Wage Garnishments (Assignment Orders)

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’s) unpaid court ordered child support or spousal support.

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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.

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For example, if a business owner receives a wage garnishment notice (court order), which informs the employer that he or she must keep a portion of his or her employee’s income from the employee, and the business owner thereafter willfully disobeys that court order, then the business owner could be found to be in contempt of court.

 

Also, if the owner of the business is the person whose wages are garnished, and he or she does not keep his or her own wages aside per the court’s order, then the business owner could be found to be in contempt of court.

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Note: The term wage garnishment is sometimes referred to in family law court as either a wage assignment, earnings assignment, income earnings assignment, or withholding order. All of these terms share very similar, but not exact, definitions. The garnishment of wages, or the “withholding” of wages (income) is the act of keeping the wages from the employee. The assignment of wages (income) is the act of giving another person the right to receive the wages (income, earnings, salary, etc.).

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Obtaining a Wage Garnishment

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

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For example, if a family law judge orders wife to pay her ex-husband spousal support, then wife will usually be given an opportunity to comply with the court’s order to pay spousal support without the issuance of a wage garnishment (opportunity to comply with court’s order). However, if wife refuses to pay spousal support as ordered, then her ex-husband may seek a court-ordered wage garnishment against husband.

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Note: As stated, a person will usually be given an opportunity to pay child support or spousal support (alimony) without ordering a third person (employer) to garnish the non-paying party’s income. But, in some cases, a judge may allow a wage garnishment to issue even before the paying party is given an opportunity to comply with the court’s order (i.e. business is dissolving, employee cannot be found, etc.).;

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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.

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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 all legal detriments, which are associated with each legal remedy.

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Where to Start: Before a family law litigant may have a wage garnishment ordered, the court will usually require the requesting party to show that a wage garnishment is necessary because the debtor has willfully failed to pay 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.

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Note: 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.

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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).

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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.

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Note: 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. In this context, “stayed” for good cause means that the employee debtor does not have to pay, as a withholding, unless and until some subsequent condition arises (i.e. passage of time, future violations of the court’s order, etc.).

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Self-Employed & Independent Contractors

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For self-employed debtors, the rules regarding wage garnishment do not change. In other words, a self-employed person may be ordered to withhold his or her own income in order to pay a wage assignment. Of course, proof of compliance with the court’s wage garnishment order can be more difficult in self-employed debtor cases. This is especially true where self-employed persons subject to a wage garnishment have a fluctuating income. On the other hand, anyone caught falsifying income for purposes avoiding wage garnishments, could face severe criminal penalties, including penalties for felony perjury and felony tax evasion.

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Note: The process of collecting legal documents from an opposing party in a legal dispute is known as “discovery.” Family law lawyers (and judges) have experience in obtaining the true income of self-employed persons suspected of concealing income and/or assets. When a self-employed person is determined to conceal his or her true income, the discovery process will usually uncover the debtor’s deception. Once true income and/or assets are discovered, the court will likely penalize the debtor more than the court would have if the self-employed person did not otherwise attempt to conceal his or her true income and/or assets.

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Special Cases: Sometimes an employee has a fluctuating income and the fluctuation is unknown to the payee (i.e. service industry tip calculation fluctuation [food server, bartender, hair dresser, etc.], open salaried employee with fluctuating work schedule, 1099 contractors who do not report employment, service for service employees, etc.). Employers that employ these types of employees should do the best they can to completely comply with the withholding order. But if the employer does not know, or reasonably could know, the exact income of his or her employee, then there is not much else that employer can do to comply with the withholding order. In these types of cases, it is up to the lawyers, and the lawyers' investigators to discover the true income of the employee.

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Wage Garnishment Agreement

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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, then the parties can ask the court for the wage garnishment to be stayed (put on hold).

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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.

 

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

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When DCSS is Involved

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When either 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).

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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. This is true 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.

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Quashing, Canceling, or Objecting to Wage Garnishment

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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:

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

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or all of the following apply:

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• The debtor made timely and full payments for at least twelve (12) months without an earnings assignment (wage garnishment) in place;

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• No back support is owed (arrears);

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• 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.

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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 a year, compounded!), negative credit rating, liens on property, liens on bank accounts, liens on tax refund(s), liens on lottery winnings, suspension or revocation of a professional license (doctor, dentist, lawyer, etc.), denial of U.S. passport, and more.

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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. Our lawyers are well versed in all family law issues, including child custody, child support, child visitation (parenting time), guardianship, conservatorship, fathers’ rights, juvenile dependency hearings, child protective service (CPS) defense, annulments, grandparents’ rights, and more. Call today!

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909-307-2645

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