Writs of Execution
New Jersey Judiciary Probation Child Support Enforcement
Revised 7-2015
In this Topic
- A. Authority
- B. Overview
- C. FIDM vs. Writs
- D. Procedure to Seize Assets
- 1. Prepare the Writ of Execution
- 2. Serve the Writ
- 3. Obligor Contest of Writ/Administrative Screening
- 4. Cancellation of a Writ
- 5. Obligor Waiver to Contest
- 6. Prepare Notice of Application for Order to Turn Over Fund and all Applicable Attachments
- 7. Failure to Comply with the Order to Turn Over Funds
- 8. Update the NOTE Screen on NJKiDS
- E. Assets Located in Other States
A. Authority
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New Jersey Statutes Annotated: |
N.J.S.A. 2A:17-65 |
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Rules Governing the Courts of the State of New Jersey: |
Rule: 4:59-1(c) |
B. Overview
A Writ of Execution (Writ) is a tool for PCSE to obtain payment of past-due support owed by Obligors.
Pursuant to R. 4:59-1(c), each of the Vicinage Presiding Judges of the Family Part may issue a standing order authorizing the Probation Division to execute on cash or cash-equivalent assets, as defined herein, to collect child support, spousal support, or alimony judgments payable through the Probation Division, and directing that Writs of Execution (Writs) to collect past-due child support, spousal support, or alimony be served on the holder of such assets by the Probation Division. Accordingly, in every vicinage, the Vicinage Chief Probation Officer (Chief) has been designated Deputy Clerk of the Superior Court by the Presiding Judge for the purpose of certifying Writs for support judgments payable through the Probation Division. Copies of the standing orders issued in each vicinage are available on the InfoNet.
For PCSE purposes, Writs are issued only on cash or cash-equivalent assets owned wholly or in part by the Obligor. Sources of cash or cash-equivalent assets include, but are not limited to, employment-related lump sum income such as commissions, bonuses, compensation paid to independent contractors (also known as 1099 employees), employee buyout packages, employment incentives, profit sharing, cash-outs of vacation or sick pay, bank accounts; money-market mutual funds, credit union accounts, savings and loans accounts, insurance annuities, safe deposit accounts, trusts, investments, bail money, prize purses, casino, racetrack and other gambling winnings (not including in-state lottery and racetrack winnings that are addressed by the Lottery Offset program), and any other assets from which funds are readily available without the need for seizure, inventory or public sale.
Lump sum payouts from New Jersey Centralized Payroll, the Social Security Administration, employers reporting through the FPLS State Services Portal, and all employer listings containing multiple non-custodial parents are handled by the DFD, OCSS, AEU for lump sum processing in accordance with DFD Action Transmittal 15-01. These are generally pursued through an IWO.
In order to pursue a Writ, there must be an open judgment against the Obligor.
C. FIDM vs. Writs
The Writ process is an enforcement action similar to FIDM, authorized pursuant to 42 USC §666(a) (17) and N.J.S.A. 2A:17-56.57, that allows Probation to seize cash or cash-equivalent assets to enforce delinquent support obligations.
FIDM
FIDM requires state child support enforcement (IV-D) agencies to enter into data exchange agreements with financial institutions doing business in the State for the purpose of conducting an automated data match to identify accounts of delinquent Obligors. In New Jersey, a case qualifies for the FIDM levy process when no regular payments have been received in thirty-five (35) days and the case has accrued more than three months of arrears.
Writ
In contrast, the Writ process enables Probation staff to pursue cash or cash-equivalent assets that are not reachable via FIDM. Unlike FIDM, there are no statutorily mandated criteria that govern when a Writ should be considered. The minimum Writ requirements are:
(1) an active case payable through Probation;
(2) existence of arrears on the case; and
(3) a support judgment.
A Writ may be pursued even if the Obligor is meeting his or her MSO and/or has an active income withholding in place.
Unlike Income Withholding Orders, FIDM and Writs are not subject to the Federal and state CCPA limits; 100% of the lump sum may be attached, up to full amount of the arrears.
D. Procedure to Seize Assets
Information regarding an Obligor’s assets (bank account numbers, account balances, locations of assets, etc.) can be obtained from a variety of sources, including the Obligee, the Obligor, the holder of the asset, social media, data match information, or other entity or individual with such information. If verification of information is necessary, an “Administrative Subpoena” may be served upon an individual or entity believed to possess relevant information. (See Section 1614 of the PCSE Manual)
1. Prepare the Writ of Execution
When PCSE staff seeks to execute on an individual’s cash or cash- equivalent assets, the following steps should be taken:
Verify the judgment information, including the debt amount and the Obligor, on NJKiDS and ACMS and conduct a thorough review of the case taking into consideration factors which include, but are not limited to: pending motions/applications, litigation, settlements, inheritances, workers’ compensation awards, age of the child(ren), additional cases, monies on hold, pending FIDM, and the like. After the completion of the case review by the worker, the gathered information should be reviewed with a supervisor.
