One of the easiest ways to enforce a Child Support Order is by way of wage garnishment also known as wage assignment. Â In California (and in all states in the U.S.), the law allows for the garnishment of wages for payment of child support. But what exactly is wage garnishment, and how does the process work?
What is wage garnishment?
Wage garnishment is a means of collecting a monetary judgment against a defendant by ordering a third party (like an employer) to pay the money directly to the plaintiff, which was otherwise owed to the defendant. In other words, if someone fails to make their child support payments, the state has the right to garnish that personâ€™s wages through their employer, or through other means.
The California Department of Child Support Services sets forth the various types of earnings that can be used toward child support payments:
- Wages, salary, tips, bonuses, vacation pay, retirement pay, regular overtime, and commissions.
- Payments due for services of independent contractors, interest, dividends, rents, royalties, residuals, patent rights, or mineral or other natural resource rights.
- Payments or credits due or becoming due as a result of written or oral contracts for services or sales whether denominated as wages, salary, commission, bonus, or otherwise.
- Payments due for workersâ€™ compensation temporary disability benefits.
- Any other payments or credits due or becoming due, regardless of source.
If the garnished wages do not cover the entire amount that the obligator owes, the custodial parent may seek other ways of obtaining the unpaid support by property seizure. This includes cars, motorcycles, boats, houses, corporate stock, rents, and more.
Levels of Garnishment:
There are typically three levels of wage garnishment, depending on a few factors:
- 50% if supporting another family.
- 60% if not supporting another family.
- 65% if the obligator is more than 12 weeks delinquent in making their child support payments.
The obligator is protected by law from being terminated over one wage garnishment order, even if the order is invoked numerous times. However, if one additional collector tries to garnish his or her wages, the employer has a right to fire them. Also, any employer in California who has discriminated an employee or refuses to hire a job applicant because they are subject to a child support order may receive up to $500 in civil fines.
In addition, the obligator will need to be notified in advance the amount that will be withheld, when the garnishment will begin, and how he or she can contest the order. If they wish to object to the garnishment order, they can request a hearing to determine the validity of the order. After the hearing, the state must notify the obligator and their employer of the final decision with 45 days. However, in most cases, you can only contest the order if you believe a mistake has been made regarding the amount or your identity.
An obligator may also apply to the court to request a lower garnishment if they can prove that they need the money being garnished to support themselves or their family, which is known as the â€œnecessaries of lifeâ€ exemption. This exemption includes things like shelter, food, clothing, and basic medical care.
Responsibilities of the Employer
What happens if the employer does not comply with the wage garnishment order? Letâ€™s say the obligator works for a small business, where the employee has a friendly relationship with their employer, and the employer feels that the withholding is just too much. Or, the employer simply â€œdoesnâ€™t want to get involved.â€
Complying with a wage garnishment order is the law, and any employer who fails to comply will be liable for the outstanding amount, plus interest. The California Department of Child Support Services states, â€œWillful failure by an employer to comply with an assignment order is punishable as contempt. In addition, an employer who fires, disciplines, or refuses to hire an employee based upon income withholding may be assessed additional civil penalties.â€
Once the employer is served with a wage assignment order, the employer has 10 days within which to start deducting money from the next paycheck of the support obligator. If a child support agency is already involved in the case, then the wage assignment order is sent to the employer within 15 days of the date the agency locates the employer. After receiving the order from the agency, the employer must send the deducted wages to the agency within 10 days.
Failure to comply with a wage garnishment order, either by the obligator or the employer, carries serious consequences.
Exceptions to Wage Garnishment
Sometimes, wage garnishment is not an effective means of collecting outstanding child support payments. For example, other measures will have to be taken in the following circumstances:
- When the obligator is not employed.
- When the obligator is self-employed.
- When the obligator does not maintain employment long enough for all of the garnishment orders to take effect.
In these situations, there are various other methods of collecting back child support, like suspending the obligatorâ€™s driverâ€™s license, garnishing federal tax refunds, levies against bank accounts, or even contempt of court orders, which may result in fines or jail time.
Benefits of Wage Garnishment
For the Recipient of the support order:
After a divorce or dissolution, the well-being of any children involved is the top priority. With Californiaâ€™s high cost of living, it can be difficult maintaining a decent standard of living with only one parentâ€™s income. Thatâ€™s why wage garnishment laws are so important and are designed to protect the best interests of the child. Otherwise, children may be at risk of becoming wards of the state, which often has many negative consequences for the child.
In fact, in California, wage garnishment for child support takes precedence over other wage garnishments. For example, if an employee is subject to wage garnishment and the employer receives a court order to garnish wages for child support, the other garnishment will have to be placed on hold until the child support debt has been dealt with.
For the Paying Parent:
It is generally beneficial to the paying parent to have a wage assignment filed for the collection of any support owed. Â California requires that all garnished wages be paid to the State Disbursement Unit which, in turn, forwards the money to the receiving parent. Â The State Disbursement Unit keeps impeccable records which becomes very beneficial when, at some future date, the receiving parent claims underpayment or no payment. Â It is legally the responsibility of the paying parent to prove that he has complied with a support order. Â Many times when a claim of failure to pay or short payment is made many years down the road, the records to “prove up” your payments may be scattered or even non-existent. Â Inability to prove payment is equivalent to non-payment however when payments are garnished and paid through the State Disbursement Unit a request for an “Audit” is simply accurate and acceptable proof to the court.
Wage garnishment laws in California ensure that the child is receiving the necessary care throughout the duration of their youth.
Call Fischer & Van Thiel, LLP at Â 760-722-76669. We are a California law team who delivers exceptional legal representation for all of your Child Support needs.