15 AAC 125.550. Modification of income withholding amount based on hardship

(a) At any time after an order to withhold and deliver has been issued, an obligor may request that the order to withhold and deliver be modified based on evidence of hardship on the obligor or the obligor's family. In order to obtain a modification under this section, the obligor shall present clear and convincing evidence of the hardship that would result if the order to withhold and deliver were not modified.

(b) The agency may consider the following factors in determining whether, for purposes of this section, a hardship exists:

(1) significant illness or disability that prevents the obligor from working at any reasonable employment;

(2) exceptional medical expenses that are not reimbursed by insurance, Medicaid, or another government program, or through private litigation;

(3) an accident or other disaster that significantly affects the obligor or an immediate family member of the obligor;

(4) the obligor has physical custody of one or more of the children for whom support is sought under a valid custody order issued by a tribunal of competent jurisdiction; or

(5) the obligor lives a subsistence life style without any local opportunity for employment.

(6) the net monthly income of the obligor's household is 150 percent of the poverty guideline for this state, as set out in the Federal Register by the United States Department of Health and Human Services, and the agency has not determined the obligor to be voluntarily underemployed or unemployed under 15 AAC 125.060.

(c) In order to qualify for a modification based on hardship, the obligor must provide all information required by the agency to verify hardship or, if the information cannot be provided, must explain why the information is not reasonably available. The obligor must disclose the obligor's entire household assets, income, and expenses, including the assets, income, and expenses of each member of the obligor's household.

(d) In deciding whether to grant or deny a request under this section, the agency will consider the extent to which, in the agency's determination, the obligor has eliminated discretionary spending and has disposed of the obligor's non-essential assets. For purposes of making a determination under this subsection,

(1) discretionary spending

(A) includes an expenditure made for recreation, comfort, sport, investment, entertainment, private schools, travel, or rental or recreational property;

(B) does not include an expenditure necessary to feed, house, clothe, or ensure the health of the obligor and the obligor's immediate family members;

(2) the agency will consider each expenditure on a case-by-case basis;

(3) in determining whether the obligor must dispose of an asset under this subsection, the agency will, in its discretion, consider the sentimental value of the asset to the obligor and will, in its discretion, weigh the sentimental value of the asset to the obligor and the cost to the obligor of selling the asset against the asset's market value.

(e) The agency will grant or deny a modification requested under this section. If the agency grants a modification under this section, the agency

(1) will not reduce the monthly withholding amount calculated under 15 AAC 125.540(a) below the amount of the obligor's ongoing monthly support obligation or to an amount less than $50 per month, whichever is greater; and

(2) will grant the modification for the duration of the hardship, as determined by the agency, but for no more than two years.

(f) Repealed 6/15/2001.

(g) An obligor may apply to extend a modification granted under this section beyond the period set under (e)(2) of this section. The agency will review an extension request in the manner that the agency reviews an initial request under this section.

(h) In deciding whether to grant or deny a request under this section, the agency will consider the obligor's history of applying for a permanent fund dividend under AS 43.23. The agency will not deny a request under this section solely because an obligor failed to apply for a permanent fund dividend in the past. However, the agency will not grant a request under this section unless the obligor agrees to

(1) apply for permanent fund dividends in the future; or

(2) demonstrate to the agency's satisfaction that the obligor would not be eligible for a permanent fund dividend under AS 43.23 and 15 AAC 23.

(i) An administrative review or administrative appeal is not available from a decision under this section. The decision is final for purposes of appeal to the superior court.

History: Eff. 10/1/98, Register 147; am 6/15/2001, Register 158

Authority: AS 25.27.020

AS 25.27.250

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