- Slides: 29
The New SCAO Forms – What Judges & Lawyers Need to Know
BACKGROUND – Uniform Support Order • Proposed Deviation Court Rule • New Laws Requiring Information – Proposed Court Rule • Mi. CSES – Delays in Order Entry • Local Practices/Local Language
SOLUTION: Uniform Order • Clearly State that the Order follows the Formula • Incorporate All State and Federal Requirements • Make Information Easier to Enter • Potential Optical Recognition • Potential E-Filing • Make Uniform Language
BACKGROUND - Judgment Information Form • Statutes Require Information to be Provided to FOC • • • • Name Social Security Number Driver’s license number Date of birth Address Professional licenses Place of employment Insurance information Mailing address Residence address Telephone number Employer’s telephone number Much was put into the Judgment
SOLUTION: Judgment Information Form • Provides basic information that is necessary to set up an order • Provides confidential information that might also end up in the order and be used for improper purposes
How do the USO and JIF get updated? The State Court Administrative Office’s FOC Forms Committee meets in the spring and fall of each year to review requests form changes. Anyone may request a change in the approved forms. The committee reviews each request to determine whether it would be consistent with applicable statutes or regulations, and whether it would improve practice in the courts and FOC offices. If the committee approves a form change, SCAO modifies the form. With the USO, the court rule requires the Michigan Supreme Court to give final approval to changes before a revised form is published. In addition, SCAO analysts regularly review changes in the law and propose modifications to the forms based on those changes. SCAO forms are also reviewed by the Mi. CSES forms subcommittees. If a statute or regulation changes before the SCAO Forms Committee meets, SCAO can make an emergency change (pending the full committee meeting) or consult with committee members through e-mail.
Problems and Solutions • Q 1. Can an attorney sign the JIF? – A. Yes. MCR 2. 117(B)(1) provides that “Unless a particular rule indicates otherwise, any act required to be performed by a party may be performed by the attorney representing the party. ” • Q 2. The FOC has conducted a conciliation conference and has prepared the temporary custody order. Who prepares the JIF? – A. The JIF is designed to provide information to the FOC to make certain that it has sufficient information to enforce the order. The court could: • Dispense with the JIF requirement because the FOC should not have to provide information to itself. • Order a party to provide the JIF. • Have the FOC prepare the JIF if the employees in the FOC office who enter orders on the computer would not otherwise receive the information without having to go through the order to gather it.
Problems and Solutions • Q 3. How do I fill in the “Uninsured Medical Expenses” paragraphs in FOC 10 and 10 a when there is more than one child? – A. The Uninsured Medical Expenses paragraphs provide that all uninsured health care expenses exceeding the ordinary medical amount will be divided between the parties based on certain percentages. The order concludes with this sentence “The ordinary medical amount is $ _____ year. ” When there is more than one child the amount inserted in the blank can specify the number of children (e. g. , $289 for 1 child, $578 for 2 children, $ 867 for 3 children, etc. ), or, the blank can be filled in with a per-child amount (e. g. , The ordinary medical amount is $289 per child per year. ) If the amounts are entered in this manner, the annual ordinary medical amount in the order will be correct when a child emancipates, without the need to modify the order. • Q 4. MCR 2. 114 states that: “Every document of a party represented by an attorney shall be signed by at least one attorney of record. ” There are no signature lines for the attorneys in the USO. What do I do? – A. The court rule requires that an attorney sign each document of a party. Because the USO is a court order issued by the court and not a document that the party is generating to provide information to the court, it may not be necessary for either the attorneys or their clients to sign it in most cases. The exception would be when the USO is being used as a stipulation to support its entry as an order. Then it would be necessary for an attorney to sign the document. In that case, there are three possible solutions: 1) Attorneys can sign on behalf of their clients without obtaining the parties’ signatures. See MCR 2. 117(B)(1). 2) The attorneys can sign underneath or next to the party’s signature despite the lack of a specific line for that purpose. 3) The attorneys can sign and attach a separate stipulation asking the court to enter the USO.
