Non-Payment of Child Support And Garnishment
The custodial parent in a California divorce can seek a child support wage garnishment order if the delinquent parent has failed to make support payments. Wage garnishment is a highly effective way to collect child support payment dues in such cases.
The courts in California can seize almost any types of personal assets and income of the delinquent parent, including wages from their employer, in order to collect child support dues. Following a court order for wage garnishment, the delinquent parent’s employer will withhold a part of their wages. This withheld amount will be sent to the state, which will transfer it to the custodial parent.
Role of the Employer
Once a California court had issued a child support wage garnishment order, the employer has a legal obligation to enforce it against the employee. The order will inform the employer about the exact amount to be withheld from each month’s paycheck of the employee. The employer will be instructed to transfer that amount each month the State Disbursement Unit (SDU), which in turn will transfer it to the custodial parent.
payments are taken out from the paycheck at source. Child support dues are often paid in this manner in California. If additional wage assignments against the employee are in place, first priority is given to child support deductions before any other withholding order can be addressed. Alimony comes second after child support in the priority list of wage assignments.
Following the wage assignment, the employer gets 10 days before they begin withholding payments from the employee’s next paycheck. The deducted amount must be sent out to the SDU within 10 days. The employer cannot directly send the payments to the custodial parent.
Cancellation of Wage Assignment Order
Once the employer receives the wage assignment order, they will provide a “Request for Hearing” form to you. You have a right to complete this form and request for a hearing regarding your wage assignment. You can give your reasons on this form why you want to avoid wage garnishment. Some of the potential reasons for requesting the wage assignment order to be set aside include:
- It is a case of mistaken identity (you are not the person who has been ordered to pay child support).
- You have reached an agreement with the custodial parent that you will directly make the child support payments.
- You have been making timely child support payments for the last one year without a wage assignment, you have no arrears in child support, it would be in the best interests of your child to set aside the wage assignment, and a wage assignment is likely to cause you undue hardship.
You can also obtain a stay on the wage assignment order from the court if the reason for your non-payment of child support is that your checks to the custodial parent have been non-delivered for the last six months due to wrong address (and the other party failed to notify you of the change of address).
How to Determine Child Support Arrears?
In some situations, it is possible that your calculation of the total amount of child support arrears (back support) may differ from that of the other party. In these cases, you may request for a thorough accounting exercise to be performed if you believe that the claim of child support dues from the custodial parent is incorrect.
Your local child support agency in Orange County is obligated to provide you proper accounting for all support payment collections and their disbursement. Once you review the accounting from the agency and you disagree with their accounts, you can approach the court to request for a determination of child support arrears.
You should work with a capable child support attorney in Orange County who can help you establish proof of the actual support payments you have made.
When can you Challenge a Wage Garnishment Order?
You may challenge a child support wage garnishment order under any one of the following four conditions:
- The child was in your physical custody during the time you did not make support payments.
- Some or all of the child support payments you made have not been accounted for, as a result of which, the total garnishment amount is erroneous.
- You will not be in a financial position to pay your monthly bills with the current amount of child support required to be garnished.
- The custodial parent did not merely deny you parenting time, but actually hid the child’s whereabouts from you.
In all these cases, you will have to provide actual proof to back your claim. For instance, if you say that you will not be able to make your monthly bill payments, then you should be prepared to present actual bank and credit card statements, copies of bills, and a detailed accounting of your monthly income and expenses. The court will only consider expenses that it considers essential for your living.
Consult with a Child Support Attorney in Orange County
If you are behind on your child support payments and want to avoid a child support wage garnishment order, it is a good idea to move proactively and approach the court for a support modification order. Discuss your situation with a trusted Orange County child support attorney who will help you establish a case for modified payment arrangement.
Your attorney will collect and present evidence to show to the court that your financial circumstances have significantly changed since the original child support order or that you are facing unforeseen financial problems. If the wage garnishment order has already been issued, your attorney can guide you about the right legal strategy to have the order stayed, modified, or cancelled.