During or at the end of your divorce or parentage action, you may have a judgment and/or order which will instruct one party to pay the other party a sum of money for child support and/or maintenance (formerly known as alimony).
This order has the force of law. Both parties are bound to follow the order of support. But, how does that order get enforced?
If the obligor party does not pay, the other party can file a Petition For Rule To Show Cause and Indirect Contempt Of Court but that just means that the obligee has to go back to court for every missing or late payment. Going to court to enforce the payment probably costs more than the payment itself.
Chasing an obligor’s child support and maintenance payments every month is clearly ridiculous. So, Illnois law allows for the garnishment of the obligor’s pay to pay the court ordered support.
“[E]very order for support entered on or after July 1, 1997, shall…[r]equire an income withholding notice to be prepared and served immediately upon any payor of the obligor by the oblige” 750 ILCS 28/20(a)
What Is An Income Withholding Notice In An Illinois Divorce or Parentage Case?
An Income Withholding Notice is an alert to the employer of a child support or maintenance obligor that they must withhold a portion of their employee’s income pursuant to a separate child support or maintenance order. The withheld money must then be forwarded to the Illinois State Disbursement Unit which accounts for the payment and sends it to the receiving parent via direct deposit.
“The income withholding notice shall:
direct any payor to withhold the dollar amount required for current support under the order for support;” 750 ILCS 28/20(c)(2)
That’s it! At least the important part (how much to withdraw and from whom). There are a lot of different details but all you, the reader, need to know is that there is a line for each requirement on your county’s Notice Of Withholding form. I practice primarily in Cook County, Illinois so I would direct you the Cook County Notice of Withholding For Support Form as an example.
After the Notice of Withholding is filed with the clerk of your circuit court, a copy must be sent to employer (or payor if they somehow get money without working) via any process imaginable.
“The obligee or public office may serve the income withholding notice on the payor or its superintendent, manager, or other agent by ordinary mail or certified mail return receipt requested, by facsimile transmission or other electronic means, by personal delivery, or by any method provided by law for service of a summons” 750 ILCS 28/20(g)
Trust me, this is not the employer’s first Income Withholding Notice. The employer will know what to do. More importantly, the company that processes the employer’s payroll will know what to do with little, if any, argument.
Usually, every employer has a HR department that handles this sort of thing. A quick phone call will tell you where to send the notice of withholding. A list of all federal HR departments can be found here.
A copy of the notice of withholding that was sent to the employer must also be sent to the obligor.
“[T]he obligee…shall serve a copy of the income withholding notice on the obligor by ordinary mail addressed to his or her last known address.” 750 ILCS 28/20(g)
How Do You Contest Income Withholding?
If the obligor does not want the money to come out of their check, they don’t really have a choice. The obligor can only contest withholding under very narrow circumstances.
“The obligor may contest withholding commenced under this Section by filing a petition to contest withholding with the Clerk of the Circuit Court within 20 days after service of a copy of the income withholding notice on the obligor. However, the grounds for the petition shall be limited to a dispute concerning:
(1) whether the parties’ written agreement providing an alternative arrangement to immediate withholding under subsection (a) of Section 20 continues to ensure payment of support; or
(2) the identity of the obligor” 750 ILCS 28/30(c)
Because most withholding occurs after the obligor has fallen into arrears and can no longer be trusted to pay on time “it shall not be grounds for filing a petition that the obligor has made all payments due by the date of the petition.” 750 ILCS 28/30(c)
“[T]he obligee or public office may prepare and serve upon the obligor’s payor an income withholding notice that:
contains the total amount of the unpaid arrearage or delinquency as of the date of the notice; and
directs the payor to withhold, as a periodic payment toward satisfaction of the unpaid arrearage or delinquency, the total of:
- the periodic amount required to be paid as current support immediately prior to the date the current support obligation terminated under the order, or by the child becoming emancipated by age or otherwise, and
- any periodic amount previously required for satisfaction of the arrearage or delinquency.” 750 ILCS 28/32(a)
So, support does not go down until the entire arrearage is paid. Even the additional arrearage penalty surcharge must still be paid.
What Is The Maximum Withholding For Child Support In Illinois?
The maximum withholding is whatever the child support order says it is. In Illinois, child support is based on the income of the support payor and the income of the support receiver. The support will be a portion of the income of the payor.
Illinois law does not limit the amount of money which may be deducted from a check for child support. Federal law, however, does set limits of 50% of disposable income if a parent is supporting a spouse or other child and 60% if there is no additional family to support
“The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed—
(A)where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and
(B)where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.” 15 U.S. Code § 1673(b)(2)
Is Garnishment For Child Support Or Maintenance Mandatory in Illinois?
