It is relatively easy to put a wage withholding order to work for you. After you have located the payor, you can begin planning the best method to collect past due child support. Your first step should be to determine where the payor is employed. Fortunately, once you locate the payor and his or her place of employment, you are well on your way to getting a wage withholding order started. You need only make arrangements for automatic wage withholding from the payor’s paycheck.
Wage withholding is perhaps the easiest way to begin getting regular payments. This collection device has been universally available since 1984, when congress passed a law mandating all states to put automatic wage withholding for child support into effect by Oct. 1, 1985. For child support orders entered before Nov. 1, 1990, automatic wage withholding is available when the payor owes an amount equal to 30 days of child support payments.
Immediate wage withholding
For child support orders entered after that date through state agency action, immediate wage withholding is available. Immediate wage withholding is available for all child support orders entered after Dec. 31, 1993, unless the parents agree to a different arrangement. You may take advantage of wage withholding yourself, through a child support collection agency or with the assistance of your lawyer.
Maximum amount of wages that can be withheld
The amount of wages that may be withheld varies, depending on whether the payor has a second family to support. If so, the maximum amount that may be withheld is 60 percent of disposable earnings. If the payor does not have a second family to support, the maximum amount that may be withheld is 50 percent of disposable earnings. Disposable earnings are calculated in various ways by each state, but they typically are defined as gross wages, less deductions for taxes and other valid employment-related deductions.
Priority of wage withholding actions
If another creditor has a judgment against the payor and attempts to garnish the payor’s wages, that creditor will have to wait until your child support payments are satisfied before being entitled to any money through garnishment. In other words, your child support order has priority because federal law has mandated collection of child support payments to be more important than collection of other debts.
You should also keep in mind that your state may be one that has broadened wage withholding to include not only wages but things such as employment bonuses, unemployment compensation, workers’ compensation, disability benefits and retirement benefits.
If the payor made sporadic payments and appears to have missed payments primarily through aloofness, rather than a refusal to pay, you should suggest that the payor ask his or her employer for voluntary wage withholding. That way, your child support payments are deducted from the payor’s paycheck in the same way as any other payroll deduction.
If voluntary wage withholding is in place, you don’t need to worry about sporadic use of wage withholding and the accompanying hassle related to requesting withholding every time the payor falls behind. Of course, because this is a voluntary arrangement, you should not make this request as a do-this-or-else demand.
Approach the subject with tact and strategy. When the payor falls behind, acknowledge that you realize he or she intended to make the payment on time, and that you understand that the payor is having difficulty finding time to sit down and write the check. After telling the payor how much your children appreciate all the past contributions, you could then suggest a voluntary wage withholding to eliminate the hassle of check writing and mailing every month. The accounting burden is placed in the payor’s employer’s hands.
Of course, this discussion about wage withholding will mean nothing to you unless you are first able to find out where the payor works. The manner in which you conduct your search for the payor’s source of income will depend on whether the payor works for someone else or is self-employed.
Payors who work for someone else
In 1996, congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (also known as the 1996 Welfare Reform Act). This is the new child support law that you may have heard about. The act contains provisions that make locating the place of employment of a payor who works for someone else very easy. It imposes a mandate on states to create a “new hire directory” by Oct. 1, 1997. All employers will be required to furnish the directory with a report containing the name, address and Social Security number of the employee no later than 20 days after the employee is hired. The report is made on a W-4 form, which is simply mailed to the office in charge of the directory. The State Directory of New Hires must enter the employee information in its database within five days after it is received.
Each state is required to have a matching system in place through which the Social Security numbers in the State Directory of New Hires are compared to the Social Security numbers of those who are delinquent in their child support obligation. If the comparison reveals a match (meaning the person who owes support has recently gone to work for a new employer), the State Directory of New Hires must report it to the agency charged with collecting child support, along with the information about where the payor has gone to work.
All this sounds like a dream come true to a parent who has been trying to collect past-due child support. But it gets better. The new law also requires the state agency in charge of enforcing child support orders to transmit a notice to the payor’s employer directing the employer to withhold an amount equal to the monthly child support obligation from the payor’s wages. This transmittal must occur within two days of the information regarding a newly hired employee being entered into the State Directory of New Hires. The new law also requires the creation of a National Directory of New Hires.
Information entered into the new hire directories may also be made available for use in locating payors, establishing paternity and enforcing and modifying child support orders. The new law also allows the agencies in charge of administering employment security and workers’ compensation programs to have access to the new hire directories. This is important because income withholding is broader than you might typically think. Income includes workers’ compensation payments, disability payments and payments to a pension or retirement program. These additional sources of income, along with other types of assets, may be seized by child support collection agencies.
