Child Support Enforcement
Child support enforcement matters are generally handled by state and local authorities, and not by the federal government. Only in very limited circumstances is federal jurisdiction implicated in a child support matter. For this reason, child support issues should be reported to state and local law enforcement authorities.
There are a variety of state civil and criminal remedies for collecting child support. In each state there are agencies, known as "Title IV-D" agencies, which are required by federal law to provide child support enforcement services to anyone who requests such services
Federal child support enforcement became possible with the passage of the Child Support Recovery Act (CSRA) in 1992. The CSRA aimed to deter non-payment of State ordered support obligations through prosecution of the most egregious offenders. While federal prosecution efforts were successful under the CSRA, some law enforcement agencies found that the simple misdemeanor penalties provided for under the Act did not have the force to deter the most serious violators. The problem with enforcement under the CSRA was remedied with the passage of the Deadbeat Parents Punishment Act (DPPA) in 1998. This Act created new categories of federal felonies for the most egregious child support violators.
Federal law makes it illegal for an individual to willfully fail to pay child support as ordered by a court in certain circumstances. Convicted offenders may face fines and imprisonment.
Section 228 of Title 18, United States Code, makes it illegal for an individual to willfully fail to pay child support in certain circumstances.
For one, an individual is subject to federal prosecution if he or she willfully fails to pay child support that has been ordered by a court for a child who lives in another state, or if the payment is past due for longer than 1 year or exceeds the amount of $5,000. A violation of this law is a criminal misdemeanor, and convicted offender face fines and up to 6 months in prison (See 18 U.S.C. § 228(a)(1)).
If, under the same circumstances, the child support payment is overdue for longer than 2 years, or the amount exceeds $10,000, the violation is a criminal felony, and convicted offenders face fines and up to 2 years in prison (See 18 U.S.C.§ 228(a)(3)).
Lastly, this statute prohibits individuals obligated to pay child support from crossing state lines or fleeing the country with the intent to avoid paying child support that has either been past due for more than 1 year or exceeds $5,000. (See 18 U.S.C. § 228(a)(2)). Any individual convicted of this crime may face up to 2 years in prison.
Notably, other than in the specific circumstances aforementioned, child support enforcement issues are handled by state and local authorities, and not by the federal government. Furthermore, all child support enforcement matters must be addressed at the local or state level before concerns can be raised at the federal level.
Under provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress required the use of a standard withholding process to increase child support collections for all families, promote self sufficiency for low-income families, and reduce the burden on employers. States were also required to establish and maintain a state disbursement unit to receive child support payments from employers and other sources (1) for all IV-D cases and (2) for all non-IV-D cases with support orders initially issued on or after January 1, 1994 payable through income withholding.
The most effective way to collect child support is through income withholding. Attorneys, courts, custodial parents or their representatives, and state child support agencies issue income withholding orders to employers or income providers directing them to withhold child support from the noncustodial parent’s income and forward it to the appropriate agency or party. In 2013, over 70 percent of all child support collected was through income withholding.
Spousal support may be collected with child support when included in the same order. Prior to 1981, state child support agencies could enforce, collect, and distribute only child support payments. This led to difficulties as the Social Security Act required that spousal support be sent to the state agency if the family received public assistance. The Omnibus Budget Reconciliation Act of 1981 allowed state child support agencies to process spousal support when it was ordered with child support in public assistance cases. The Tax Equity and Fiscal Responsibility Act of 1982 expanded that authority to include non-public assistance cases. More information on the legislative history of collecting support for adults is available in Action Transmittal-83-02, Final Rule with Comment Period: Collection of Support for Certain Adults.
Judges, hearing officers, private attorneys, and clerks of court should be aware of the following information when entering orders for income withholding:
All child support orders entered after 1994 must have a provision for immediate income withholding unless there is a written agreement between the parties for an alternate arrangement (e.g., direct payment), or good cause exists.
Income withholding orders (IWOs) must be on a standard form approved by the Office of Management and Budget (OMB). This requirement applies both to IV-D and non-IV-D cases. IWOs may be returned if not on the standard form.
The IWO form is the correct form to use if child and spousal support are combined in one order since both types of payments can be withheld by employers, sent to the state disbursement unit (SDU), and then disbursed to the custodial parties.
Courts and attorneys should use the appropriate state-specific form when ordering employers or income withholders to garnish spousal support that is not combined with child support.
