Tennessee Child Support Statute 36-5-101 | Divorce & Family Law

Tennessee Child Support Statute Section 36-5-101 as of 2012. Divorce and family law statute courtesy of MemphisDivorce.com and Memphis family law attorney Miles Mason, Sr.

Modification, Delinquencies, Standing to Petition, Court Costs and Attorneys Fees, Means of Collection, Scientific Parentage Tests.

(a) (1) Upon dissolution of a marriage, whether dissolved absolutely or by a perpetual or temporary decree of separation, the court may make an order and decree for the suitable support and maintenance of the children by either spouse or out of such spouse’s property, according to the nature of the case and the circumstances of the parties, the order or decree to remain in the court’s control.

(2) Courts having jurisdiction of the subject matter and of the parties are hereby expressly authorized to provide for the future support of the children, in proper cases, by fixing some definite amount or amounts to be paid in monthly, semimonthly, or weekly installments, or otherwise, as circumstances may warrant, and such awards, if not paid, may be enforced by any appropriate process of the court having jurisdiction, including levy of execution.

(3) In interstate cases, jurisdiction to modify, alter or enforce orders or decrees for the support of children shall be determined in accordance with the provisions of parts 20-29 of this chapter. In intrastate cases, jurisdiction to modify, alter or enforce orders or decrees for the support of children shall be determined in accordance with the provisions of parts 30 and 31 of this chapter.

(4) As used in this chapter, “order,” where the context requires, includes an order concerning child or medical support issued pursuant to an administrative proceeding in any other state.

(5) In establishing or enforcing any duty of support under this chapter, the court shall give full faith and credit to all paternity determinations of any other state or territory, made pursuant to a voluntary acknowledgment or pursuant to any administrative or judicial process.

(6) A voluntary acknowledgment of paternity that is completed under the provisions of § 68-3-203(g), § 68-3-302, or § 68-3-305(b), or under similar provisions of another state or government, when certified by the state registrar or other governmental or institutional entity maintaining the record of the acknowledgment, shall be a basis for establishing a support order without requiring any further proceedings to establish paternity.

(7) The state of Tennessee, its officers, employees, agents or contractors, any counties, county officials, the clerks of any court, or any Title IV-D child support enforcement agency shall not be liable, in any case, to compensate any person for repayment of child support paid or for any other costs, as a result of the rescission pursuant to § 24-7-113 of any voluntary acknowledgment, or the rescission of any orders of legitimation, paternity, or support.

(8) When a court having jurisdiction determines child support pursuant to the Tennessee child support guidelines, based on either the actual income or the court’s findings of an obligor’s ability to earn income, the final child support order shall create an inference in any subsequent proceeding that the obligor has the ability to pay the ordered amount until such time as the obligor files an application with the court to modify the ordered amount.

(9) Where the lump sum amount of retirement or pension benefits or of balances in an individual retirement account, §§ 401(k), 403(b), 457, codified in 26 U.S.C. §§ 401(k), 403(b) and 457, respectively, or any other tax qualified account has been considered by the trial court, and determined to be marital property to be divided, the distributions of such lump sum amounts necessary to complete the division of property, whether distributed in a single payment or by periodic payments, shall not be considered income for the purpose of determining a spouse or ex-spouse’s right to receive alimony or child support, but the income generated by the investment of such lump sum awards shall be considered income for such purpose.

(b) (1) Notwithstanding any other provision of law to the contrary, neither the department of human services, nor any Title IV-D child support contractor of the department, nor any recipient of public assistance in this or any other state or territory, nor any applicant for either public assistance in this or any other state or territory or for Title IV-D child support services from the department or any other Title IV-D agency in this or any other state or territory, shall be required to demonstrate to a court or administrative tribunal that the caretaker of the child for whom child support is sought is vested with any more than physical custody of the subject child or children, in order to have standing to petition for child support from the legal parent of the child or children for whom support is sought, or to seek enforcement or modification of any existing orders involving such child or children.

(2) Legal custody of a child to whom a child support obligation is owed shall not be a prerequisite to the initiation of any support action or to the enforcement or modification of any support obligation in such cases, whether or not the obligation has been assigned to this state or any other state or territory by operation of law.

(c) (1) The court shall set a specific amount that is due each month, to be paid in one (1) or more payments as the court directs. In making any decree or order pursuant to this section, the court shall consider the provisions of § 34-1-102(b). Unless the court finds otherwise, each order made under this section shall contain the current address of the parties.

(2) (A) The order or decree of the court may provide that the payments for the support of such child or children shall be paid either to the clerk of the court or directly to the spouse, or other person awarded the custody of the child or children; provided, however, that:

(i) The court shall order that all child support payments based upon an income assignment issued by the clerk be paid to the clerk of the court, except as set forth in subdivision (c)(2)(A)(ii), for child support cases that are subject to the provisions for central collection and disbursement pursuant to § 36-5-116; and

(ii) In all Title IV-D child support cases in which payment of child support is to be made by income assignment, or otherwise, and in all cases where payments made by income assignment based upon support orders entered on or after January 1, 1994, that are not Title IV-D support cases, but must be made to the central collection and disbursement unit as provided by § 36-5-116, and, except as may otherwise be allowed by § 36-5-501(a)(2)(B), the court shall only order that the support payments be made to the central collection and disbursement unit pursuant to § 36-5-116. No agreement by the parties in a parenting plan, either temporary or permanent, entered pursuant to the provisions of chapter 6, part 4 of this title, or any other agreement of the parties or order of the court, except as may otherwise be allowed by § 36-5-501(a)(2)(B), shall alter the requirements for payment to the central collection and disbursement unit as required by § 36-5-116, and any provision of any parenting plan, agreement or court order providing for any other payment procedure contrary to the requirements of § 36-5-116, except as may otherwise be allowed by § 36-5-501(a)(2)(B), whether or not approved by the court, shall be void and of no effect. No credit shall be given by the court, the court clerk or the department of human services, for child support payments required by the support order that are made in contravention of such requirements; provided, however, that the department may make any necessary adjustments to the balances owed to account for changes in the Title IV-D or central collection and disbursement status of the support case.

(B) (i) (a) When the court enters an order in which the paternity of a child is determined or support is ordered, enforced or modified for a child, each individual who is a party to any action pursuant to this part shall be immediately required to file with the court and, if the case is a Title IV-D child support case, shall immediately file with the local Title IV-D child support office, for entry into the state registry of support cases, and shall update, as appropriate, the parties’ and, for subdivisions (c)(2)(B)(i)(a)(1)-(B)(i)(a)(3), the child’s or children’s:

(1) Full name and any change in name;

(2) Date and place of birth. This information shall be filed with the court as a separate document containing the parties’ and the child’s or children’s names, dates of birth and social security numbers. The document shall be placed in an eight and one-half inch by eleven inch (81/2” x 11”) envelope containing the style of the case and docket number of the case and the document and envelope shall be file stamped by the clerk, and filed under seal in the case file. The document shall also be provided by the parties to the Title IV-D child support office together with the other information required in subdivisions (c)(2)(B)(i)(a)(1)-(8). The social security numbers and other information filed with the clerk shall be available to the clerk of court for processing of documents and legal actions such as, but not limited to, divorce certificates, garnishments, and income assignments. On request, the sealed information shall be made available to the department of human services and any other agency required by law to have access to the information and to other persons or agencies as ordered by the court.

(3) Residential and mailing addresses;

(4) Home telephone numbers;

(5) Driver license number;

(6) The name, address, and telephone number of the person’s employer;

(7) The availability and cost of health insurance for the child; and

(8) Gross annual income.

(b) The requirements of subdivision (c)(2)(B)(i)(a) may be included in the court’s order.

(ii) Each individual who is a party must update changes in circumstances of the individual for the information required by subdivision (c)(2)(B)(i)(a) within ten (10) days of the date of such change. At the time of the entry of the first order pertaining to child support after July 1, 1997, clear written notice shall be given to each party of the requirements of this subsection (c), procedures for complying with this subsection (c), and a description of the effect or failure to comply. Such requirement may be noted in the order of the court.

(iii) In any subsequent child support enforcement action, the delivery of written notice as required by Rule 5 of the Tennessee Rules of Civil Procedure, to the most recent residential or employer address shown in the court’s records or the Title IV-D agency’s records, as required in subdivision (c)(2)(B)(i)(a) shall be deemed to satisfy the due process requirements for notice and service of process with respect to that party, if there is a sufficient showing and the court is satisfied that a diligent effort has been made to ascertain the location and whereabouts of the party.

