Millions of Americans have their wages garnished every year. Recent studies show that one in ten adults between the ages of 35 and 45 are suffering wage garnishment for one debt or another. Child support garnishment figures prominently among them, making it the single most common form of wage garnishment today. Have a child? Pay child support. Miss a payment? Face garnishment. That’s the harsh reality.
Basic Wage Garnishment
Known to many, wage garnishment for child support is the process by which a family law court orders a non-custodial spouse’s employer to withhold part of that employee’s wages to pay child support. Wage garnishment orders can collect past due child support, i.e., child support arrearages, or current, ongoing support, or both. Once issued, the order is served on the employer, who by law must garnish the employee / non-custodial spouse’s wages as directed and turn those proceeds over to the designated child support agency or party.
Federal Family Support Act (FFSA)
The federal Family Support Act mandates that all states have an automatic garnishment program in place for the collection of unpaid child support. Under this program, wages are seized directly from the debtor parent’s employer, who is under a continuing obligation to honor the garnishment order. The program allows Family Law judges to combine child with spousal support, but not to include only spousal support in its automatic provisions. A court from the state of residence for the non-custodial parent will monitor this program.
Exceptions to the FFSA
Once income withholding is in place, it is automatic and remains in place until the court or child support agency instructs the employer to the contrary. To avoid it in the first place, the parents can agree to a voluntary arrangement between them. In some states, the garnished spouse can apply to the court and argue hardship or good cause for not making the garnishment automatic. However, that application is usually left to the sound discretion of the court and is rarely granted.
Federal Limitations on Garnishment
For consumer debts and the like, federal law limits garnishments to 25% of disposable (after-tax) earnings, or 30 times minimum wage, whichever is higher. Like garnishments for unpaid taxes, garnishments for unpaid child support receive far less protection.
The U.S. Wage and Hour Fact Sheet explains the lesser protections afforded child and spousal support debtors: “Specific restrictions apply to court orders for child support or alimony. The garnishment law allows up to 50 percent of a worker’s disposable earnings to be garnished for these purposes if the worker is supporting another spouse or child, or up to 60 percent if the worker is not. An additional 5 percent may be garnished for support payments more than 12 weeks in arrears."
Requesting a Hearing
Employees whose employers are served with a wage garnishment order may request a hearing, and then raise a number of objections. Though they vary from state to state, here are a few:
- The amount claimed is wrong;
- The garnishment will impose a great hardship on the party garnished;
- The custodial parent has actively concealed the child (only in a few states); and
- The party garnished had custody of the child during the arrearages period.
ERISA and REA Exemptions
Some spouses receive Social Security or pension payments administered by ERISA, which is the Employee Retirement Income Security Act. ERISA plans often contain what is called an “anti-alienation" clause. This clause directs the ERISA administrator, who acts in a fiduciary capacity toward the employee, to make all ERISA payments only and directly to the beneficiary employee. Out of concern for legal liability, many of these administrators will not honor a garnishment order.
In the end, like so many other areas of wage garnishment law, the rules, exemptions, and limitations to the exemptions themselves can get quite complicated. Be sure to do your research, consult online services, and always be proactive in protecting your rights.
Federal Statute: Title III, Consumer Credit Protection Act (CCPA), 15 USC, §§1671 et seq.
Code of Federal Regulations: 29 CFR Part 870
U.S. Wage and Hour Division: Fact Sheet #30 – The Federal Wage Garnishment Law, Consumer Credit Protection Act’s Title III (CCPA)
Field Operations Handbook – 02/09/2001, Rev. 644, Chapter 16, Title III – Consumer Credit Protection Act (Wage Garnishment)
Listing of Garnishment by state: http://www.small-claims-courts.com/Wage-Garnishment-Laws.html
Garnishment Fact Sheet: http://www.dol.gov/whd/regs/compliance/whdfs30.pdf