Child support and spousal support payments made through income withholding must be sent to the SDU. This requirement applies to all orders entered or modified after January 1, 1994, including those in private cases not enforced by the state child support agency. Any IWO that does not direct an employer or income withholder to send payments to the SDU is not "regular on its face" and will be returned to the sender.
The IWO includes a "remittance identifier". This is the number needed by the SDU to process payments in a correct and timely manner and may be different from the case identifier. Courts should work with their local child support agency or SDU to obtain the remittance identifier for an order for a non-IV-D case. See SDU
Employers withhold about 75 percent of all child support collections nationwide and frequently have questions about how to implement income withholding orders (IWOs). The questions and answers below offer helpful information to employers about Implementing IWOs.
What should I do if the employee tells me the withholding is for the wrong amount or that no income should be withheld?
You should explain that by law, until otherwise notified, an employer must comply with the terms of the withholding order as issued. If your employee disagrees with the withholding, he or she should contact the state child support agency or court that issued the order.
How will I know when to stop withholding child support from an employee’s wages?
You must continue withholding until the child support agency, court, or other sender notifies you to change or stop the withholding.
What does "regular on its face" mean in the instructions of the IWO?
"Regular on its face" means that any reasonable person would think the IWO is valid. The Instructions for the IWO form clarify this term by saying that an IWO is regular on its face when:
it is payable to the state disbursement unit;
a copy of the underlying child support order containing an income withholding clause is included, if the IWO is sent by anyone other than a state/tribal IV-D agency or a court;
the amount to withhold is a dollar amount;
the text of the form has not been changed and invalid information has not been entered;
the order of the text on the OMB-approved IWO form has not been changed, and
OMB 0970-0154 is listed on the form; and
it contains all of the necessary information to process the IWO.
May I garnish a commission earned by my employee if I receive an income withholding for child support?
Yes. You may garnish commissions. You can find state-specific information on the State Income Withholding Contacts and Program Information matrix.
Should I withhold child support from Federal Work Study (FWS) grants?
No. FWS grants from the Department of Education are exempt from child support withholding. The statutory basis exempting such educational grants is found at 20 U.S.C.1095a (d), and such grant monies are not subject to the "inclusive" provisions of 42 U.S.C. 659 and 5 CFR 581.
May I withhold an additional amount above the CCPA limit if the employee requests it?
Yes, you may withhold additional amounts above the CCPA limit, depending on company policy and state law. If you choose not honor the request, the employee may send additional payments to the child support agency to pay arrears or avoid accruing overdue payments.
Must I honor income withholding orders from tribes?
Yes. You must honor income withholding orders from tribes. The orders from tribes must be on the Office of Management and Budget (OMB)-approved IWO form. Also, you must follow the payment instructions on the IWO form because tribes do not operate state disbursement units. You can find more information about working with tribes on the OCSE website.
When a company acquires another company, how should it handle the child support income withholding orders for the "acquired" employees?
The acquiring company has the same legal responsibilities, including the responsibility to withhold wages for the child support income withholding orders of its “acquired” employees. The company should continue to honor the income withholding orders but also notify the issuing child support agency as soon as possible about the acquisition and its intent to continue the withholding. The agencies may provide a new income withholding order, depending on state law.
Must I keep the income withholding orders for terminated employees on file?
Retention of income withholding orders depends on state law. Some states require that a child support withholding order be kept on file, so you can reactivate the order in the event the employee returns to work. Check the State Income Withholding Contacts and Program Information matrix for more details.
What happens if I do not withhold child support for an employee after receiving an income withholding order?
Employers who do not withhold and send child support payments as ordered are subject to penalties in every state. These may include repayment of the amount of the child support plus penalties and fines. For more information, contact the state agency staff on the State Income Withholding Contacts and Program Information matrix.
If an independent contractor incorporates, am I obligated or allowed to withhold from that corporation?
No. You cannot withhold from the corporation as income withholding applies to an individual. Notify the child support agency, and it will send an IWO form to the newly established corporation.
If an employer makes a contribution to an employee’s health savings account, do I consider that contribution as income when calculating disposable income on a child support order?
No. You cannot garnish contributions made to a health savings account by the employer. See IRS Publication 525visit disclaimer page for more information.
What should I do if an employee with an income withholding order is terminated?
You should continue to withhold through the employee's final paycheck and inform the state agency or court immediately that your company terminated the employee. Complete the Termination Notification on the last page of the IWO form (OMB No. 0970-0154), and return it to the IWO sender or submit the termination through e-IWO or electronic terminations, when available.
Which state law applies for “principal place of employment” if an employee has no residence and works in different states; therefore, there is no principal place of employment?