(iv) Upon motion of either party, upon a showing of domestic violence or the threat of such violence, the court may enter an order to withhold from public access the address, telephone number, and location of the alleged victim or victims or threatened victims of such circumstances. The clerk of the court shall withhold such information based upon the court’s specific order, but may not be held liable for release of such information.

(v) In any subsequent proceeding to modify or enforce support, there shall be a rebuttable presumption that the information provided by the parties, as required by this part, has not changed, unless a party has complied with the provisions of this section by updating the information with the court and, if the case is a Title IV-D child support case, with the local Title IV-D child support office.

(d) (1) All support payments that have been paid to the clerk of the court shall be distributed by the clerk, as provided in the order of the court, within ten (10) days; provided, that the payments made to the clerk of the court in Title IV-D child support cases shall be distributed and deposited pursuant to the operating agreements under subdivision (d)(3) and the provisions of subdivision (d)(6), after implementation of the statewide Title IV-D child support computer system in the clerk’s county, and after the appropriate notice to the clerk by the department under subdivisions (d)(3) and (6).

(2) In every child support case being processed through the state’s central collection and disbursement unit, if unable to provide the information concerning an order through a computer information transfer, the clerk shall send a copy of any new order or modification of such order, prior to or along with the first payment received pursuant to such order, to the department, or its designee, within ten (10) working days.

(3) Clerks participating in the operation of the statewide Title IV-D child support computer system shall be bound by the terms of the agreement and the laws, regulations, and policies and procedures of the Title IV-D child support program for the term of the agreement, unless the agreement is canceled by the department after notice to the clerk and an opportunity to correct any deficiencies caused by failure of the clerk to comply with federal or state regulations or procedures for operation of the system within thirty (30) days of such notice. While participating in the system, the clerks shall be entitled to receive the statutory fee for the collection and handling of child support obligations under the Title IV-D program. Any child support payment subject to distribution through the state’s central collection and disbursement unit that has been received by a clerk shall be sent immediately by the clerk to the department or its designee, without the necessity of a court order.

(4) The clerks of all courts involved in the collection of any child support shall cooperate with and provide any reasonable and necessary assistance to the department or its contractors in the transfer of data concerning child support to the statewide Title IV-D child support computer system.

(5) Whenever the clerk has ceased handling Title IV-D child support payments under the provisions of subdivision (d)(3), and only where the context requires, all provisions in this chapter relating to the duties or actions involving the clerk shall be interpreted to substitute the department or its contractor.

(6) In all cases in which child support payments are subject to processing through the state’s central collection and disbursement unit, the clerks shall, upon notice by the department, deposit all receipts of such child support payments on a daily basis to a bank account from which the state of Tennessee shall electronically debit those payments for the purpose of obtaining funds to distribute the child support obligations to the obligee.

(7) In all Title IV-D child support cases, child support payments shall be made by the obligor to the department. No credit shall be given to an obligor for any payments made by the obligor or by another person on behalf of the obligor, directly to an obligee or the obligor’s child or children, unless the obligee remits the payment to the department. In the event that a Title IV-D case is instituted subsequent to the establishment of an order of child support, the department shall notify the obligor and obligee and the appropriate clerk of this fact, and all payments of child support in Title IV-D cases shall be made by the obligor to the department, without further order of the court.

(8) When an order provides for the support of two (2) or more children in a case that is subject to enforcement under Title IV-D, and at least one (1) child is a public charge, based upon receipt of temporary assistance pursuant to title 71, chapter 3, part 1, TennCare-medicaid, or foster care or other custodial services from the state of Tennessee, the child support order shall be prorated by the department for purposes of distribution of the child support to the appropriate person or agency providing care or support for the child, without the need for modification of the child support order by the court.

(e) (1) (A) In making the court’s determination concerning the amount of support of any minor child or children of the parties, the court shall apply, as a rebuttable presumption, the child support guidelines, as provided in this subsection (e). If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child or children, or the equity between the parties. Findings that the application of the guidelines would be unjust or inappropriate shall state the amount of support that would have been ordered under the child support guidelines and a justification for the variance from the guidelines.

(B) Notwithstanding any provision of this section or any other law or rule to the contrary, if the net income of the obligor exceeds ten thousand dollars ($10,000) per month, then the custodial parent must prove, by a preponderance of the evidence, that child support in excess of the amount provided for in the child support guidelines is reasonably necessary to provide for the needs of the minor child or children of the parties. In making the court’s determination, the court shall consider all available income of the obligor, as required by this chapter, and shall make a written finding that child support in excess of the amount so calculated is or is not reasonably necessary to provide for the needs of the minor child or children of the parties. In determining each party’s income for the purpose of applying the child support guidelines, the court shall deduct each party’s capital losses from that party’s capital gains in each year.

(C) When making retroactive support awards, pursuant to the child support guidelines established pursuant to this subsection (e), in cases where the parents of the minor child are separated or divorced, but where the court has not entered an order of child support, the court shall consider the following factors as a basis for deviation from the presumption in the child support guidelines that child and medical support for the benefit of the child shall be awarded retroactively to the date of the parents’ separation or divorce:

(i) Whether the remaining spouse knew or could have known of the location of the child or children who had been removed from the marital home by the abandoning spouse; or

(ii) Whether the abandoning spouse, or other caretaker of the child, intentionally, and without good cause, failed or refused to notify the remaining spouse of the location of the child following removal of the child from the marital home by the abandoning spouse; and

(iii) The attempts, if any, by the abandoning spouse, or other caretaker of the child, to notify the remaining spouse of the location of the child following removal of the child from the marital home by the abandoning spouse.

(D) In cases in which the presumption of the application of the guidelines is rebutted by clear and convincing evidence, the court shall deviate from the child support guidelines to reduce, in whole or in part, any retroactive support. The court must make a written finding that application of the guidelines would be unjust or inappropriate, in order to provide for the best interests of the child or children or the equity between the parties.

(E) Deviations shall not be granted in circumstances where, based upon clear and convincing evidence:

(i) The remaining spouse has a demonstrated history of violence or domestic violence toward the abandoning spouse, the child’s caretaker or the child;

(ii) The child is the product of rape or incest of the mother by the father of the child;

(iii) The abandoning spouse has a reasonable apprehension of harm from the remaining spouse, or those acting on the remaining spouse’s behalf, toward the abandoning spouse or the child; or

(iv) The remaining spouse, or those acting on the remaining spouse’s behalf, has abused or neglected the child.

(F) In making any deviations from awarding child and medical support retroactively to the date of separation or divorce of the parties, the court shall make written findings of fact and conclusions of law to support the basis for the deviation, and shall include in the order the total amount of retroactive child and medical support that would have been paid retroactively to the date of separation or divorce of the parties, had a deviation not been made by the court.

(G) Nothing in this subdivision (e)(1) shall limit the right of the state of Tennessee to recover from the father or the remaining spouse expenditures made by the state for the benefit of the child, or the right, or obligation, of the Title IV-D child support agency to pursue retroactive support for the custodial parent or caretaker of the child, where appropriate.

(H) Any amounts of retroactive support ordered that have been assigned to the state of Tennessee, pursuant to § 71-3-124, shall be subject to the child support distribution requirements of 42 U.S.C. § 657. In such cases, the court order shall contain any language necessary to allow the state to recover the assigned support amounts.

(2) Beginning October 13, 1989, the child support guidelines promulgated by the department, pursuant to the rulemaking provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall be the guidelines that courts shall apply as a rebuttable presumption in child support cases.

(3) Child support guidelines shall be reviewed by the department of human services every three (3) years from the date of promulgation. The department shall make recommendations to the supreme court of any revisions needed in order to maintain compliance with the Family Support Act of 1988, and to ensure that application of the guidelines results in determinations of appropriate child support awards. A copy of the recommendations shall also be sent to the children and family affairs committee of the house of representatives and the general welfare, health and human services committee of the senate.

(4) (A) In addition to any other subtractions, calculations of net income under the guidelines shall take into consideration the support of any other children the obligor is legally responsible to provide. The court shall consider children of the obligor who are not included in a decree of child support, but for whom the obligor is legally responsible to provide support and is supporting, for the purposes of reducing the obligor’s net income, in calculating the guideline amount, or as a reason for deviation from the guidelines.

