REQUESTED BY: Deb Thomas, Director Nebraska Department of Social Services QUESTION:
The Family Support Act of 1988 amended various sections of Title IV-D of the Social Security Act. The amendment to Section 101 of Title IV-D of the Social Security Act provided for immediate withholding (of income) with certain exceptions, in the case of support orders issued or modified on or after November 1, 1990 as to cases being enforced under Title IV-D program procedures. Section 101 requires states to enact laws and implement procedures for immediate withholding in all IV-D cases.
The question is whether proposed legislation, intended to enact a law to implement the federal requirement as to IV-D cases only would be in violation of the ruling by the Nebraska Supreme Court in Drennan v. Drennan, 229 Neb. 204, 426 N.W.2d 252 (1988) which opinion addressed the matter of equal protection.
CONCLUSION:
Yes. Based on the opinion in Drennan, we believe such legislation would be unconstitutional.
It is our opinion that any legislation which would provide for immediate withholding of income for IV-D cases only would be denying an expedited service to those children (and their caretaker) who are not receiving any state or federal aid. A separate classification of the two groups with separate treatment would not rest upon real differences. Based on the rationale in Drennan it would be violating the equal protection clause and would, therefore, be unconstitutional.
Sincerely,
DON STENBERG Attorney General