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Wage Garnishment (Earnings Assignment)

In family law, a wage garnishment is a court order that directs an employer to withhold a portion of an employee’s income and thereafter deliver that withheld income directly to a third person (payee) to pay the employee’s (debtor) unpaid court ordered child support or spousal support. Wage garnishments are legally enforceable against the employer and the employee; willful failure to comply with wage garnishment orders can lead to severe civil and criminal penalties.

Note: The term wage garnishment is sometimes referred to in family law court as a wage assignment, an earnings assignment, or an income earnings assignment. These terms have similar, but not exact, definitions, but for economy or words, these terms are used synonymously here.

Obtaining a Wage Garnishment

When a family law judge orders a person to pay child support or spousal support the person so ordered should be given an opportunity to comply with the court’s order (without further legal action). If the person ordered to pay child support or spousal support willfully fails to pay pursuant to the court’s order then that payee may seek an order for wage garnishment (earnings assignment) against the debtor.

Important: There are different legal remedies that might be available to a payee when a debtor fails to pay court ordered child support or spousal support. A payee should consider all legal options when a debtor fails to pay support, including, but not limited to, the following: civil penalties, contempt of court, modification of court orders, referral to Department of Child Support Services [DCSS]), and more. Every legal remedy accompanies certain benefits and detriments and wage garnishments might not necessarily be in the payee’s best interest in light of other available legal remedies. It's important to seek the advice of a family law attorney to learn the availability of all legal remedies and the legal benefits, as well as the legal detriments, associated with each legal remedy.

To begin with, a payee must ordinarily demonstrate to the family law judge that a wage garnishment is necessary because the debtor has wilfully failed to pay the court ordered support. If the court grants the payee's request for a wage garnishment the order must be timely and properly served on the debtor’s employer in order to become valid. The wage garnishment order informs the employer of the percentage of income that is to be deducted from the employee’s paycheck and where to send that deducted payment.

An employer must begin withholding child support monies within ten (10) days of the receipt of the wage garnishment. The withheld monies must be remitted within seven business days after the employee’s regular payday to the person or entity named in the Income Withholding Order (IWO).

Percentage of Income Withheld for Child Support: Child support wage garnishments cannot exceed fifty percent (50%) of the employee’s disposable income. Disposable income refer to the employee’s net pay (including bonus income), after taxes, unemployment insurance, and social security is deducted. Deductions do not include health and/or dental insurance, charitable or retirement contributions, and non-required union dues. Past due child support or spousal support (arrears) may also be withheld from an employee’s income; however, withholding for arrears may be stayed for good cause as determined by the family law judge.

Parties can agree that child support or spousal support payments can be paid in some way other than through a wage garnishment. if a wage garnishment has already been ordered before the parties reached an agreement to pay support other than through a wage garnishment they can ask the court for the wage garnishment to be stayed (put on hold). If a debtor does not follow the payment agreement then the payee may seek a wage garnishment, or, if there is a wage garnishment that has previously been stayed, for the stay to be lifted.

Important: If the reason a debtor cannot pay child or spousal support is due to lost employment or loss of income, the debtor should seek a downward modification of support. The debtor is responsible for the full amount of child support or spousal support until the court orders a different amount. See Modification of Court Orders for more information.

Note: Child support is deducted before spousal support when both child support and spousal support are subject to a wage garnishment.

When DCSS is involved

When the local child support agency (LCSA) or the Department of Child Support Services (DCSS) is involved in a child support case that respective government agency usually issues a wage garnishments without considering whether or not a wage garnishment is in the payee’s best interest (as opposed to other available legal remedies).

Note: DCSS is an over-burdened, underpaid, bureaucratic, government agency with overworked and underpaid lawyers that primarily represent the government’s interest in collecting reimbursement monies from parents who should have, but failed to, provide health insurance for their child or children. DCSS almost always chooses a wage garnishment over other available legal remedies even when other legal remedies might be better for the payee (as opposed to better for the government). If possible, seek the advice of a family law attorney independent of DCSS to learn the benefits and detriments of a wage garnishments in comparison to other legal remedies.

Quashing, Canceling, or Objecting to Wage Garnishment

An employee has up to ten (10) days from the day that his or her employer received the wage garnishment (Income Withholding Order [IWO]) in which to object to the payee’s wage garnishment request. The debtor may object to a wage garnishment request under one of the following situations:

  • There is a prior agreement to pay spousal support directly to the payee without the need for a wage garnishment,

or all of the following apply:

  • The debtor made timely and full payments for at least twelve (12) months without an earnings assignment (wage garnishment) in place; no back support is owed (arrears); the wage garnishment would cause undue hardship; and, when child support is included, it would be in the children’s best interest to cancel the wage garnishment.

Note: Failure to pay court ordered child support or spousal support can lead to any of the following: garnished wages (earning assignment), contempt of court, modification of court orders, civil penalties (with statutory interest on arrears ranging from six (6) percent a month to ten (10) percent year…compounded!), negative credit rating, liens on property, bank accounts, tax refund, or lottery winnings, suspension or revocation of a professional license (doctor, dentist, lawyer, etc.), denial of U.S. passport, and more.

To learn more about garnishing wages (earnings assignments) in child support or spousal support cases contact our divorce and family law attorneys today for a free consultation. Call today!

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