Problems and Solutions • Q 5. Can a local FOC or court require additional standard paragraphs in the USO? – A. An FOC or court should not require additional standard paragraphs in the USO. If there are paragraphs a court or FOC thinks need to be in the USO, it should refer them to the forms committee. If the forms committee does not adopt the proposed change, a court might seek a local court rule for the requirement because the change would govern practice in that court. • Q 6. If a party does not list any of the child support or insurance information in the judgment but wants to incorporate the USO re those provisions, and the court rules still require separate headings, (a) what heading should be used in the judgment: "Child Support/Health Insurance/. . ", and (b) must it say under this heading that "the attached USO is incorporated by reference"? – A. Use the heading: "Uniform Support Order" All provisions are labled separately in the USO to satisfy the court rule requirement. – We suggest: "Support provisions are contained in the Uniform Support Order that accompanies this judgment. "
Problems and Solutions • Q 7. I just had one DM final judgment were no child support was ordered due to dad's incarceration. I had it returned and told them to fill out the USO but say NONE DUE TO INCARCERATION for amount of support due and owing. That way we still get the medical insurance info and everything else we need. What do you think? – That works fine, or they could just explain the form's absence due to incarceration. The good thing about putting it in the USO is that it has all the required reporting and provides a basis for future FOC modification. – If the judgment reserves support, it would have to explain the absence of a USO. However, we recommend that all orders say $0 for the support amount unless it is a true reservation. With $0, the FOC can review at any time and all the required language is there. It also counts (so I have been told) as a support order for incentive purposes. It also keeps the PA from having to file a motion to establish support. – Most cases reserving support really intend to set support at $0. Examples: incarcerated payer, split custody, temporary unemployment. The court isn't really saying support is reserved, the court is saying it does not see a reason to require the payer to pay support under the circumstances. – Contrast this with a true reservation which occurs when the court does not get good service on a payer for child support purposes or when there is a temporary situation that the court itself will revisit (such as a payee living in the marital home pending its sale with the payer paying the mortgage). Even in the latter case, the only reason to reserve support would be to preserve the ability to retroactively modify the obligation.
Problems and Solutions • Q 8. Is a JIF required for post judgment changes? – A. There is no need for a JIF on post-judgment. • Q 9. FOC custody and child support evaluations that are not objected to-and result in an order-do we need to prepare USO's and submit JIF's to the parties for prejudgment custody/parenting time orders? Mi. CSES does USOs as part of the packet of forms it generates on support modifications. – A. If it is done outside Mi. CSES, USOs are needed. On the custody and PT, see 2 Q above. The order adopting the court rule change says the FOC and PA do not have to comply until the forms can be produced in Mi. CSES. The identical form cannot be produced in Mi. CSES. However, we would probably accept what Mi. CSES is producing post-January 1, 2007. The reason - it is the same form except that it does not have numbered paragraphs. They did that because paragraph numbers were hard coded and form changes would require programming. Hopefully, all will be fixed by 1 -1 -07.