Refer to IRS Publication 463visit disclaimer page. Factors to consider are:
The total time ordinarily spent in each place
The level of business activity in each place
Whether income from each place is significant or insignificant
Whether the employee has an official duty state
Is a deduction for a state employee’s retirement plan considered a mandatory deduction from gross income?
If state employees are required to pay into the state retirement plan as a condition of employment with a government agency, it is a mandatory payroll deduction that reduces disposable income. It is similar to other deductions like taxes, Social Security, etc.
Calculations
Is there a maximum amount of money that I can withhold from an employee's paycheck?
Yes. You may find the federal limits for child support withholding in the Federal Consumer Credit Protection Act (CCPA)visit disclaimer page. The limits are based on the employee’s disposable earnings. States may have a limit lower than the CCPA. You may find state-specific information about withholding limits on the State Income Withholding Contacts and Program Information matrix.
How do I handle child support withholding when the employee already has garnishments or other income attachments against the paycheck?
You should give first priority to child support withholdings over all other claims against the same wages except federal tax liens entered before the child support order was established. Only federal tax liens entered before the child support order have priority over child support. More information is available in Processing an Income Withholding Order or Notice.
If I receive an IWO from one state and the obligor or employee works in another state, which state’s law governs the IWO?
Under the Uniform Interstate Family Support Act (UIFSA), employers must comply with the law of the issuing state regarding:
duration and amount of current support payment;
payment address;
medical support, either as cash payments or insurance coverage available from employment;
amount of payments for fees and costs of the child support agency, issuing tribunal, or attorney; and
arrears payment amounts and interest on those arrears.
UIFSA also adds that the state law of the obligor’s “principal place of employment” addresses the:
employer’s fee for processing the IWO,
maximum amount to be withheld from income (including lump sums if included in the state’s definition of income),
time frames for the employer to implement and remit the payments,
the priorities for withholding and allocating income withheld for multiple child support obligees, and
any withholding term or condition not specified in the withholding order.
Should I include tips as disposable earnings when calculating the amount withheld for child support?
No. According to the Department of Labor, tips are not earnings for the purposes of wage garnishment. Tips are not to be included in determining disposable earnings when left in cash on the table or patrons adding them on debit or credit cards. Service charges (for example, a 15 percent automatic charge added to the customer’s bill) are income to the employer, but if given to the employee, then they are “earnings” and should be included when determining disposable earnings (income) for child support.
May I garnish an employee’s paid time off (PTO), such as vacation or sick leave, for child support?
Yes. You may garnish PTO for child support.
Fees
May I charge a processing fee to the employee?
Yes. Most states allow you to charge the employee an administrative fee for processing the income withholding order. You can find state fees on the State Income Withholding Contacts and Program Information matrix.
What if the fee plus the child support payment exceeds the maximum allowable amount under CCPA?
If the fee plus the child support is more than the maximum amount allowed under the CCPA, you may take the entire amount of the administrative fee and make the child support payment less than the amount in the income withholding order. The amount of support that was not paid (because you deducted the administrative fee) becomes part of the arrears owed by the noncustodial parent.
Multiple Garnishments
What should I do if I receive both an Internal Revenue Service (IRS) levy and a child support income withholding order for an employee?
You should notify the child support agency that you received a federal tax (Internal Revenue Service [IRS]) levy in addition to the income withholding order. The child support agency can inform you if the IRS levy has priority over the income withholding order.
Payments
How soon must I send the child support payment that I withheld from an employee's paycheck?
You must send the payment within seven business days, at the most, of paying wages to the employee. The state where your employee works may set a shorter time limit for submitting the payment.
May I combine child support payments from several employees into one check?
Yes. You may send one check each pay period to cover all child support withholdings for that pay period if:
you are sending all the payments to the same State Disbursement Unit (SDU).
you itemize the amount withheld from each employee, date each amount withheld, and include a required identifier, such as the case number.
Must I send all payments to the SDU?
Yes. You must send all payments to the SDU for income withholding orders (IWOs) issued by a child support agency and orders issued by a court, attorney, or other party except payments for the following types of IWOs:
issued by a Tribal child support agency,
entered before January 1, 1994,
issued by South Carolina.
Should I send payments for spousal-only support to the SDU?
In most cases, you do not send payments for spousal only support orders to the SDU; however, some states will accept and process those payments.
I received an income withholding order from a child support agency in another state. Must I send payments directly to the other state?
Yes. You must send payments to the SDU in the other state issuing the income withholding order.