Income withholding is not mandatory in Illinois. If the parties agree, no money will be taken directly from the child support and/or maintenance obligor’s check.
“[E]very order for support entered on or after July 1, 1997, shall…[r]equire an income withholding notice to be prepared and served immediately upon any payor of the obligor by the oblige…unless a written agreement is reached between and signed by both parties providing for an alternative arrangement, approved and entered into the record by the court, which ensures payment of support.” 750 ILCS 28/20(a)(1)
That agreement must contain a clause saying that if a payment is missed, a notice of withholding will be prepared and entered with the court. That income withholding notice must be served on the obligor.
“In [the case of an agreement to not withhold support from a paycheck], the order for support shall provide that an income withholding notice is to be prepared and served only if the obligor becomes delinquent in paying the order for support.” 750 ILCS 28/20(a)(1)
But, the agreement can also waive service on the obligor and thus remove an impediment to enforcement of support.
“If the order for support, under the exception to immediate withholding contained in subsection (a) of this Section, provides that an income withholding notice is to be prepared and served only if the obligor becomes delinquent in paying the order for support, the obligor may execute a written waiver of that condition and request immediate service on the payor.” 750 ILCS 28/20(f)
In reality, service isn’t really that important. An employer who receives a notice of withholding isn’t going to say “well, my employee wasn’t served so I’m not going to withhold his or her support.” Furthermore, the obligor isn’t going to rush into court to say “I was never served,” because they will just be served in that same court. Plus, the obligation remains whether they have been served or not.
What If The Employer Doesn’t Withhold Income For Child Support and/or Maintenance?
Once the employer receives the Income Withholding Notice, they are bound by law to follow it.
“It shall be the duty of any payor who has been served with an income withholding notice to deduct and pay over income” 750 ILCS 28/35(a)
If the employer does not deduct and transfer that payment over to the Illinois State Disbursement Unit, the employer is going to be in big financial trouble.
“If the payor knowingly fails to withhold the amount designated in the income withholding notice or to pay any amount withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor, then the payor shall pay a penalty of $100 for each day that the amount designated in the income withholding notice (whether or not withheld by the payor) is not paid to the State Disbursement Unit after the period of 7 business days has expired.” 750 ILCS 28/35(a)
More typically, the employer does not forward the support because the employee no longer works there. In that case, “[w]henever the obligor is no longer receiving income from the payor, the payor shall return a copy of the income withholding notice to the obligee or public office and shall provide information for the purpose of enforcing this Act.” 750 ILCS 28/35(a)
When an obligor gets a new job, the Income Withholding Order must be sent to the new employer. Typically, the obligor provides it to the new employer so they don’t fall behind on their support. But the person who receives the support should send a copy to the new employer just be sure.
If the obligor has multiple income withholding orders (as in, numerous mothers of various children), the employer has to do their best to pay everyone with what’s available.
“If the payor has been served with more than one income withholding notice pertaining to the same obligor, the payor shall allocate income available for withholding on a proportionate share basis, giving priority to current support payments” 750 ILCS 28/35(c)
Maintenance and Withholding In Illinois
Income withholding orders specifically “direct any payor to pay over amounts withheld for payment of support to the State Disbursement Unit.” 750 ILCS 28/20(c)(12)
The Illinois State Disbursement Unit is a public entity that helps collect, distribute and account for child support throughout Illinois. The Illinois State Disbursement Unit is not in place to help wealthy ex-spouses collect their maintenance (formerly known as alimony).
When the amount withheld is for child support and maintenance, the Illinois State Disbursement Unit will be happy to forward the joint child support/maintenance payment. But, the Illinois State Disbursement Unit will NOT process maintenance payments without a child support element.
”[O]rder for support” shall not mean orders providing for spousal maintenance under which there is no child support obligation.” 750 ILCS 5/507.1(a)(1)
While the Illinois income withholding order is explicit that SDU be used for processing support payments, the statute allows for withholding so long as SDU is not involved.
“Order for support” means any order of the court which provides for periodic payment of funds for the support of a child or maintenance of a spouse, whether temporary or final” 750 ILCS 28/15
So, try your best with the Illinois Withholding Order for a pure maintenance case…just don’t let SDU process the withholding.
The alternative to income withholding for a receiver of maintenance is to ask the court to order that the obligor enroll in a regular direct deposit from the obligor’s checking account to the oblige that coincides with the maintenance payor’s regular receipt of their pay.
If the maintenance payor does not enter into a direct deposit or does enter into direct deposit arrangement and, subsequently, does not pay, the options for enforcement are harsh.