One of the easiest ways to enforce a child support order is by issuing a wage garnishment also known as a wage assignment. In California 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 the process of collecting a judgment against a support obligor by ordering a third party (like an employer) to pay the money directly to the supported party, from the obligor’s paycheck. In other words, if someone fails to make their child support payments, the state has the right to garnish that person’s wages through their employer, or through other means.
The California Department of Child Support Services sets forth various types of earnings that are considered income to be used toward child support payments. They include:
- 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 and 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 workers’ 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 supported party may seek other ways of obtaining the unpaid support seizing property, such as cars, motorcycles, boats, houses, corporate stock, rents, and more.
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 against an employee or refuses to hire a job applicant because they are subject to a child support order may receive up to $500 in fines.
In addition, the obligator has a right 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 “necessaries of life” 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?
Let’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 “doesn’t want to get involved.”
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, “Willful failure by an employer to comply with an assignment order is punishable as contempt.”
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. 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, sometimes the obligator is not employed, is self-employed, or 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 obligator’s driver’s license, garnishing federal tax refunds, levying bank accounts, or even contempt of court orders, which may result in fines or jail time.
After a divorce or dissolution, the well being of any children involved is the top priority. With California’s high cost of living, it can be difficult maintaining a decent standard of living with only one parent’s income. That’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.
If you are owed past-due payments on support or you have a wage garnishment that has been filed against you, contact an attorney with Cage and Miles, LLP to discuss your options today.