prior to October 1, 1985, may be enforced through an income assignment by the obligee by petition to the court to make support payable to the obligee by income assignment.
(b) Orders issued or modified between October 1, 1985, and January 1, 1994, shall contain an income assignment provision whereby assignment shall be invoked when a delinquency equal to the support obligation for one month is incurred.

Source. 1985, 331:2. 1991, 12:3. 1993, 287:3. 1995, 310:175. 1997, 263:33. 2002, 227:1, 2, eff. July 16, 2002.

Section 458-B:3

    458-B:3 Department of Health and Human Services as Responsible Agency. –
I. The department shall be the agency responsible for the administration of this chapter for child support orders, and combination child support and spousal support orders when an application for services under Title IV-D of the Social Security Act has been filed with the department. The department does not administer orders providing only for spousal support.
II. Upon receipt of appropriate application for IV-D services, together with such fees, if any, as have been established by the commissioner, the department shall be authorized to take legal action on behalf of said applicant and shall institute income withholding under this chapter or administrative procedures under RSA 161-C.
III. Collection and disbursement of all support orders initially issued in the state on or after January 1, 1994, which are not being enforced by the department, shall be enforced through the state disbursement unit where the obligor is subject to income withholding pursuant to 458-B, whether or not the obligee has applied for IV-D services. In such cases, the department's role is limited to monitoring, collecting, and disbursing moneys under this section.
IV. [Repealed.]
V. [Repealed.]
VI. [Repealed.]
VII. When the arrearage on support obligations payable through the department accumulates to an amount equal to the support obligation for one month, an income assignment shall be initiated without requiring the department to amend the support order or seek further action by the court or administrative body that issued the order.

Source. 1985, 331:2. 1989, 126:2, 3. 1990, 139:4. 1991, 12:4, 5. 1993, 287:4, 5, 13, I, II. 1995, 310:165, 175, 183. 1997, 263:28; 263:33, 34, II, eff. Aug. 18, 1997.

Section 458-B:4

    458-B:4 Amount Withheld. –
I, II. [Repealed.]
III. The amount withheld by an income assignment shall include both the amount of support stated in the legal order of support as well as an additional amount which shall be applied to any arrearage. Said arrearage amount withheld shall be no less than 20 percent of the current support withheld, but may be more where circumstances so warrant. In cases where the arrearage due is less than 20 percent of the current support withheld, the amount of arrearage withheld shall be the full amount of the arrearage. When an arrearage continues to exist following the termination of an obligation to support, the income assignment shall continue in effect until such time as the arrearage is eliminated.
III-a. Notwithstanding and in addition to the provisions in paragraph III, where an obligor is not in compliance with a legal order of support, as defined by RSA 161-B:2, III, any lump-sum payment to an obligor shall be subject to an income assignment up to the amount of any arrearage.
IV. Notwithstanding paragraphs III and III-a, the total amount withheld shall not exceed the amount specified in 15 U.S.C. 1673(b).
V. When child support is payable through the department and an obligor receives unemployment compensation benefits, the benefits payable to the obligor shall be subject to withholding by assignment. The amount withheld from the benefits pursuant to RSA 282-A:159, II shall be 20 percent of the obligor's weekly benefit amount, any benefits payable up to that amount, or the amount of the order of child support, whichever is less. The obligor may voluntarily increase the withheld amount up to the full amount of his unemployment benefits. Notwithstanding the foregoing, a court issuing or modifying an order for support may order that more than 20 percent of the obligor's weekly benefit amount be withheld.
VI. When less than the full amount of a legal order of support is withheld from the obligor's income, the difference shall accrue as arrears as long as the legal order of support remains in effect. Amounts withheld from income to satisfy support obligations shall be given the following priority by the employer, unless a court or administrative order directs otherwise:
(a) Current child and spousal support;
(b) Health insurance premiums or current cash medical support obligations;
(c) Arrearages; and
(d) Other child support obligations.

Source. 1985, 331:2. 1988, 234:4. 1989, 126:4. 1990, 139:7. 1991, 12:6. 1993, 287:6-8, 13, III. 1995, 310:175. 1997, 263:33. 2007, 227:2. 2010, 370:2, 3, eff. July 23, 2010.

Section 458-B:5

    458-B:5 Notice to Obligor. –
I. When support is payable through the department if income is not subject to immediate assignment under this chapter, including cases subject to a finding of good cause or to a written agreement, before notice of the income assignment may be given to an employer by the department, the obligor shall be given at least 15 days' prior notice of the commencement of income withholding procedures under this chapter. The notice to the obligor shall include:
(a) The amount to be withheld.
(b) A statement that the withholding applies to any current or subsequent employment.
(c) The procedures for contesting withholding and that the only basis for contesting withholding is a mistake of fact.
(d) The period within which the obligor must contact the department in order to contest the assignment and that failure to notify the department within the specified time limit will result in the commencement of assignment procedures.
II. For orders issued or modified on or after October 1, 1985, when support is not payable through the department and income is not subject to immediate assignment under this chapter, including cases subject to a finding of good cause or to a written agreement, before an individual or a legal representative seeks to establish an income assignment payable directly to an obligee, notice must be given to the obligor at least 15 days prior to commencement of income assignment procedures under this chapter. The notice to the obligor shall include the notice provisions under subparagraphs (a), (b), and (c) of paragraph I and a notice of the period within which the obligor must give written notice to the obligee in order to contest the assignment.
III. The notice provisions under this section shall also apply in all cases when income assignment is to be increased to address arrearages, when the income assignment to be initiated includes current support and payment on arrears, and when amounts are to be withheld by the department from unemployment compensation.