(B) In calculating amounts of support for children under the guidelines, the court shall allocate an obligor’s financial child support responsibility from the obligor’s income among all children of the obligor for whom the obligor is legally responsible to provide support and is supporting, in a manner that gives equitable consideration as defined by the department’s child support guidelines, to the children for whom support is being set in the case before the court and to any other children for whom the obligor is legally responsible and is supporting. The court shall require that payments, made out of that allocation for all children of the obligor for whom the obligor is legally responsible and is supporting, be made upon such consideration. Guidelines promulgated by the department shall be consistent with the provisions of this subdivision (e)(4)(B).

(f) (1) Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state, and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed and notice of the action has been mailed to the last known address of the opposing parties. If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that accumulates on arrearages shall be considered child support. Computation of interest shall not be the responsibility of the clerk.

(2) In addition to the remedies provided in part 5 of this chapter, but not as an alternative to those provisions, if a parent is more than thirty (30) days in arrears, the clerk of the court may, upon written application of the obligee parent, a guardian or custodian of the children, or the department of human services or its contractors in Title IV-D support cases, issue a summons or, in the discretion of the court, an attachment for such parent, setting a bond of not less than two hundred fifty dollars ($250) or, in the discretion of the court, up to the amount of the arrears, for such other proceedings as may be held in the matter. In addition, the court may, at any time, require an obligor parent to give security by bond, with sufficient sureties approved by the court, or, alternatively, in the absence of the judge from the court, approved by the clerk of the court, for payment of past, present, and future support due under the order of support. If the obligor parent thereafter fails to appear or fails without good cause to comply with the order of support, such bonds may be forfeited and the proceeds from the bonds paid to the court clerk and applied to the order of support.

(3) Absent a court order to the contrary, if an arrearage for child support or fees due as court costs exists at the time an order for child support would otherwise terminate, the order of support, or any then existing income withholding arrangement, and all amounts ordered for payment of current support or arrears, including any arrears due for court costs, shall continue in effect in an amount equal to the then existing support order or income withholding arrangement, until the arrearage and costs due are satisfied, and the court may enforce all orders for such arrearages by contempt.

(4) The order of any court or administrative tribunal directing that an obligor pay a sum certain to reduce any support arrearage shall not preclude the use, by the department of human services or its contractors in the Title IV-D child support program, of any other administrative means of collecting the remaining balance of the outstanding arrearage, including, but not limited to, income tax refund intercepts, financial institution collections, enforcement of liens, or any other method authorized by law. The use of any additional administrative means of collection by the department or its contractors in the Title IV-D child support program is expressly authorized to reduce any portion, or all, of the outstanding balance of support as shown by the department’s records, and any order of the court or administrative tribunal to the contrary is without any effect whatsoever, except for such appeal as may lie from the implementation of the administrative procedure that is used to reduce the arrearage.

(5) (A) In enforcing any provision of child support, if an obligee, or the department or its contractor in Title IV-D cases, specifically prays for revocation of a license because an obligor is alleged to be in noncompliance with an order of support, or if the court determines on its own motion, or on motion of a party, that any individual party has failed to comply with a subpoena or a warrant in connection with the establishment or enforcement of an order of support, the court may find, specifically, in its order that the obligor is not in compliance with an order of support as defined by part 7 of this chapter, or it may find that an individual party has failed to comply with a subpoena or warrant in connection with the establishment or enforcement of an order of support, and may direct that any or all of the obligor’s or individual party’s licenses be subject to revocation, denial or suspension by the appropriate licensing authority, pursuant to part 7 of this chapter. The court shall direct the clerk to send a copy of that order to the department of human services to be sent by the department to each licensing authority specified in the order for processing and suspension, denial or revocation pursuant to § 36-5-706 and any other applicable provisions of part 7 of this chapter. Costs related to such order shall be taxed to the obligor or individual party.

(B) If the obligor whose license has been subject to the provisions of subdivision (f)(5)(A) complies with the order of support, or if the individual party complies with the subpoena or warrant, the court shall enter an order making such a finding, and the clerk shall send an order immediately to the department of human services to be transmitted to each licensing authority specified in the order, which shall then immediately issue, renew or reinstate the obligor’s or individual party’s license, in accordance with the provisions of § 36-5-707. Costs related to such order shall be taxed to the obligor or individual party, as the case may be, and shall be paid by the obligor or the individual party prior to sending the order to the department for transmission to the licensing authority.

(C) The department shall provide available information to the obligee, party or the court in actions under this subdivision (f)(5), concerning the name and address of the licensing authority or authorities of the obligor or individual party, in order to enable the enforcement of the provisions of this subdivision (f)(5). The obligee or individual party, as the case may be, seeking such information shall pay a fee, as established by the department for the provision of such service. These fees may be taxed as costs to the obligor whose license has been revoked pursuant to this subdivision (f)(5), or to the individual party who has failed to comply with the warrant or subpoena.

(D) If the licensing authority fails to take appropriate action pursuant to the orders of the court under this subdivision (f)(5), the party may seek a further order from the court to direct the licensing authority to take such action, and the party may seek any appropriate court sanctions against the licensing authority.

(E) For purposes of this subdivision (f)(5), “individual party” means a party to the support action who is a person, but does not include a governmental agency, or the contractor or agent of such governmental agency, that is enforcing an order of support. “Party” may include, where the context requires, an individual person, or it may include a governmental agency or contractor or agent of such governmental agency.

(g) (1) Upon application of either party, the court shall decree an increase or decrease of support when there is found to be a significant variance, as defined in the child support guidelines established by subsection (e), between the guidelines and the amount of support currently ordered, unless the variance has resulted from a previously court-ordered deviation from the guidelines and the circumstances that caused the deviation have not changed. Any support order subject to enforcement under Title IV-D may be modified in accordance with § 36-5-103(f).

(2) The necessity to provide for the child’s health care needs shall also be a basis for modification of the amount of the order, regardless of whether a modification in the amount of child support is necessary.

(3) The court shall not refuse to consider a modification of a prior order and decree as it relates to future payments of child support because the party is in arrears under that order and decree, unless the arrearage is a result of intentional action by the party.

(4) (A) Notwithstanding the provisions of subdivision (g)(4)(B) and § 36-5-103(f), for the purposes of this chapter, the birth or adoption of another child for whom an obligor is legally responsible to support and is supporting shall constitute a substantial and material change of circumstances for seeking a review of the existing order to determine if the addition of such child, and any credits applicable for the addition of such child under the department’s child support guidelines, would result in a significant variance under such guidelines. If the significant variance is demonstrated by the review, the amount of an existing child support order may be modified by the court.

(B) For purposes of this chapter, the significant variance established by the department of human services pursuant to the child support guidelines shall provide a lower threshold for modification of child support orders for persons whose adjusted gross incomes are within low income categories established by the department’s child support guidelines. The significant variance involving low income persons shall be established by rule of the department at no more than seven and one half percent (7 1/2 %) of the difference between the current child support order and the amount of the proposed child support order.

(5) (A) In Title IV-D child support cases that the department of human services is enforcing, the department shall provide a child support obligor notice ninety (90) days prior to the eighteenth birthday of a child or children for whom the obligor is paying child support, as such birthday is indicated by the department’s records.

(B) If the following conditions are met, then the obligor may seek termination of the order of support and may also request that the department, as required by federal law, assist in seeking termination of the order:

(i) The department’s records demonstrate that the child for whom an order of support in a Title IV-D child support case has been entered has reached eighteen (18) years of age and has graduated from high school, or that the class of which the child is a member when the child reached eighteen (18) years of age has graduated from high school, the obligor has otherwise provided the department with written documentation of such facts, or the obligor has provided the department with written documentation that a child for whom the obligor is required to pay support has died or has married;

(ii) No other special circumstances exist, including, but not limited to, the circumstances provided for in subsection (k) regarding disabled children, that require the obligation to continue;

(iii) The obligor does not owe arrearages to the obligee parent, any guardian or custodian of the child, the department of human services, any other agency of the state of Tennessee, or any other Title IV-D agency of any state;

(iv) The costs of court have been paid; and

(v) There are no other children for whom the obligor is required to pay child support.

(C) (i) If the conditions of subdivisions (g)(5)(B)(i)-(v) exist in the Title IV-D case, as shown by the department’s records, or such conditions exist based upon the written documentation provided by the obligor and verified by the department, then the department shall immediately temporarily suspend the order of support for the child who has reached majority. If the existing court order was the result of a deviation from the child support guidelines, the department shall immediately seek from the court termination of the support order for such child, and shall provide the obligee with notice of the filing of the petition to terminate such order.

(ii) If the existing order was not the result of a deviation from the child support guidelines, the department shall give notice to the obligee, and to the other obligor, of the temporary suspension of the order, based upon verification of the status of the case pursuant to subdivision (g)(5)(B), of its intent to permanently terminate the support order by an administrative order, which the department may issue for such purpose, and of the opportunity for a hearing upon the issue of permanent termination of the order.

