June 1, 2020
Garnishing wages is not as easy as some think. This is a good thing, because we want obstacles before this process is put in place. Once it is in place, it takes time to remove a garnishment order, which is why some obstacles are good. Here are the basics of the process.
You need an order from the Court for child and/or spousal support. You then need to use that order to complete an Income Withholding for Support (“IWO”), the wage garnishment order, and submit it to the Court for the Judge’s signature. Best practice is to have the IWO ready at the time of your support hearing so that that Judge can sign it on the spot; otherwise, you need to submit it via messenger or mail and wait for the Judge to sign it and send it back. This could take weeks. The support orders should also be in place for a while before you secure an IWO. For example, you may not want to secure an IWO if your support matter is continued out for a few months or weeks pending an investigation, appointment of minor’s counsel or some other reason that may impact the numbers and percentages used for calculation of support.
For the payor spouse, you need the employer’s address as well as his or her social security number. Where the IWO’s get tricky is in calculating the “Amounts to Withhold.” The IWO asks for amounts to withhold for the weekly pay period. Take the total amount of support owed for the year and divide by 52 weeks. For the biweekly amount to withhold, take the total amount of support owed for the year and divide by 26 for the 26 bi-weekly pay periods because in some months the payor spouse may receive two paychecks and in other months three paychecks. For the semimonthly amount to withhold, this is easy: just twice a month. The monthly pay to withold is easy to calculate as well: that is just the total amount of support owed for the month.
Next, the IWO must be served on the employer, which can be done by First Class mail as set forth in California Code of Civil Procedure section 1013. The burden is then on the employer to follow California Family Code section 5234, which states:
Within 10 days of service of an assignment orderor an order/notice to withhold income for child supporton an employer, the employer shall deliver both of the following to the obligor:
(a)A copy of the assignment orderor the order/notice to withhold income for child support.
(b)A written statement of the obligor's rights under the law to seek to quash, modify, or stay service of the earnings assignment order, together with a blank form that the obligor can file with the court to request a hearing to quash, modify, or stay service of the earnings assignment order with instructions on how to file the form and obtain a hearing date.
Where the IWO’s get tricky again is that all child support payments must go through the State Disbursement Unit. Why? As set forth in California Family Code section 5235(e), employers are required to send all withheld earnings – private as well as those enforced by child support agencies – to the State Disbursement collection and distribution unit instead of to the payee. Both payor and payee should visit www.childsupport.ca.gov and the frequently asked questions tab to set up appropriate accounts and arrange for direct deposit.
Pay periods may pass between the time when the IWO is secured and when it is served. This does not mean the paying party gets a “get out of jail free card” on paying support. The support must be paid to the payee spouse or parent directly until the IWO is in effect and the payments are coming from the State Disbursement Unit.
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