Source. 1985, 331:2. 1993, 287:9. 1995, 310:175. 1997, 263:29, 30, 33, eff. Aug. 18, 1997.

Section 458-B:6

    458-B:6 Notice to Employer. –
Before the commencement of withholding procedures, the obligor's employer shall be given notice of the following:
I. The amount to be withheld and that it cannot exceed the limits set under RSA 458-B:4, IV.
II. That the employer must implement withholding no later than the first pay period that occurs after 14 days after the notice was mailed.
III. That the withholding is binding upon the employer until further notice.
IV. That the employer must send the withheld amount to the state or other payee at the same time the obligor is paid.
V. That the employer is liable for the accumulated amount it should have withheld if it fails to withhold in accordance with the provisions of the notice.
VI. That the withholding under this section shall have priority over any other legal process under state law against the same income.
VII. That in addition to the amount withheld for support and arrearage, the employer may deduct a fee of $1.00 for each withholding for the administrative cost incurred as a result of the withholding procedures.
VIII. That the employer shall be guilty of a misdemeanor and subject to a fine of up to $1,000 for discharging, refusing to employ, or taking any disciplinary action against an obligor because of the withholding procedures.
IX. That the employer shall notify the state or other payee within 15 days of the obligor's termination of employment, and shall provide the obligor's last known address and the name and address of the present employer, if known.
X. That the employer shall be guilty of a misdemeanor and subject to a fine of up to $1,000 for failure to comply with the provisions of paragraphs I-V.
XI. That the employer shall be liable for an administrative fine of $100 per pay period for each employee who has an income assignment obligations with that employer payable directly to the department with respect to whom the employer has willfully failed to comply with the provisions of paragraphs II and IV. Prior to assessing such fine against the employer, the department shall notify the employer of its intent to assess the fine, the amount of the fine, the date by which the fine is payable, and shall provide the employer with the opportunity to contest the imposition of the fine. The only basis for contesting the imposition of such fine is a mistake of fact or that the employer did not knowingly fail to comply with the provisions of paragraphs II and IV.

Source. 1985, 331:2. 1990, 139:5, 6. 1992, 101:1. 1995, 310:175. 1997, 263:33, eff. Aug. 18, 1997.

Section 458-B:7

    458-B:7 Opportunity to Contest Assignment. –
I. (a) In cases in which support is payable through the department, within 45 days from the date of the notice to the obligor required by RSA 458-B:5, the department shall:
(1) Provide to the obligor an opportunity to present his case to the department;
(2) Determine if the withholding will occur based on an evaluation of the facts; and
(3) Provide notice to the obligor of whether or not the withholding will occur, and if it is to occur, include in the notice the time when the withholding will begin and the information given to the employer in the notice required under RSA 458-B:6.
(b) If the obligor contests the withholding as provided in this section, the notice to the employer required under RSA 458-B:6 shall not be sent until a decision is made under subparagraph I(a)(2).
II. In cases not subject to immediate assignment under RSA 458-B:2, I and in which support is not payable through the department, and where an obligee is seeking to establish or implement an income assignment under this chapter, if an obligor contests assignment, a judicial determination must be made prior to initiating the income assignment.
III. Assignment may not be contested on the basis that a one-month arrearage does not exist at the time of a judicial or administrative hearing if such an arrearage existed at the time when the notice to the obligor was mailed or any time thereafter.

Source. 1985, 331:2. 1993, 287:10. 1995, 310:175. 1997, 263:33, eff. Aug. 18, 1997.

Section 458-B:8

    458-B:8 Withholding at Request of Obligor. – Upon the request of the obligor, the department may establish income withholding under this chapter. Where an obligor has requested income withholding, no accrual of arrearage is necessary prior to the commencement of income withholding.

Source. 1985, 331:2. 1995, 310:175. 1997, 263:33, eff. Aug. 18, 1997.

Section 458-B:9

    458-B:9 Judicial Income Assignment. – Nothing in this chapter precludes a judge upon petition of a party or sua sponte from ordering an immediate income assignment without accrual of arrearages, when it is deemed to be in the best interest of the child, obligee, or obligor to do so. A judicial order under the terms of this chapter will satisfy all due process required by this chapter.

Source. 1985, 331:2. 1993, 287:11. 1997, 263:33, eff. Aug. 18, 1997.

Section 458-B:10

    458-B:10 Termination of Income Assignment. – The department shall provide for the termination of assignment in cases payable through the department where the support obligation has terminated and arrears, if any, have been paid or the whereabouts of the child and custodial parent are unknown.

Source. 1985, 331:2. 1993, 287:12. 1995, 310:175. 1997, 263:33, eff. Aug. 18, 1997.

Section 458-B:11

    458-B:11 Rulemaking. – The commissioner of the department of health and human services shall adopt rules, under RSA 541-A, as may be necessary for the purposes of this chapter.

Source. 1985, 331:2. 1995, 310:182, eff. Nov. 1, 1995.