If the Writ is to be served on a financial institution but the account information is not confirmed, verify that assets are being held by the entity. Serve the financial institution with an Administrative Subpoena requesting information associated with the Obligor’s social security number, including the name, address, and amount on deposit in the account, if any, and the name and address of any joint account holders. If the Writ is to be served on an individual or entity other than a financial institution, and staff has sufficient information with which to proceed, go to step c.
Complete the Writ of Execution (Attachment 1615A, 1615B and 1615C). These documents should be submitted to a supervisor for final review and approval prior to being presented to the Vicinage Chief Probation Officer (Chief) for signature.
Request that the Chief sign the Writ of Execution.
2. Serve the Writ
The Writ must be sent to the asset holder via regular and certified mail, return receipt requested.
The Writ requires the holder of the asset to freeze enough of the asset sufficient to cover the judgment amount, thus preventing the Obligor from liquidating the principal amount owed to the Obligee. The asset is not turned over until ordered to do so by the court.
If serving the Writ by personal service, PCSE staff must complete the Certification of Personal Service on Asset Holder (Attachment 1615D). This form memorializes the service process and is to be maintained in the case file.
Due process requires that an Obligor and any known joint account holder be provided notice prior to the asset being seized. Pursuant to R.4:59-1(h), the notice to the Obligor and known joint account holder must be mailed on the same day that PCSE staff have confirmed that the levy has been served on the asset holder, or not later than five (5) business days after a the Writ was mailed.
Note: Certified mail delivery confirmation can be verified online via the United States Postal Service website.
The Notice to Obligor of Writ of Execution (Attachment 1615E) form must be sent to the Obligor and any known joint account holder via regular and certified mail with return receipt requested. Obligor Waiver to Contest (Attachment 1615H) and Writ of Execution (Attachment 1615B) must be included with the notice sent to the Obligor. Proof of service must be maintained in the case file.
3. Obligor Contest of Writ/Administrative Screening
The Obligor or joint account holder has a right to contest the Writ of Execution on the basis of mistake of fact. Mistake of fact means an error in the amount of current support or arrears or in the identity of the Obligor or that the order of support does not exist or has been vacated. Any such contest must be received within ten (10) business days of the postmark of the Notice to Obligor of Writ of Execution. Appropriate documentation must accompany the contest. If the basis for the contest is a mistake of fact, then the PCSE worker will conduct an administrative screening. Administrative screenings must be completed within five (5) business days.
The individual filing the contest must provide appropriate documentation for PCSE to review. For example, an Obligor asserting mistaken identity will need to provide identification that includes date of birth and social security number. Obligors asserting incorrect arrears amounts will need to provide proof of payments or a court order.
Note: Any questions regarding whether a contested Writ should proceed based on information provided by the parties should be reviewed by a supervisor.
A contest that meets the accepted criteria stated above will be reviewed by designated PCSE staff. At the conclusion of the administrative screening, one of the following outcomes will result:
The Writ will remain as originally issued;
The Writ will remain in force, however, the Writ amount will be amended; or
The Writ will be canceled.
Once PCSE has completed the administrative screening, PCSE will send the Obligor a Notice to Obligor of Contest Results (Attachment 1615F). This document provides the Obligor with the results of the screening, which would be one of the outcomes described in paragraph c. above. In any scenario where PCSE will uphold the Writ, PCSE will advance the process by submitting an Application for Order to Turn Over Funds (Attachments 1615I, 1615J, 1615K, 1615L, 1615M, 1615N, and 1615O, as applicable).
Should the contest be for any reason other than mistake of fact, e.g. third party on Obligor’s bank account, Obligor receiving federal benefits, Obligor deceased, or PCSE staff is unable to make a determination, then staff should schedule a hearing before a judge by preparing a Notice of Application to Turn Over Funds, as more fully described in Paragraph 6 below. At the hearing, the contest will be addressed at the same time the judge makes a determination on the Application to Turn Over Funds.
4. Cancellation of a Writ
In the event that PCSE determines that the criteria for mistake of fact have been met, PCSE shall vacate the Writ by sending a Notice to Asset Holder of Change to Civil Action Writ of Execution (Attachment 1615G) to the asset holder, with a copy to the Obligor and the joint account holder, if any.