(iii) If the obligee contests the temporary suspension of the order of support under the circumstances of subdivisions (g)(5)(B)(i)-(v) and prevails following entry of the court or administrative order, the obligor shall pay the support amounts and any other arrearages or court costs not paid as a result of the temporary suspension of the order. The administrative order shall be filed with the clerk of the court having jurisdiction of the case.

(D) (i) If the conditions of subdivisions (g)(5)(B)(i)-(iv) are met in the Title IV-D case, but there are other children for whom the obligor is still obligated to support, the department shall immediately conduct a review of the support order and shall seek the support order’s adjustment, if appropriate under the child support guidelines for such children. The obligor shall continue to make child support payments, in accordance with the existing order, until the court or department modifies the order pursuant to this subdivision (g)(5)(D).

(ii) If the existing court order was the result of a deviation from the child support guidelines, the department shall seek modification of the support order from the court, and shall provide the obligee and the obligor with notice of the filing of the petition to modify such order.

(iii) If the existing order was not the result of a deviation from the child support guidelines, and the department reviews the order and determines that the order should be modified pursuant to such guidelines, then the department shall notify the parties of the department’s intent to modify the support order by an administrative order, which the department may issue for such purpose, and shall notify the parties of the opportunity for a hearing on the issue of modification of the order.

(iv) The support order shall be modified as established by order of the court or the department, as required pursuant to the child support guidelines. If the modified payment amount is lower than the payment amount required prior to the modification, then the obligor shall be given credit for such amount against future payments of support for the remaining children under the order. If the modified payment amount is higher than the payment amount required prior to the modification, then the obligor shall pay the higher ordered amount from the date of entry of the order. The administrative order shall be filed with the clerk of the court having jurisdiction of the case.

(E) The department’s review and adjustment process, and the administrative hearing process outlined in this subdivision (g)(5), shall comply with any other due process requirements for notice to the obligor and obligee as may otherwise be required by this chapter.

(h) (1) The court may direct the acquisition or maintenance of health insurance covering each child of the marriage and may order either party to pay all, or each party to pay a pro rata share of, the health care costs not paid by insurance proceeds. In no event shall eligibility for or receipt of medicaid or TennCare-Medicaid by the custodial parent be considered to meet the need to provide for the child’s health care needs in the order, if reasonable and affordable health insurance is available.

(2) In any case in which the court enters an order of support enforced under Title IV-D of the Social Security Act, the court shall enter an order providing for health care coverage to be provided for the child or children.

(3) The provisions of § 36-5-501(a)(3) shall apply with respect to enrollment of a child in the noncustodial parent’s employer-based health care plan.

(i) The court may direct either or both parties to designate the children as beneficiaries under any existing policies insuring the life of either party, and maintenance of existing policies insuring the life of either party, or the purchase and maintenance of life insurance and designation of beneficiaries.

(j) Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties as to child support. In any such agreement, the parties must affirmatively acknowledge that no action by the parties shall be effective to reduce child support after the due date of each payment, and that they understand that court approval must be obtained before child support may be reduced, unless such payments are automatically reduced or terminated under the terms of the agreement.

(k) (1) Except as provided in subdivision (k)(2), the court may continue child support beyond a child’s minority for the benefit of a child who is handicapped or disabled, as defined by the Americans with Disabilities Act, until such child reaches twenty-one (21) years of age.

(2) Provided, that such age limitation shall not apply if such child is severely disabled and living under the care and supervision of a parent, and the court determines that it is in the child’s best interest to remain under such care and supervision and that the obligor is financially able to continue to pay child support. In such cases, the court may require the obligor to continue to pay child support for such period as it deems in the best interest of the child; provided, however, that, if the severely disabled child living with a parent was disabled prior to this child attaining eighteen (18) years of age and if the child remains severely disabled at the time of entry of a final decree of divorce or legal separation, then the court may order child support regardless of the age of the child at the time of entry of the decree.

(3) In so doing, the court may use the child support guidelines.

(l) (1) The court may, in its discretion, at any time pending the suit, upon motion and after notice and hearing, make any order that may be proper to compel a spouse to pay any sums necessary to enable the other spouse to prosecute or defend the suit and to provide for the custody and support of the minor children of the parties during the pendency of the suit, and to make other orders as it deems appropriate. In making any order under this subsection (l), the court shall consider the financial needs of each spouse and the children, and the financial ability of each spouse to meet those needs and to prosecute or defend the suit.

(2) In any Title IV-D case, if the court grants relief, whether in whole or in part, to the department of human services or the department’s Title IV-D contractor, or to any applicant for Title IV-D child support services, the court shall not tax any court costs against the department, the Title IV-D contractor or any applicant for child support services. The court shall not award attorney fees against the department, the Title IV-D contractor or any applicant for child support services, unless there is a clearly established violation of Rule 11 of the Tennessee Rules of Civil Procedure or for other contemptuous or other sanctionable conduct. The provisions of this subdivision (l)(2) are not intended to limit the discretion of the courts to tax costs to the individual parties on non-Title IV-D issues, such as custody or visitation.

(m) No provision, finding of fact or conclusion of law in a final decree of divorce or annulment or other declaration of invalidity of a marriage that provides that the husband is not the father of a child born to the wife during the marriage or within three hundred (300) days of the entry of the final decree, or that names another person as the father of such child, shall be given preclusive effect, unless scientific tests to determine parentage are first performed and the results of the test that exclude the husband from parentage of the child or children, or that establish paternity in another person, are admitted into evidence. The results of such parentage testing shall only be admitted into evidence in accordance with the procedures established in § 24-7-112.

36-5-501. Income withholding.

(a) (1) For any order of child support issued, modified, or enforced on or after July 1, 1994, the court shall order an immediate assignment of the obligor’s income, including, but not necessarily limited to: wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, profit sharing, interest, annuities, and other income due or to become due to the obligor. The order of assignment shall issue regardless of whether support payments are in arrears on the effective date of the order. The court’s order, shall include an amount sufficient to satisfy an accumulated arrearage, if any, within a reasonable time. The order may also include an amount to pay any medical expenses that the obligor owing the support is obligated or ordered to pay. Withholding shall not exceed fifty percent (50%) of the employee’s income after FICA, withholding taxes, and a health insurance premium that covers the child, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court or the department, if appropriate. In the event the court does not order an immediate assignment pursuant to subdivision (a)(2), every order shall be enforceable by income assignment as provided in this chapter.

(2) (A) Income assignment under this subsection (a) shall not be required:

(i) If, in cases involving the modification of support orders, upon proof by one party, there is a written finding of fact in the order of the court that there is good cause not to require immediate income assignment and the proof shows that the obligor has made timely payment of previously ordered support. “Good cause” shall only be established upon proof that the immediate income assignment would not be in the best interests of the child. The court shall, in its order, state specifically why such assignment will not be in the child’s best interests; or

(ii) If there is a written agreement by both parties that provides for alternative arrangements. Such agreement must be reviewed by the court and entered in the record.

(B) If the case is being enforced under Title IV-D of the Social Security Act and is subject to an assignment of support due to receipt of public assistance, the department of human services or its contractor must be notified of the request for exemption under subdivisions (a)(2)(A)(i) and (ii) and may present evidence for purposes of subdivision (a)(2)(A)(i), or must agree in order to permit exemption from income withholding as otherwise permitted pursuant to subdivision (a)(2)(A)(ii).

(3) (A) Unless a court or administrative order stipulates that alternative health care coverage to employer-based coverage is to be provided for a child subject to a Title IV-D child support order, in any case in which a noncustodial parent is required by a court or administrative order to provide health care coverage for such a child, and the employer of the noncustodial parent is known to the department, the department shall use any federally-required medical support notices to provide notice to the employer of the requirement for employer-based health care coverage for such child through the child’s parent who has been ordered to provide health care coverage for such child. The department shall send the federal medical support notice to any employer of a noncustodial parent subject to such an order within two (2) business days of the entry of such employee who is an obligor in a Title IV-D case into the directory of new hires under part 11 of this chapter.

(B) Within twenty (20) business days after the date of the medical support notice, the employer of a noncustodial parent subject to an order for health care coverage for the child shall transfer the notice to the appropriate plan providing such health care coverage for which the child is eligible. The employer shall withhold from the noncustodial parent’s compensation any employee contributions necessary for coverage of the child and shall send any amount withheld directly to the health care plan to provide such health care coverage for the child. If the employee contests the withholding of such employee contributions, the employer shall initiate withholding until the contest is resolved. The employee/obligor shall have the right to contest the withholding order issued pursuant to subdivision (a)(3) based upon a mistake of fact according to the provisions for appeal provided pursuant to part 10 of this chapter.