Problems and Solutions • Q 10. Often we generate recommended orders that encompass two or more time periods (e. g. one support amount for one period of time and then a modified amount for a subsequent time period). The USO does not allow for this. What we did in both of the cases yesterday for which this was an issue was to generate two USOs, one for each time period. Seems like a big waste of time and paper. I don't know whether SCAO already knows about this issue or not. – A. You can generate two orders for different time periods or attach a separate sheet with the different effective date. • Q 11. How do we know whether something is done outside of Mi. CSES or not? Long story short, I'm getting FOC recommendations that have NO USO attached and I don't know whether to send it back or what. – Mi. CSES forms will have an identifying number on them [Mi. CSES FOC 10 (Rev. 09/05)]. The form can be found at: http: //misupport. cses. state. mi. us/framesets/micsesformframe. htm? url=http%3 A//mi support. cses. state. mi. us/systems/micses/forms/application_forms/pdfs/FO C 10. pdf
Problems and Solutions • Q 12. Why can’t I just copy the USO language in the judgment? – The court rule does not permit it. Subrule (D)(1) states that the USO must accompany judgment or order affecting child support or spousal support. Also, incorporating the USO language into a longer judgment will defeat the goals of reducing paperwork, processing interstate cases more efficiently, speeding up FOC review and entry of orders, and advancing the technology for entering the orders into the Michigan Child Support Enforcement System (Mi. CSES). • Q 13. Where can I get a copy of the USO? – The USO is available on the Supreme Court’s website http: //www. courts. mi. gov/scao/courtforms/domesticrelations/drindex. htm It can be filled in there and printed, or it can be scanned and used with a word processor. Practitioners may also duplicate the form using their own word processing equipment.
• Q 14. Do I need to put support provisions in both the judgment and the USO? – A. No. The judgment must refer to the USO (e. g. , “Support provisions are contained in the Uniform Support Order that accompanies this judgment”). If you include support provisions in the judgment or order and also in the USO, any conflict will be resolved by reference to the USO. Therefore, there is no reason to duplicate the provisions. • Q 15. Why should I have to fill out forms that duplicate information I have already provided? – A. The JIF duplicates some information that is in the judgment, but filing the JIF will speed up entry of the information into Mi. CSES and gather all the necessary information in one place. If you have previously provided information to the FOC on a JIF or on a verified statement, you have the option to provide only the information that has changed since you filed the previous JIF or the verified statement. You do not need to copy support provisions into the JIF; the FOC will obtain that information from the USO.
Problems and Solutions • Q 16. Where do I put the amount for the insurance premium? – A. First, you should add (or subtract) the payer’s share of health care premiums from the actual base support amount. Next, enter the amount in the checkbox section in the grid in section 3 of the USO that reads: “Base support includes a net health care premium adjustment of $_______, that  is not subject to abatement. ” Note: If the payer maintains health care coverage and base support is reduced to account for the payee’s share of the health care premiums, the amount would be entered as a negative amount on that line. Conversely, if the payee maintains health care coverage and base support is increased to account for the payer’s share of the health care premiums, the amount would be entered as a positive amount on that line. The form is designed this way because Mi. CSES will not accept a negative number and has no separate account type under which the premium can be entered. This problem was solved by including the health insurance premium in the base support amount. However, this solution created a separate problem. Generally, health insurance is not abated during extended parenting time but the base support amount is abated. This second problem was solved by stating in the order the amount of the health care premium (which could be stored in the Mi. CSES notes) and allowing the user to check a box in the order that says the health care premium is not subject to abatement. This will allow the FOC to exclude health care premiums when it calculates parenting time abatements. In the event the health care premiums are subject to abatement, the user can check another box on the form that abates the health care premiums.
Problems and Solutions • Q 17. Is the health care premium entered as a constant amount, or is it divided among the children in the case? – A. The health care premium for all the children is the cost of insuring a family less the cost of the single parent’s coverage. Normally this means that the cost for the children is the same no matter how many are covered, and the amount should be the same in each box on the grid. There are some cases in which the insurance also covers a current spouse or children in a different case. In those cases, the amount may change with the number of children supported.
