The federal Family Support Act

 

In a typical debtor/creditor case, a creditor must go to court and get a judgment against a debtor before it can take part in collection efforts on the debt, such as garnishment or property assignments. Parents who are not receiving the support that they are entitled to receive per an existing court order do not typically have to go through the process of getting a judgment to have wages automatically withheld from the other parent’s wages.

Family Support Act

The federal Family Support Act mandates that states establish a program that allows for the automatic withholding of income from responsible parents’ paychecks for child support orders made or modified after December 31, 1993. For orders entered into before this time, a parent can still get income withholding if the recipient parent returns to court because the other parent is in arrears.

Provisions related to automatic withholding also apply to orders that combine child and spousal support. However, they do not apply to orders that are only concerned with spousal support. The federal law requires a new state to honor the income withholding order that was entered in a previous state if the paying parent moves to a new state.

Process of Automatic Income Withholding

After the court orders a parent to pay child support, the custodial parent or his or her representative forwards a copy of an income withholding order to the noncustodial parent’s employer. This order shows the amount of wages that should be withheld during each pay period.

The employer withholds the applicable portion of the wages and sends the amount of wages to the custodial parent directly or the state agency that distributes child support. Employers are required to follow these income withholding orders, and they must usually respond to such orders within seven days of notice of the order.

Income Defined

Income withholding orders are most commonly used in situations in which a paying parent has steady employment. However, other types of income can also be withheld, such as pension, retirement funds, annuities, unemployment compensation or public benefits.

Different states exempt certain property from garnishment for consumer debts, such as retirement or pension benefits. However, many of these exemptions do not apply to child support debts. Federal exemptions exist for income derived from Social Security, as well as certain pensions like those that are governed by ERISA.

Hearing

Some states require the recipient parent or his or her legal representative to send a notice regarding the paying party’s right to request a hearing regarding the wage assignment. The employer may also receive notice of this information.

Exceptions

Some states do not automatically order income withholding for new cases in which the paying parent is not in arrears. Other states do not order automatic income withholding if a child support agency is not involved. Parents may reach separate agreements in which they agree not to use automatic income withholding.

Wage Garnishment Limits

The Consumer Credit Protection Act is a federal law that establishes limits regarding garnishments. For child support debt, the act allows for up to 50 person of an employee’s disposable wages to be garnished if he or she has other dependents. Disposable wages are considered the amount after mandatory tax deductions. This figure may not be the same as a person’s net pay, which may include medical insurance, uniform costs or other voluntary deductions.

For parents who do not have other dependents to support, the Consumer Credit Protection Act provides for garnishments of up to 60 percent of an employee’s disposable wages. If the paying parent is at least 12 weeks in arrears, the employer can withhold an additional 5 percent.

Other Enforcement Measures

Child support agencies and other parties often have additional enforcement measures available to them that are not available to other types of judgment debtors. For example, a party responsible for paying child support may have his or her driver’s license or professional license suspended or revoked if he or she fails to make timely child support payments. Additionally, he or she may lose passport privileges due to non-payment of child support.

Child support debts can also result in an interception of state and federal tax returns, certain lump-sum payments and lottery winnings. In some cases, courts may allow the recipient parent to seize other property or place liens on other property owned by the debtor.

Like with other types of court orders, willful noncompliance can result in a finding of contempt of court. This can spell time in jail or possible fines for the non-paying parent.