A child support order is only an order. It is not the actual child support. In order to get the actual child support put into your bank account, the child support amount, typically, has to be withheld from the child support obligor’s paycheck.
The child support order can be properly noticed to the child support payor’s employer and then the child support payor’s employer can deduct the child support from the payor’s check and forward it to the child support recipient.
This is all straight forward…so long as the child support payor’s employer cooperates. When the child support payor’s employer does not forward the deducted child support, the child support recipient has many avenues to enforce child support payments and punish the uncooperative employer.
Letting The Employer Know They Must Deduct Child Support
Every Illinois order for child support, in fact, “[r]equire[s] an income withholding notice to be prepared and served immediately upon any payor of the obligor by the obligee.” 750 ILCS 28/20(a)(1)
The only way child support will NOT be withheld from the child support payor’s paycheck is if the parties have an agreement that the child support payor pays directly. Even then, the court must still approve direct payments of child support.
Withholding child support from a paycheck is mandatory in Illinois “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)
The Illinois Withholding Notice is a standard form which can be served to the child support payor’s employer in a variety of ways.
“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)
The child support payor should also get a copy of the Income Withholding Notice.
“At the time of service on the payor and as notice that withholding has commenced, the obligee or public office 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)
There is no need to file the Income Withholding Notice with the circuit clerk of the county unless the Income Withholding Notice is being challenged.
“A copy of an income withholding notice and proof of service shall be filed with the Clerk of the Circuit Court only when necessary in connection with a petition to contest, modify, suspend, terminate, or correct an income withholding notice, an action to enforce income withholding against a payor, or the resolution of other disputes involving an income withholding notice.” 750 ILCS 28/20(g)
The Employer’s Duty To Deduct And Forward Child Support In Illinois
“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)
Failure to “deduct and pay over income” can result in severe penalties for the employer. The mere failure to “deduct and pay over income” after proper notice and 7 days is sufficient to establish that the employer did so intentionally.
“The failure of a payor, on more than one occasion, to pay amounts withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor creates a presumption that the payor knowingly failed to pay over the amounts.” 750 ILCS 28/35(a) (emphasis mine)
Once a knowing failure to withhold child support has been established, the penalty can be calculated.
“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)
That $ 100 a day penalty is for EACH TIME the employer failed to deduct child support from the child support payor’s check.
“The $100-per-day penalty is assessed for each violation of the Withholding Act. A separate violation occurs each time an employer knowingly fails to remit an amount that it has withheld from an employee’s paycheck. To illustrate: If an employee is paid weekly, and the employer fails to remit child support withheld from the employee’s paycheck in week one, the employer is subject to a penalty at the rate of $100 per day. If the employer also fails to remit the next support payment withheld in week two, and the first payment is still outstanding, the employer is subject to two $100 penalties each day that both payments remain outstanding.” In re Marriage of Miller, 879 NE 2d 292 – Ill: Supreme Court 2007 (citations omitted)
For further example, if an employee was paid once a month and doesn’t pay for two months, the employer would be subject to $ 9000 of fines ($100 X 60 for the first failed deduction and $100 X 30 for the second failed deduction). The fines would keep building after every failed deduction.
No single failure to deduct can result in a fine higher than $ 10,000 however.
“The total penalty for a payor’s failure, on one occasion, to withhold or pay to the State Disbursement Unit an amount designated in the income withholding notice may not exceed $10,000.” 750 ILCS 28/35(a)
Continuing failures to deduct over the course of a year for an employee who is paid biweekly (26 paychecks a year) could result in $ 260,000 of fines.
Most deadbeat parents wouldn’t even owe a fraction of the possible $ 260,000 in fines. How is it fair to punish the employer in multitudes more than what is truly owed.
“[T]he penalty is justified on the basis that noncompliance with a child support withholding order by an employer may place a substantial burden on a child support obligee, who could be forced to miss mortgage payments or postpone purchasing necessities for a child until the overdue payment arrives. Without the penalty, an employer may be tempted to not timely forward withholdings in order to use those funds to its advantage, such as, to support its business operation or to allow money invested to yield a higher return.” Grams v. Autozone, Inc., 745 NE 2d 687 – Ill: Appellate Court, 3rd Dist. 2001
The employer penalty is limited in that you can only look back one year to penalize a non-compliant employer for failure to deduct and deliver child support.
“An action to collect the penalty may not be brought more than one year after the date of the payor’s alleged failure to withhold or pay income.” 750 ILCS 28/35(a)
An employer will only be held accountable for the penalty fees if they purposely failed to withhold and deliver the child support per the notice.
“[P]enalties provided for by…[the] Withholding Act should only be imposed on those employers who purposely disregard a court’s support order.” In re Marriage of Solomon, 29 NE 3d 560 – Ill: Appellate Court, 1st Dist., 3rd Div. 2015
Even not following the order precisely can result in a penalty. An employer was deemed penalizable when employer withheld the proper amount from the employee’s paycheck every week, the employer mailed the checks only once a month. Dunahee v. Chenoa Welding & Fabrication, Inc., 652 NE 2d 438 – Ill: Appellate Court, 4th Dist. 1995
Every case will be judged on its own merits. For example, “if the [child support remitter] check was not written or mailed within the seven business days it [can be deemed] an oversight and not a knowing violation of the Support Act.” Thomas v. Diener, 814 NE 2d 187 – Ill: Appellate Court, 4th Dist. 2004
Including The Employer In Your Illinois Divorce Or Parentage Action
“This penalty may be collected in a civil action which may be brought against the payor in favor of the oblige” 750 ILCS 28/35(a)
“The court may join additional parties necessary and proper for the exercise of its authority under this Act.” 750 ILCS 5/403(d)
Either party can bring in additional parties to a lawsuit (whether it is a family law matter or not).
“If the plaintiff desires to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he or she been joined originally as a defendant, the plaintiff shall do so by an appropriate pleading.” 735 ILCS 5/2-406(b)
“Within the time for filing his or her answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiff’s claim against him or her.” 735 ILCS 5/2-406(b)
The employer has to be served in order to be under the divorce or parentage court’s jurisdiction. Once the employer is made a party to the divorce or parentage case, the employer must respond or be held in default.
Out-Of-State Employers And The Penalty For Failure To Deduct and Remit Child Support
People that do not like to pay child support like to move very far away from their kids. The vigorous $100/day penalties do not apply out of state. Instead, the employer can only be punished under their own state’s laws for failure to deduct and forward child support.
“[The Uniform Interstate Family Support Act] establishes a uniform procedure for enforcing an out-of-state child support order. However, it uniformly directs the employer-violator to the law of its State for the appropriate sanction.” In re Marriage of Gulla and Kanaval, 917 NE 2d 392 – Ill: Supreme Court 2009
Don’t get mad, get even. Take everyone, including your ex’s employer, to court and get that child support paid…along with possibly several $ 10,000 penalties. Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois family law attorney.