(C) (i) An employer shall notify the department promptly whenever the noncustodial parent’s employment is terminated.

(ii) The department shall promptly notify the employer when there is no longer a current order for medical support in effect for which the department is responsible.

(D) The liability of the noncustodial parent for employee contributions to the health care plan necessary to enroll the child in the plan shall be subject to all available enforcement mechanisms under this title or any other provision of law.

(E) Upon receipt of the notice required by this subdivision (a)(3) that appears regular on its face and that has been appropriately completed, the notice is deemed a qualified medical child support order under 29 U.S.C. § 1169(a)(5)(C)(i). The health insurance plan administrator of a participant under a group health plan who is the noncustodial parent of the child for whom the notice was received pursuant to this subdivision (a)(3), shall, within forty (40) business days:

(i) Notify the state Title IV-D agency of any state or territory that issued the notice with respect to whether coverage is available for such child under the terms of the plan, and, if so, whether such child is covered under the plan and either the effective date of the coverage or, if necessary, any steps to be taken by the custodial parent, or official of a state or political subdivision thereof substituted for the name of the child pursuant to 29 U.S.C. § 1169(a)(3)(A), to effectuate coverage. The department or its contractors, in consultation with the custodial parent, must promptly select from available plan options when the plan administrator reports that there is more than one (1) option available under the employer’s plan; provided, however, if such response is not made to the plan administrator within twenty (20) business days, and if the plan has a default option for coverage, the plan administrator shall enroll the child in that default option. If there is no default option, the plan administrator may call the office of the department or contractor that sent the notice and seek direction as to the child’s enrollment in the available plans;

(ii) Provide the custodial parent or such substituted official a description of the coverage available and any forms or documents necessary to effectuate such coverage and permit the custodial parent or substituted official to file claims;

(iii) Send the explanation of benefit statements to the custodial parent, substituted official and the employee;

(iv) Send the reimbursement to the custodial parent, legal guardian or substituted official for expenses paid by the custodial parent, legal guardian or substituted official for which the child may be eligible under the plan;

(v) Nothing in subdivision (a)(3)(E) shall be construed as requiring a group health plan, upon receipt of a medical support notice, to provide benefits under the plan, or eligibility for benefits, under the terms of the plan in addition to, or different from, those provided immediately before receipt of such notice, except as may otherwise be required by the provisions of title 56, chapter 7, part 23.

(b) (1) (A) In all cases in which the court has ordered immediate income assignment, the clerk of the court, or the department of human services or its contractor in Title IV-D cases, shall immediately issue an income assignment to an employer once the employer of an obligor has been identified.

(B) In all cases in which an immediate assignment of income has not been previously ordered, or in which an obligor who is ordered to pay child support in which an immediate income assignment was not required pursuant to subdivision (a)(2), and when the obligor becomes in arrears as defined in this subdivision (b)(1) as reflected in the records of the clerk of court, if the support is paid through the clerk’s office or in the records of the department of human services, then the clerk of the court, or the department or its contractor in Title IV-D child support cases shall, without the necessity of an affidavit of the obligee, issue an order of income assignment to the employer of the obligor, if known, or at such time as the employer’s name and whereabouts are made known to the clerk or the department or its contractor. No court order expressly authorizing an income assignment shall be required under this subdivision (b)(1)(B).

(C) The order of assignment issued by the department or its contractor pursuant to subdivisions (b)(1)(A) and (B) shall include an amount sufficient to satisfy an accumulated arrearage within a reasonable time without further order of the court. The order shall also include an amount to pay any medical expenses that the obligor owing the support is obligated or ordered to pay. Withholding shall not exceed fifty percent (50%) of the employee’s income after FICA, withholding taxes, and a health insurance premium that covers the child, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court, if appropriate.

(D) In all other cases in which the child support payments were ordered to be paid directly to a parent or guardian or custodian of the child or children, and the child support payments are in arrears as defined in this subdivision (b)(1), the parent, guardian or custodian may, by affidavit filed with the clerk, or, the department or its contractor in Title IV-D child support cases, request that an order of income assignment be sent by the clerk of the court, or by the department, to the employer, if known, or at such time as the employer’s name and whereabouts are made known to the clerk, the department or its contractor. No court order expressly authorizing an income assignment shall be required under this subdivision (b)(1).

(E) The order of assignment issued by the clerk or the department or its contractor pursuant to subdivision (b)(1)(D) shall include an amount sufficient to satisfy an accumulated arrearage within a reasonable time. The order may also include an amount to pay any medical expenses that the obligor owing the support is obligated or ordered to pay. Withholding shall not exceed fifty percent (50%) of the employee’s income after FICA, withholding taxes, and a health insurance premium that covers the child, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court, if appropriate.

(F) An income assignment pursuant to this subsection (b) shall be mandatory even if subsequent to the issuance of the order of assignment the obligor pays the amount of arrearage in part or in full as long as current support or arrearages are still owed.

(G) For purposes of this part, “arrears” means any occasion on which the full amount of ordered support ordered for or on behalf of a minor child, or for a spouse or former spouse of the obligor with whom the child is living to the extent the spousal support would be included for the purposes of 42 U.S.C. § 654a(e)(4), is not paid by the due date for arrears as defined in § 36-5-101(f)(1) unless an income assignment is in effect and the payor of income is paying pursuant to subsection (g).

(H) Clerks of court are authorized to issue an order of income assignment to the employer of the obligor and to institute the process to assign income when the obligor fails to pay court costs, but shall not have priority over the income assignment for child or spousal support.

(2) When an order of income assignment has been issued pursuant to subdivision (b)(1)(B) or (b)(1)(D), the clerk, or the department in Title IV-D cases, shall send a notice to the obligor within two (2) business days of the issuance of the order of income assignment being sent to the obligor’s employer. If the assignment is made pursuant to subdivisions (b)(1)(B) or (b)(1)(D), the notice must be sent to the address of the obligor, if known, or to the obligor at the address of the employer of the obligor if the obligor’s address is unknown.

(3) In addition to any other required or pertinent information, all notices of assignment sent to the obligor who resides in this state pursuant to this section shall include:

(A) The amount of money owed by the obligor, including both current support and arrears;

(B) The amount of income withholding, except where otherwise ordered by the court, that shall be applied for current support, the amount that shall be applied for arrearages and the amount to be applied for alimony. The amount withheld shall be an amount reasonably sufficient to satisfy an accumulated arrearage within a reasonable time;

(C) Notice that the obligor has the right to a hearing before the court, or, in Title IV-D cases, an administrative review by the department of human services. The administrative hearing shall be conducted pursuant to the provisions of part 10 of this chapter; and

(D) Notice that the obligor must request the hearing by notifying the clerk, or the department in Title IV-D cases, within fifteen (15) days of the date of the notice, or the date of personal service, if used.

(4) Orders of income assignment issued by the department of human services or its contractors shall be filed with the court.

(5) (A) In all Title IV-D child or spousal support cases in which payment of such support is to be made by income assignment, and in all cases where payments made by income assignment based upon support orders entered on or after January 1, 1994, that are not Title IV-D support cases but must be made to the central collection and disbursement unit as provided by § 36-5-116, the court, the clerk of court, or the department or its contractors shall only order that the support payments be made by income assignment to the central collection and disbursement unit pursuant to § 36-5-116. No agreement by the parties in a parenting plan, either temporary or permanent, entered pursuant to the provisions of chapter 6, part 4 of this title, or any other agreement of the parties or order of the court, except as may otherwise be allowed by § 36-5-501(a)(2)(B), shall alter the requirements for payment by income assignment to the central collection and disbursement unit as required by § 36-5-116, and any provision of any parenting plan, agreement or court order providing for any other payment procedure contrary to the requirements of § 36-5-116, whether or not approved by the court, except as may otherwise be allowed by § 36-5-501(a)(2)(B), shall be void and of no effect. No credit shall be given by the court, the court clerk or the department of human services for child or spousal support payments required by the support order that are made in contravention of such requirements; provided, however, the department may make any necessary adjustments to the balances owed to account for changes in the Title IV-D or central collection and disbursement status of the support case.

(B) The payment of child support through the centralized collection and disbursement unit established pursuant to § 36-5-116 does not establish the case as a Title IV-D case unless the case otherwise meets the criteria of § 71-3-124 for a case, in which the department of human services will provide child support services to an assignor of support rights or to any person who has otherwise applied for such services.

