W. Va. Code R. § 97-7-5 - Hierarchy for allocation of support payments when an obligor owes support to more than one obligee

5.1. When more than one obligee is owed support by the same obligor, allocation of the amounts collected is dependent upon the source of the payment, the status of the support order, and the character of the amounts owed. In addition to the federal regulations related to the hierarchy of allocation set forth in § 97-7-4, the following additional rules apply.

5.2. When the payment is received that is not from an income withholding or from a state or federal income tax refund offset:

5.2.a. If none of the cases have an income withholding in place and none have an order of support, any payments received shall be allocated proportionately among the cases, based upon the number of children in the obligor's cases for whom paternity is established.

5.2.b. If none of the cases have an income withholding in place but all have orders of support, any payments received shall be allocated proportionately among the cases, based upon each case's relative percentage of the total current support obligation owed by the obligor in all of his or her cases.

5.2.c. If all of the cases have an order of support but not all have income withholding notices issued, any payments shall be allocated to the case or cases where income withholding notices have not been issued. The funds shall be allocated proportionately, based upon each case's relative percentage of the total current support obligation owed by the obligor in all of his or her cases without income withholding notices in place.

5.2.c.1. If all of the cases have an order of support but not all have income withholding notices issued, and one or more of the cases without an income withholding notice issued becomes overpaid, any portion of a payment creating an overpayment on a case or cases without an income withholding can be reallocated to a case or cases for the obligor with an arrearage.

5.2.d. If one or more of the cases has an order of support but one or more do not, any payments shall be allocated to the case or cases with the orders of support. The funds shall be allocated proportionately, based upon each case's relative percentage of the total current support obligation owed by the obligor in all of his or her cases with an order of support.

5.2.e. Payments may be accepted in cases in which paternity of a child is not established. However, if the obligor has cases in which paternity has already been legally established, the child for whom paternity is not established will receive no distribution until paternity is established.

5.3. If the source of the payment is an income withholding, the payment shall be allocated only to the cases of that obligor that have an income withholding issued to the employer or source of income that remitted the payment.

5.3.a. The payment is first divided proportionately among the cases that have an unpaid current support obligation for the month in which the payment is received. The proportion is based upon each case's current support obligation in relation to the total amount of current support owed by the obligor on cases with an income withholding notice issued.

5.3.b. If the payment amount satisfies all of the current support due during the month in which the payment is received on cases with an income withholding in place for this source of income, the balance of the payment shall be divided equally among the obligor's cases with an income withholding issued for this source of income for which an arrearage exists.

5.3.b.1. If any cases with an arrearage are owed an amount less than an evenly divided portion of the payment, only the amount necessary to pay off that arrearage will be applied to that case. The remainder of the payment will be divided equally among the remaining cases owed an arrearage.

5.3.c. If all cases for the obligor with an income withholding in place are paid in full, the balance of any payment collected shall be allocated to any remaining case or cases of the obligor, regardless of whether an income withholding has been issued, so long as collection by income withholding is not prohibited by court order or operation of law in that case.

5.4. If the source of the payment is a state tax refund offset, the payment shall be allocated and distributed pursuant to 45 C.F.R. §303.102.

5.5. If the source of the payment is a federal tax refund offset, the payment shall be allocated and distributed pursuant to 45 C.F.R. §303.72.

Notes

W. Va. Code R. § 97-7-5