Payors who are self-employed
The location and collection tools certainly are helpful, but what if the payor is self-employed? Unfortunately, the answer is that many of the important tools created by the 1996 Welfare Reform Act will not be available to you. Don’t let that deter you. With a little hard work and creativity, you may still be able to locate the payor’s income sources and get support collected for your children. Indeed, you can at least take comfort in the fact that once you find the payor, your search is over. You don’t have to begin a new search geared toward finding the payor’s employer.
When collecting child support from a self-employed payor, your first step after locating the payor will be to confirm that he or she is engaged in a certain line of work. If you were married or had a long-term relationship with the payor, you are probably well aware of the type of work he or she would be pursuing to earn a living. Verifying the payor’s line of work may be as simple as driving by his or her house. If he or she was trained as a plumber and there is a van, with the name Payor’s Plumbing painted on the door, parked in the driveway, you can safely guess this is the current occupation of the payor.
In less obvious cases, you may need to do some in-depth investigating. Try to do as much of this as possible by calling friends and relatives who may know what the payor is doing to earn a living. If these attempts fail, you will probably need to hire a private investigator to follow the payor and discover his or her source of income based on whom he or she is associating with.
Try not to stake out the payor yourself, or follow the payor around in hopes of finding out his or her income source. This type of conduct can lead to serious, or even violent, domestic disputes. There may be times, though, when you can do some investigating on your own and, in fact, have no other choice because you can’t afford to hire a professional. If so, use discretion and don’t let your investigating become an obsession.
Play your best cards
Many people who try to collect child support from a self-employed payor play the wrong cards. They try to collect by garnishing money owed to the payor by the payor’s clients or customers. This is a difficult way to collect child support, because it is difficult to find out who owes money to the payor. It does have one advantage in that it gives you some leverage, because the payor may not want customers to know that he or she is behind on child support. Consequently, just the threat of garnishment may scare a delinquent self-employed payor into making payments.
A better collection strategy when dealing with a self-employed payor is to take a broad approach. You should not only garnish but also make an effort to discover the payor’s assets and then take action to have them sold to satisfy past-due child support. The reason that property liens are so effective when collecting from self-employed payors is that these people often purchase business-related property with their earnings in order to expand their business. Sometimes, these business-related assets are exempt from sale to satisfy a debt, but the exemption is limited in many states to a specified dollar amount that is easily exceeded if the payor is successful in business.
Liens may be placed on either real estate or personal property. One good thing about a lien is that the payor cannot usually sell the property if it is subject to a lien. In other words, if the payor wants to sell his or her house, the payor will have to pay off your child support lien before doing so. Another good strategy when dealing with a self-employed payor is to locate a bank account and garnish it. Your local child support enforcement agency caseworker may be able to assist you in locating bank accounts.
One child support collection technique that is less likely to bear any fruit when dealing with a self-employed payor is an interception of tax refund money. The reason is that self-employed payors rarely receive tax refunds. They typically make quarterly estimated tax payments that do not cover their actual tax burdens, which means that they usually owe taxes at the end of the year, rather than receive refunds.
Most child support enforcement workers will tell you that self-employed parents are the most difficult to collect child support from. This is puzzling, given that they have the most to lose by failing to pay child support. Their failure to pay can ultimately destroy their businesses or their good reputations. If you are trying to collect from a self-employed payor, make sure that he or she knows of these risks. But when you make your point, try to subtly emphasize the consequences of failing to pay, rather than lashing out at him or her.
Use a messenger
Often, using a messenger can be effective. For example, you could tell the payor’s business partner, or perhaps an employee, that you had been to the local child support enforcement agency and were surprised to learn how many tools that office had to collect child support, such as garnishments, liens, tax intercepts and obtaining credit reports. You could add that you heard business-owners who fail to pay child support may have a hard time getting a loan because the unpaid child support shows up on a credit report. Finally, you could end the conversation by saying that you don’t want anything like that to happen to your ex, but money is tight and you cannot make ends meet much longer.
Whether the payor is self-employed or employed at a job paying regular wages, it will be very important to continually keep track of the extent of the payor’s earnings. If the payor’s wages increase, you may be able to increase child support payments. As long as the payor continues to earn income and you know his or her location, you should be able to collect child support. But if payments are not made, and wage withholding or other collection methods don’t work, more forceful action may be necessary.
Note: The article above may not contain current information.