(6) (A) If the obligor is self-employed, or if the obligor is a partner, member, owner or officer of a partnership, limited liability company, corporation or other association or business entity from which the obligor receives compensation in the form of wages, salary, commissions, bonuses or otherwise, then the court may order the obligor, or the business entity of which the obligor is a partner, member, owner or officer, if applicable, to establish a bank account for the sole purpose of complying with the order issued pursuant to subsection (a). The order issued pursuant to subsection (a) shall specify the amount of the obligor’s compensation that is to be deposited into the account and the frequency by which the deposits are to be made, whether weekly, biweekly or monthly. Within ten (10) days of the issuance of the order pursuant to subsection (a), the obligor or business entity shall provide the department with written authorization for the department’s central collection and disbursement unit to receive from the account, by automatic bank withdrawal, the amount ordered by the court to be deposited into the account. Failure to either deposit the required amount into the account or to authorize automatic withdrawal of the required amount by the department’s central collection and disbursement unit is failure to comply with a child support order, which shall be punishable as civil contempt.

(B) As used in subdivision (b)(6)(A), “self-employed” means earning one’s livelihood directly from one’s own business, trade or profession rather than as a specified salary or wages from an employer.

(c) (1) In the event the obligor requests a hearing in cases not being enforced pursuant to Title IV-D regarding the withholding as provided in subdivisions (b)(1)(B) within fifteen (15) days of the date of the notice, or the date of personal service, if used, the clerk shall promptly docket the case with the magistrate or court as provided by part 4 of this chapter, shall give notice to all parties, and shall take any other action as is necessary to ensure that the time limits provided in subsection (d) are met.

(2) If the withholding was issued by the department or its contractor in Title IV-D cases and the obligor requests an administrative hearing as permitted by part 10 of this chapter, the department shall promptly schedule the case for a hearing, shall give notice to all parties, and shall take any other action as is necessary to ensure that the time limits provided in subsection (d) are met.

(d) In all cases in which the obligor requests a hearing or administrative review, the magistrate or court, or the department, shall conduct a hearing and make a determination, and the clerk or department shall notify the obligor and the employer of the decision within forty-five (45) days of the date of the order provided in subdivision (b)(1).

(e) The obligor may contest the results of the department’s administrative review by requesting a judicial review as provided in part 10 of this chapter.

(f) The amount to be withheld under the income assignment withheld for support may not be in excess of fifty percent (50%) of the income due after FICA, withholding taxes, and a health insurance premium that covers the child are deducted.

(g) (1) The assignment or any subsequent modification is binding upon any employer, person or corporation, including successive employers, fourteen (14) days after mailing or other transmission or personal service of the order from the clerk of the court, or from the department by administrative order of income assignment, pursuant to this section. The employer, person or corporation has a fiduciary duty to send amounts withheld for payment of a child support obligation to the clerk or the department’s central collection and disbursement unit as directed in the income assignment order, or, if based upon a direct withholding from another state pursuant to the Uniform Interstate Family Support Act, compiled in parts 20-29 of this chapter, to the other state as directed by that order of assignment. The amount shall be sent by the employer, person or corporation within (7) days of the date the person obligated to pay support is paid, the date the person is to be paid or the date the amount due such person is to be credited. The order is binding until further notice.

(2) The employer, person, corporation or institution shall provide notice to the clerk, the department, or the entity in the other state to which the withheld income was to be sent of termination of employment or income payments to the employee. Any employer, person, corporation or institution that files for bankruptcy or ceases to operate as a business shall provide notice to the clerk or the department of the bankruptcy or cessation of business upon filing bankruptcy or at least ten (10) days prior to ceasing to operate as a business. Any notice provided pursuant to this subsection (g) shall include the names of all the affected employees subject to an income assignment, the last known address of each of those employees, and the name and address of the new employer or source of income of each of those employees, if known.

(3) Failure of any employer, person, corporation or institution to pay income withheld to the clerk or clerks, to the department, its contractor, or other entity, or Title IV-D child support agency in any other state that issued the order, as may be directed by the income assignment order, is a breach of a fiduciary duty to the obligor. Any action alleging breach of fiduciary duties by an employer, person, corporation or institution pursuant to this section shall be brought within one (1) year from the date of the breach or violation; provided, that, in the event the alleged breach or violation is not discovered or reasonably should have been discovered within the one-year period, the period of limitation shall be one (1) year from the date the alleged breach or violation was discovered or reasonably should have been discovered. In no event shall an action be brought more than three (3) years after the date on which the breach or violation occurred, except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after the alleged breach or violation is, or should have been, discovered.

(h) For any order of alimony in solido, in futuro or rehabilitative issued, modified or enforced on or after April 24, 2002, the court may order immediate assignment of the obligor’s income, including, but not necessarily limited to: wages, salary, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, profit sharing, interest, annuities and other income due or to become due to the obligor. The order of assignment shall issue regardless of whether support payments are in arrears on the effective date of the order. The court’s order may include an amount sufficient to satisfy an accumulative arrearage, if any, within a reasonable time. Withholding shall not exceed fifty percent (50%) of the employee’s income after FICA, withholding taxes, and a health insurance premium that covers the child, if any, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court, if appropriate.

(i) It is unlawful for an employer to use the assignment as a basis for discharge or any disciplinary action against the employee. Compliance by an employer, other person, institution or corporation with the order shall operate as a discharge of the liability of such employer, other person, institution or corporation to the affected individual as to that portion of the income so affected. An employer shall be subject to a fine for a Class C misdemeanor if the income assignment is used as a basis to refuse to employ a person or to discharge the obligor/employee or for any disciplinary action against the obligor/employee or if the employer fails to withhold from the obligor’s income or to pay such amounts to the clerk or to the department as may be directed by the withholding order.

(j) (1) An assignment under this section shall take priority over any other assignment or garnishment of wages, as described in title 26, chapter 2, or salary, commissions or other income, except those deductions made mandatory by law or hereafter made mandatory.

(2) (A) If the employer, person, corporation or institution receives more than one (1) order of income assignment against an individual, the employer, person, corporation or institution must comply by giving first priority to all orders for amounts due for current support due a child, second to all orders for amounts due for arrearages due a child, third to all orders for amounts due for current support due a spouse, and fourth to all orders for amounts due for arrearages due a spouse, and must honor all withholdings to the extent the total amount withheld from wages does not exceed fifty percent (50%) of the employee’s wages after FICA, withholding taxes, and a health insurance premium that covers the child are deducted.

(B) Any employer, person or entity receiving an order for income withholding from another state or territory shall apply the income withholding law of the state of the obligor’s principal place of employment in determining:

(i) The employer’s fee for processing an income withholding order;

(ii) The maximum amount permitted to be withheld from the obligor’s income;

(iii) The time periods within which the employer must implement the income withholding order and forward the child support payment;

(iv) The priorities for withholding and allocating income withheld for multiple child support obligees; and

(v) Any withholding terms and conditions not specified in the order.

(C) The “principal place of employment” for an obligor who is employed in this state and for whom an income withholding order has been received in this state from another state or territory shall be deemed to be this state, and the provisions set forth in the requirements of this section regarding income withholding shall apply to the determinations made in subdivisions (j)(2)(B)(i)-(v).

(3) (A) If any employer, person, or other entity receives any income assignment for current support against an individual that would cause the deduction from any two (2) or more assignments for current support to exceed fifty percent (50%) of the individual’s income after FICA, withholding taxes, and a health insurance premium that covers the child are deducted, then the allocation of all current support ordered withheld by all income assignments they receive against that individual shall be determined by the employer, person, or entity as follows:

(i) The employer, person, or other entity shall determine the total dollar amount of the assignments for current support it has received involving the obligor to whom it owes any wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, profit sharing, interest, annuities, and other income due or to become due to the obligor;

(ii) Each individual assignment shall then be calculated as a percentage of the total obtained pursuant to subdivision (j)(3)(A)(i);

(iii) The employer, person, or entity shall then allocate the available income of the obligor, subject to the limits described in this subsection (j), based on the percentage computation pursuant to subdivision (j)(3)(A)(ii) and shall, as directed by the order of income assignment, pay the amounts withheld from the obligor’s income, to the clerk or clerks, or to the department, its contractor, or other entity or Title IV-D child support agency in any other state that issued such order.

(B) In the event all current support obligations are met from the assignments and support arrearages exist in more than one (1) case and there is not sufficient income to pay all ordered support arrearage, then the support arrearages shall be allocated on the same basis as set forth in subdivision (j)(3)(A).