The Notice of Change is signed by the Chief and sent via regular mail.
Cancellation of a writ requires supervisory approval.
5. Obligor Waiver to Contest
The Obligor has the right to agree in writing to the immediate surrender of the funds. The Obligor Waiver to Contest (Attachment 1615H) will allow PCSE to submit the proposed Certification in Support of Application (Attachment 1615N) and Order to Turn Over Funds (Attachment 1615O) to the court for signature at the conclusion of the contest period.
If the obligor signs the Obligor Waiver to Contest and no other contests are received during the ten (10) day contest period, PCSE staff may advance the process by completing the certification (Attachment 1615N) and checking the appropriate box. PCSE staff should request that the Court sign the proposed Order to Turn Over Funds (Attachment 1615O) without further notice to any interested party.
6. Prepare Notice of Application for Order to Turn Over Fund and all Applicable Attachments
If, during the contest period, the Obligor has not filed a waiver and the writ has not been vacated, or if no contest has been submitted by any interested party, staff should prepare a Notice of Application for Order to Turn Over Funds, which should be sent after eleven (11) business days from the date of the Notice to Obligor of Writ of Execution. Although service of the Writ upon the holder of the asset freezes the subject asset(s) in an amount sufficient to pay the judgment (assuming there are sufficient assets to do so), no turnover of funds shall be required to be made until so ordered by the Court.
The Notice of Application for Order to Turn Over Funds must be served upon all parties on the case; the Asset Holder (Attachment 1615I), Obligor (Attachment 1615J), Obligee (Attachment 1615K), and Interested Parties, if any (e.g. CWA or joint account holder) (Attachment 1615L) via regular and certified mail, return receipt requested.
The components of the Notice of Application for Order to Turn Over Funds include the following items:
Notice of Application for Order to Turn Over Funds (Attachments 1615I, 1615J, 1615K, and 1615L, as applicable)—providing information as to the date, time, and place where the application will be heard.
Certification in Support of Application (Attachment 1615N) a certified statement which presents the facts of the matter as known to PCSE, and which provides grounds upon which the Court may rule in favor of PCSE and enter the Order to Turn Over Funds.
Order to Turn Over Funds (Attachment 1615O).
Notice to Litigants (Attachment 1615M) explains to interested parties when and how to respond to the Notice of Application for Order to Turn Over Funds.
Notice of Application must be mailed to the parties thirty (30) calendar days prior to the date of the hearing.
7. Failure to Comply with the Order to Turn Over Funds
If the holder of the asset fails to promptly comply with the Order to Turn Over Funds, PCSE staff should contact the asset holder by telephone and if necessary, follow up with the Notice of Failure to Comply With Order to Turn Over Funds (Attachment 1615P).
If the holder of the asset continues noncompliance, PCSE staff should prepare and file an Order to Show Cause for Contempt of Court. See PCSE Operations Manual Section 1614 and 1614D for additional guidance on preparing an Order to Show Cause.
8. Update the NOTE Screen on NJKiDS
At each stage of the Writ process, NOTE entries must be entered on NJKiDS.
Note: Proof of service must be maintained with the case file should they be required for a contest or other event.
E. Assets Located in Other States
The Writ procedure described above generally relates to assets located within the State of New Jersey. If the holder of the asset is headquartered in another state but has an office or registered agent in New Jersey, it is advisable to serve the Writ of Execution (Attachment 1615A, 1615B,and 1615C) and related documents upon the New Jersey office. If there is no registered agent within New Jersey, PCSE staff should attempt to serve the Writ on the out-of-state entity. If the Writ is not honored, staff have two options. Staff may consider sending a LSR to the State Child Support Enforcement Agency in which the holder of the asset is located or a manual Multi-State FIDM.
LSR is a request for one-time assistance sent to another state without the need to register the case in that state. The assisting state does not register the order, but attempts to help the requesting state. PCSE staff must submit a LSR to the other state’s central registry using a UIFSA Transmittal #3. A LSR may also be used when an Obligor subject to a New Jersey support order is receiving a lump sum payout in another state. Examples are prize purses from boxing matches and out-of-state entertainers who are paid per performance.
Note: Upon request, the other state must provide the following limited services: service of process, assistance with paternity testing, assistance with discovery, and teleconferenced hearings. States have the option of honoring or not honoring requests for other types of limited services.
The case must be evaluated by PCSE staff to ensure it is eligible for FIDM. PCSE staff will forward appropriate cases to DFD which will make a determination if the case is subject to the data match and to any subsequent lien/levy action. Any lien/levy action taken by DFD is subject to the laws of the state where the asset is located.