Family Law

Child Support Withholding Orders

Non-payment of child support is on the rise - some of it is due to the economy and lack of jobs, sometimes the non-custodial spouse has a job, but doesn't want to pay. If your ex-spouse has a job, but still refuses to pay, you can serve them with a withholding order from a court or an administrative agency to deduct a specific amount from a parent's income.

Typically, the non-custodial parent (one who doesn't have physical custody) is the parent ordered to pay. Income is defined as any periodic form of payment, regardless of source, and includes wages, salaries, commissions, bonuses, workers' compensation, disability payments, retirement or pension payments, and interest from principle.

Issuance of Withholding Orders/Notices

Withholding orders/notices aren't automatic. To have a non-custodial parent's income garnished, his or her employer must receive an Income Withholding Order (IWO). If it is an order to withhold income, the employer now has authority to garnish the non-custodial parent's income.

When a notice is issued, a copy of the administrative or court order containing a provision authorizing income withholding must be provided before the employer can begin to garnish the non-custodial parent's income.

Taxes Take Precedence Over Support Garnishments

The only withholding that takes precedence over child support is a federal tax levy (obtaining of money thorough legal seizure and sale of property) issued by the IRS before the child support order was established. The date the withholding order/notice was served on the employer is not considered in determining precedence. Otherwise, a child support income-withholding order/notice must be paid before all other garnishments.

Even when bankruptcy is declared, you must still to pay child support. Debts due for delinquent child support are not dischargeable in bankruptcy. If an employer is notified that the bankruptcy court has taken over withholding the child support payments, the employer is no longer responsible for doing so. However, it should continue withholding the amount until it has received official notification from the agency or bankruptcy court.

When Does Employer Responsibility End? 

Employers must honor an income-withholding order/notice for child support from any state, including U.S. territories. A standardized withholding form, known as the Order/Notice to Withhold Income for Support must be used by all states.

Employers must deduct the specified amount of child support during each pay period and send it to the appropriate State Disbursement Unit (SDU). The SDU then forwards the payment to the custodial parent.

State law provides for fines against any employer who discharges from employment, refuses to hire, or takes disciplinary action against an employee in response to withholding. Employers are also prohibited from withholding more than the ordered amount.

If you're an employer who has received a Withholding Order, be sure to contact a lawyer or accountant to find out the best way to proceed.

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