(C) The obligor shall be responsible for seeking any modifications to the existing orders for support.

(4) An employer, person, corporation or institution may make one (1) payment to the clerk of the court, the department, its contractor or other entity in another state so long as the employer separately identifies the portion of the single payment attributable to each individual obligor parent, and, if amounts are included that represent withholdings for more than one (1) pay period, so long as the amounts representing each pay period are separately identified.

(k) (1) “Employer, person, corporation or institution,” as used in this section, includes the federal government, the state and any political subdivision thereof and any other business entity that has in its control funds due to be paid to a person who is obligated to pay child support.

(2) “Spousal support” for purposes of enforcement of child support by the department of human services under the Title IV-D child support program means a legally enforceable obligation assessed against an individual for the support of a spouse or former spouse who is living with a child or children who are receiving child support services from the department and for whom the individual also owes support. Income assignments pursuant to this part that are enforced as part of the Title IV-D services provided by the department shall apply to spousal support obligations as defined in this subdivision (k)(2).

(l) Any employer, person, corporation or institution that is ordered to pay an income assignment on behalf of an individual may charge the obligor parent an amount of up to five percent (5%) not to exceed five dollars ($5.00) per month for such service.

(m) The notices and orders required to be issued pursuant to this section shall be transmitted to any party or person by any method chosen by the court or the department, including, but not limited to: certified mail, return receipt requested, regular mail, electronic mail, facsimile transmission, or by personal service, and may be generated by computer or on paper. The notices and orders required by this section need not be entered in the minutes of the court. If a notice or order is returned or otherwise not deliverable, then service shall be had by any alternative method chosen by the court or the department, as listed in this subsection (m). Before taking action against an employer or other payor for failure to comply with this part, the court or department shall ensure that service of the notice or order was made by certified mail or by personal service. Electronically reproduced signatures shall be effective to issue any orders or notices pursuant to this section.

(n) There shall be no litigation tax imposed on proceedings pursuant to this part.

(o) (1) The department of human services shall have authority to establish mandatory rules, forms and any necessary standards and procedures to implement income assignments, which shall be used by all the courts and by the department pursuant to this part. The department of human services may implement the use of such forms at any time after July 1, 1997, by emergency rule following approval by the attorney general and reporter. Permanent rules implementing the forms shall be promulgated pursuant to the rulemaking provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

(2) Prior to the filing of a notice of rulemaking for permanent rules pursuant to this subsection (o), the rules shall be sent by the department for review by an advisory group composed of two (2) representatives of the state court clerks’ conference appointed by the president of the state court clerks’ conference; two (2) representatives of the judges of courts that have child support responsibilities, one (1) of whom will be appointed by the chief justice of the supreme court and one (1) of whom will be appointed by the president of the council of juvenile and family court judges; a representative of the administrative office of the courts; and two (2) representatives of the department of human services designated by the commissioner. Nothing contained herein shall be construed to prevent the department from filing any notice of rulemaking prior to or at the time the proposed permanent rules are sent to the advisory group where the department determines that immediate filing of the notice without prior review by the advisory group is necessary to meet any requirements relative to the potential expiration of emergency rules or to comply with any federal statutory or regulatory requirements or any federal policy directives.

(p) If any employer, person, corporation or institution fails or refuses to comply with the requirements of this section, then that employer, person, corporation or institution is liable for any amounts up to the accumulated amount that should have been withheld. In addition, that employer, person, corporation or institution may be subject to a civil penalty to be assessed and distributed pursuant to the requirements of this subsection (p).

(1) Upon the first failure to comply with an order of income assignment, that employer, person, corporation or institution may be subject to a civil penalty of one hundred dollars ($100) per obligor for whom an order of income assignment was received, two hundred dollars ($200) per obligor for the second failure to comply and five hundred dollars ($500) per obligor for each occurrence thereafter.

(2) The civil penalty, when assessed and collected by the department of human services, shall be prorated among the children for whom the income assignment order was issued and with which the employer, person, corporation or institution failed to comply. If there are multiple income assignments for an obligor, the prorated amounts of the civil penalty shall be distributed to the children in the proportion that each order for which the income assignment was issued is to the total amount of all income assignments with which the employer, person, corporation or institution failed to comply.

(3) The civil penalty amount received by the children shall not reduce in any manner the amount of support owed by the obligor parent, but shall be received in addition to all ordered child support.

(q) (1) Penalties authorized by this section shall be assessed by the commissioner of human services after written notice to the employer, person, corporation or institution. The notice shall provide fifteen (15) days from the mailing date of the notice for the employer, person, corporation or institution to file a written request to the department for appeal of the civil penalty. If an appeal is timely filed with the department, the department shall set an administrative hearing on the issue of the assessment pursuant to the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to contested case hearings. Failure to timely appeal the assessment of the civil penalty shall be final and conclusive of the correctness of the assessment.

(2) Any amount found owing shall be due and payable not later than fifteen (15) days after the mailing date of the determination. Failure to pay an assessment shall result in a lien against the real or personal property of the employer, person, corporation or institution in favor of the department. If an assessment is not paid when it becomes final, the department may collect the amount of the civil penalty by any available administrative enforcement procedures or by court action. The non-prevailing party shall be liable for all court costs and litigation taxes of the proceedings and shall be liable to the department for the cost of any private, contract or government attorney representing the state and for the time of any of its Title IV-D or contractor staff utilized in litigating the assessment.

(3) Any appeal of the action of the commissioner pursuant to this section shall be made in conformity with § 36-5-1003.
36-5-701. Part definitions.

As used in this part, unless the context otherwise requires:

(1) “Arrears” means any child support or spousal support associated with a child support order owed under a court or administrative order that is delinquent pursuant to § 36-5-501(b)(1), or any interest owed on those arrears;

(2) “Commissioner” means the commissioner of human services;

(3) “Department” means the department of human services;

(4) “License” means a license, certification, registration, permit, approval or other similar document issued to an individual evidencing admission to or granting authority to engage in a profession, trade, occupation, business, or industry, to hunt or fish, or to operate any motor vehicle or other conveyance, but does not include a license to practice law unless the supreme court establishes guidelines pursuant to § 36-5-713 making the provisions of this part applicable to such license;

(5) “Licensee” means any individual holding a license, certification, registration, permit, approval, or other similar document evidencing admission to, or granting authority to engage in a profession, trade, occupation, business, or industry, to hunt or fish, or to operate any motor vehicle or other conveyance, but “licensee” does not include an attorney only with respect to the attorney’s license to practice law unless the supreme court establishes guidelines pursuant to § 36-5-713 making the provisions of this part applicable to such license;

(6) “Licensing authority” means the board, commission, or agency, including the department of safety, that has been established by statute or state regulation to oversee the issuance and regulation of any license. Excluded from this definition is the supreme court, unless the supreme court acts in accordance with § 36-5-713, and any licensing authority established solely by the action and authority of a county or municipal government;

(7) “Not in compliance with an order of support” means that the obligor is five hundred dollars ($500) or more in arrears and the arrears are ninety (90) days or more past due;

(8) “Obligee” means any individual to whom a duty of support is owed or any state or political subdivision to whom such duty has been assigned or that is collecting support on behalf of an obligee;

(9) “Obligor” means any individual owing a duty of support; and

(10) “Order of support” means any judgment or order for the support of dependent children issued by any court of this state or another state, including an order in a final decree of divorce, or any order issued in accordance with an administrative procedure established by state law in this or another state that affords substantial due process and is subject to judicial review.
36-5-706. Denial, suspension or revocation of license — Refusal to reinstate or reissue — Notice.

(a) Notwithstanding any other law, rule or regulation to the contrary, the certification from the department under § 36-5-705 shall be a basis for the denial, suspension or revocation of a license, or for refusal to issue or reinstate a license by a licensing authority.

(b) The licensing authority shall notify, without undue delay, by regular mail, an obligor certified from the department under § 36-5-705, that the obligor’s application for the issuance, renewal or reinstatement of a license has been denied or that the obligor’s current license has been suspended or revoked because the obligor’s name has been certified by the department as an obligor who is not in compliance with an order of support.

(c) A notice of suspension must specify the reason and statutory grounds for the suspension and the effective date of the suspension and may include any other notices prescribed by the licensing authority. The notice must also inform the individual that in order to apply for issuance, renewal or reinstatement of the license, the individual must obtain a release from the department of human services in accordance with § 36-5-707.