Problems and Solutions • Q 18. How does the USO become a Qualified Medical Child Support Order (QMCSO)? – A. When a parent fails to obtain or maintain health insurance under an order, a Qualified Medical Child Support Order (QMCSO) can be sent to the parent’s employer, directing the employer to enroll the children in the employer’s group health plan. The QMCSO must contain specific information, such as the recipient’s name and address, a description of coverage to be provided, and the time period to which the order applies. Federal law defines a QMCSO as either an order or a properly completed notice. Federal regulations require the National Medical Support Notice (NMSN) to be used as a QMCSO. – Paragraph 4 of the USO states which parent is responsible for maintaining health insurance for the child(ren). The FOC qualifies the order by issuing a NMSN to the parent’s employer. The NMSN directs the employer to enroll the child in the employer’s group health plan. MCL 552. 626 b(1) states that the order or notice shall comply with the NMSN, but does not require that the notice language appear in the order. While the language required for a QMCSO may be put in the judgment or order, it can be implemented only by a NMSN. Therefore the language is redundant when included in the order. Moreover, putting the language in the judgment or order makes personal information concerning the parties and their children available as a public record. – For non-FOC cases, additional language may need to be included in the order or additional steps may be necessary to implement the insurance provisions.
Problems and Solutions • Q 19. Why does the source of income information appear in the USO in addition to the non-public JIF? – A. MCL 552. 603(7)(C) requires that the order identify the source of income. • Q 20. If there is a deviation from the standard language in the USO, where do I enter the non-standard information? – A. You should enter any language that is different from the USO’s preprinted language in the last paragraph, labeled “other. ” SCAO recommends that the language be attached as the number corresponding to “other” in the uniform support order and that each change be made a separate lettered paragraph under that number. For example, if “other” is designated as paragraph 13 in the USO, the attachment might read as follows: “ 13. The following changes are in addition to, or replace, the preprinted paragraphs of this order: a. Support shall terminate at age 18. b. Plaintiff shall be responsible for tuition at the child’s private school. Etc. ” • Q 21. How will I know when the USO has changed? – A. The form will change on the Supreme Court’s website and the change will be announced in a mailing to the courts.
Problems and Solutions • Q 22. There are no parenting time or custody provisions on the USO–where do I enter that information? – A. Custody and parenting time orders should be in the main judgment or order that references the USO. This would usually be a divorce, paternity, custody, or family support judgment. Also, a summary of this information is required on the JIF. • Q 23. How do the “alternate payee” provisions of the Uniform Spousal Support Order work? – A. In the typical case, if you use form FOC 10 b, all support is paid to the State Disbursement Unit (SDU), which then sends it to the payee. If the court requires support to be paid to an alternate payee (such as a mortgage company or insurance company), the payment cannot be made through the SDU; it must be paid directly to that alternate payee. If support is paid directly to the payee and not through the SDU, use FOC 10 c.
Problems and Solutions • Q 24. What information should be entered in the blanks in paragraph 3 of the Uniform Support Order relating to spousal support? – A. Spousal support may end for many reasons. If support is payable until a date certain you should check the first box and fill in the termination date. If support is payable as a fixed amount but payable in installments, you should check the second box and fill in the amount. If support will terminate on the death of the payee, you should check the third box. If there any other events that would terminate support, such as death of the payer, remarriage of the payee, or the payee’s cohabitation with another person, that event should be filled in on the space provided. • Q 25. What is the optional check box in paragraph 4 used for? – A. If support is to be deducted from the payer’s income and included in the payee’s income for income tax purposes, this box should be checked. The user should also be sure to include any other language that is necessary to comply with any other IRS requirements applicable to the case.
Problems and Solutions • Q 26. What addresses do I put in the JIF and the USO? – A. A final judgment or order must state the parties’ current addresses and require a party to notify the FOC if the party changes his or her address. MCR 3. 203 requires the FOC to use the most recent addresses set forth in the pleadings or that the parties have provided to the FOC. Therefore, you should only include an address in the JIF that is the most recent address that satisfies MCR 3. 203. • Q 27. How often must I file a JIF? – A. MCR 3. 211(F)(2) provides that: (1) the party submitting the first temporary order awarding child custody, parenting time, or support, and (2) the party submitting any final proposed judgment awarding child custody, parenting time, or support, must file a JIF. After the final judgment has entered, the parties are required to update information with the FOC continuously, but need not file another JIF.