(d) A notice to the obligor by the licensing authority to revoke, deny, suspend, or refuse to renew or reinstate a license after receipt of the notice of noncompliance from the department shall not be appealable under title 4, chapter 5, part 3 of the Uniform Administrative Procedures Act.
36-5-901. Liens for child support arrearages.

(a) (1) In any case of child or spousal support enforced by the department of human services or its contractors under Title IV-D of the Social Security Act in which overdue support is owed by an obligor who resides or owns property in this state, a lien shall arise by operation of law against all real and personal property, tangible or intangible, then owned or subsequently acquired by the obligor against whom the lien arises for the amounts of overdue support owed or the amount of penalties, costs or fees as provided in this chapter. The personal or real property, tangible or intangible, of the obligor that is subjected to the lien required by this part shall include all existing property at the time of the lien’s perfection, or acquired thereafter, even if a prior order for overdue support or arrears only specifies a certain amount of overdue support or arrears that was owed by the obligor at the time of such order.

(2) “Overdue support” is defined, for purposes of this part, as any occasion on which the full amount of ordered support for or on behalf of a minor child, or for a spouse or former spouse of the obligor with whom the child is living to the extent spousal support would be included for the purposes of 42 U.S.C. § 654(4), is not paid by the due date for arrears as defined in § 36-5-101(f)(1) unless an income assignment is in effect and the payer of income is paying pursuant to § 36-5-101(g). “Overdue support” shall include all amounts of support that are in arrears as defined in § 36-5-101(f)(1) and that remain unpaid by the obligor at the time the lien is perfected or that become due as arrears subsequent to the perfection of the lien.

(b) (1) (A) The commissioner may cause a notice of such lien on real property or upon any personal property to be recorded or filed, as appropriate in the appropriate place for the filing of a judgment lien or security interest in the property. This notice may be filed by automated means where feasible. The department shall not be required to pay the fee for filing the notice of lien at the time the notice is filed, but shall be given credit and billed once each month for the notices that it files pursuant to this subsection (b).

(B) In addition to the notice perfected pursuant to subdivision (b)(1)(A), a notice of lien may be sent by any appropriate means, including by any automated means, by the commissioner or any authorized representative of the department, to any person or entity that holds or that may hold any assets payable or due to be paid or transferred to an obligor of overdue support to notify the person or entity of the existence of a lien for overdue support. The receipt of such notice by that person or entity shall be adequate notice of the department’s lien upon the obligor’s assets of any kind that are held by the person or entity or that may come into that person’s or entity’s possession or control. Subject to the priorities of subsections (c) and (d), or the subordination of these liens to orders or judgments pursuant to § 36-5-905(c)(1)(A) and (c)(1)(B), and subject to any exemptions allowed by § 36-5-906, payment or transfer to the obligor or other persons or entities of the funds, property, or other assets of any kind that are encumbered by the lien subsequent to the receipt of such notice, shall make the person or entity liable to the department to the extent of the overdue support, up to the value of the transferred assets, in an action in the circuit or chancery court of the county in which the order of support is being enforced.

(2) Upon request, the department shall disclose the specific amount of liability at a given date to any interested party.

(3) (A) The department may cause a notice of lien to be filed or recorded and to be effective in any county in this state against all real or personal property of the obligor by provision by the state of Tennessee of a computer terminal arrangement in the office of the register of deeds or other state or local agency where the information regarding the existence, amount and date of the lien or security interest involving an obligor is made available to anyone who may be researching a title to real property or who may be seeking the status of any security interests or liens affecting any real or personal property held by an obligor. The cost for provision of the computer terminal arrangement, if used pursuant to this subdivision (b)(3)(A), shall be paid by the department of human services.

(B) In the alternative, the department may, upon agreement by the secretary of state, develop a central site for recordation of all notices of liens on all property, real or personal, that would be subject to the lien provisions of this part and the department and the secretary of state shall have authority to promulgate any rules necessary pursuant to the provisions of the Uniform Administrative Procedures Act compiled in title 4, chapter 5, to implement such central recordation site.

(C) In addition, or in conjunction with or as an alternative to the methods described in subdivision (b)(3)(A) or (b)(3)(B), the department may cause the filing or recordation of liens against all real or personal property of the obligor by placing such notice on a site accessible on the internet. If the methods described in subdivision (b)(3)(A) or (b)(3)(B) are used, and if the internet process authorized pursuant to this subdivision (b)(3)(C) is also made available, the dates shown on the department’s computer record and displayed in the appropriate office of recordation as provided in subdivision (b)(3), (b)(3)(A) or (b)(3)(B) and those displayed on the internet site shall be the same.

(D) The date noted in the department’s computer record and that is displayed in the appropriate office of recordation as provided in subdivision (b)(3)(A) or (b)(3)(B), or that is displayed on the internet site as provided in subdivision (b)(3)(C), will serve for purposes of perfection as the recording or filing date of the lien. The recording or filing provided by this subdivision (b)(3) shall serve as notice to anyone who may be researching a title to real property or who may be seeking the status of any security interests or liens affecting any real or personal property held by an obligor and shall become the date of recordation of the notice of lien for all purposes of this part.

(E) If any of the systems or procedures described in this subdivision (b)(3) is provided by the department, the automated lien shall be effective for all purposes to give notice to persons who may be affected by the existence of such lien in the same manner as the recordation of notice in the lien book maintained by the register of deeds or in the records of any state or local agency maintaining such records.

(F) Prior to the implementation of the provisions of this subdivision (b)(3), the department shall promulgate rules establishing procedures for the use of the automated system and shall, in addition to the other requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for notice, provide specific notice to the state clerks of court conference, registers of deeds, and the Tennessee Bar Association.

(4) Nothing herein shall require the department to file a notice of lien for the seizure of an obligor’s assets held by a state or local agency, by a court or administrative tribunal, by a lottery, by a financial institution or by a public or private retirement fund pursuant to § 36-5-904(1)-(3) or to obtain any income withholding from any employer or other payor of income as otherwise permitted under part 5 of this chapter.

(c) The lien of the department for child support arrearages shall be superior to all liens and security interests created under Tennessee law except:

(1) County and municipal ad valorem taxes and special assessments upon real estate by county and municipal governments;

(2) Deeds of trust that are recorded prior to the recordation of notice of the department’s lien;

(3) Security interests created pursuant to Article 9 of the Uniform Commercial Code, compiled in title 47, chapter 9, that require filing for perfection and that are properly filed prior to recordation of the notice of the department’s lien;

(4) Security interests perfected under the Uniform Commercial Code without filing, as provided in title 47, chapter 9, that are properly perfected prior to recordation of the notice of the department’s lien;

(5) The lien or security interest of a financial institution against an obligor’s interest in a deposit account at that institution for any indebtedness to the institution, including but not limited to, that institution’s security interest in accounts pledged for loans, its rights under the Uniform Commercial Code or by contract to charge back uncollected deposits, revoke settlements or take other action against the account, its right to recover overdrafts and fees, and its right of offset for mature indebtedness;

(6) Other security interests in deposit accounts at a financial institution when such interests are reflected in the records of that financial institution prior to the receipt of an administrative order of seizure;

(7) Other liens recorded prior to the recordation of the department’s lien, or concerning which a judicial proceeding was initiated prior to recordation of the department’s lien;

(8) Vendors’ liens on real estate provided for in title 66, chapter 10 that are recorded prior to the recordation of notice of the department’s lien; and

(9) The tax liens of the department of revenue filed pursuant to title 67 prior to the department’s child support lien.

(d) (1) Nothing in this section shall be interpreted to give the department priority over any deed of trust or any security interest perfected under the Uniform Commercial Code prior to the filing of the notice of the department’s child support lien, irrespective of when such child support lien arises. “Filing” for purposes of this subsection (d) shall mean that the department has recorded its notice of lien pursuant to the provisions of subsection (b) by filing a document to record its notice of lien in the appropriate office for such recordation or that it has effectively recorded its lien pursuant to the automated recordation method permitted by subdivision (b)(3).

(2) No lien for child support arrearages shall be perfected against a motor vehicle unless such lien is physically noted on the certificate of title of such motor vehicle.

(3) Nothing in this part shall be deemed to give the department any priority over any possessory lien including, but not limited to, mechanics’ and materialmen’s liens pursuant to title 66, chapter 11, part 1; artisans liens pursuant to title 66, chapter 14; or garagekeepers’ and towing firm liens pursuant to title 66, chapter 19, part 1.

(e) The notice of lien required to be filed or recorded under subsection (b), or any renewal thereof, shall be effective until the obligation is paid.

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