Have you recently found out that the parent of your child is withholding your wages for a child support order? Have you been on the arrearages roller coaster for years and want to have the child support owed to you paid through wage withholding but need more information? You have come to the right place.
Can my child support order be enforced through wage withholding? The answer is probably yes, but depends on the date your child support order was issued and the language of your order. Contact an attorney for specific questions. Generally, South Carolina laws that pertain to wage withholding depend on when the Order for child support was issued. The two years that matter are 1990 and 1994. Since most children born or subject to a child support order PRIOR to those years would no longer be under a child support order- it is almost safe to say ALL South Carolina child support Orders are subject to wage withholding. However to be clear the law specifically states the following:
- All child support orders done DSS / Child Support Agency issued or modified after October 31, 1990 are subject to immediate wage withholding. AND
- Child support orders, not made through the Child Support Enforcement Agency that were issued or modified after January 3, 1994 are subject to immediate wage withholding.
My child support order is paid through the court is that the same as wage withholding? NO. Immediate wage withholding is not automatic wage withholding. Depending on the language of your order, wage withholding may not be allowed at all. Also, your order may indicate that the payments be paid through the court. Often Family Court Judges like to see a few missed payments before they will require wage withholding. Support is often paid through the court or directly to a receiving party and after payments are missed the receiving party can take steps, discussed below, to enact wage withholding.
What if I have an out of state Child Support Order, can that be enforced through South Carolina Wage Withholing? Yes, the Uniform Interstate Family Support Act requires all employers honor income withholding orders from all other states. Payments should be sent to the registry or court indicated on the notice sent by that state. An attorney can help you understand this complicated situation.
How can I avoid wage withholding? Depending on the circumstances, almost any person receiving support can have wage withholding put into place if they do the paperwork correctly. South Carolina has allowed two circumstances where the paying party can protect themselves from surprise wage withholding.
- If one of the parties demonstrates and the court finds that there is good cause not to require immediate income withholding; or
- A written agreement is reached between both parties which provides for an alternative arrangement.
Does the support have to be in arrears before it can be put into wage withholding? This depends on who is enforcing the order.
1. If the order is an order which is enforced by the Department of Social Services- DSS- or The Child Support Enforcement Agency- or was ordered by one of those entities, then the order DOES NOT NEED TO BE IN ARREARS to be subject to wage withholding. A receiving party can go at any time and request the support be withheld from the paying party’s wages.
2. If the order is a private order or one NOT through DSS/ Child Support Enforcement, AND the order is not paid through the court, then: The person who owes the support must be found delinquent in an amount equal to three months of support or more, usually through a Rule to Show Cause. AND The Clerk must order the wages enrolled for wage withholding immediately.
NOTE: Even if the person paying is completely caught up at the time of the hearing on any arrearages, wage withholding may still be ordered depending on when the payments were made.
What does wage withholding mean for employers? South Carolina Code requires employers to comply with wage withholding requests which come through the Clerk of Courts from any of the 46 counties or from the Child Support Enforcement Agency from this or any other state. The employer must determine the conversion of the order to comply with the particular employer’s pay schedule for the employee subject to withholding as well and other requirements. If you are an employer, or work for an employer, and receive and request for wage withholding, contact an attorney as soon as possible to discuss how to handle this situation to avoid any liability on your part for failure to comply.
What part of my income can be withheld through child support? Are my bonuses subject to withholding?
Income for this purpose including regular pay, any form of payment to an individual regardless of source including, but not limited to, wages, salary, commission, bonuses, compensation as an independent contractor, workers’ compensation, disability, annuity and retirement benefits, payments made pursuant to a retirement program, interest, and any other payments made by a person or an agency or department of the federal, state, or local government.
INCOME EXCLUDES:Public assistance payments and amounts required by law to be withheld, including, but not limited to, federal, state, and local taxes, social security and other retirement deductions, and disability contributions; NOTE: other than creditor claims are secondary to your child support being withheld- your child support will take primary importance and be paid out first.
What if the wage withholding causes me to lose most of my income? What is there is more than one child support wage withholding order for me? What if my child support is greater than my paycheck?
You should still be able to earn enough money to live with the amount that is determined to be appropriate allowing you to still retain 50% of your net disposable income after they deduct all withholdings. South Carolina Laws as well as the Federal Laws require withholdings for child support to be first in line, and take priority over ALL other income withholdings. Employers must withhold the entire amount of child support indicated by the notice given to them UNLESS the amount on the notice would be greater than 50 percent of the employee’s net disposable income. This can be very complicated but the notice should explain how to calculate all withholding and how the net disposable income is determine.
If there are multiple orders, an employer must make sure that all orders are complied with. Current ongoing support orders shall be complied with BEFORE arrearages are dealt with through withholding.
How is an order of withholding be terminated or suspended?
1. The Clerk of courts may terminate or suspend the order if they cannot locate the person who is to be paid. Once that person is able to be located or provides a new address the withholding would restart after the person paying is given notice.
2. The person paying may petition the court to terminate the withholding but they have to have one of the following reasons and a judge must grant the termination of the withholding:
– There is no longer a current order for support AND all arrearages are paid OR
– The person paying meets the requirements for some alternate arrangement AND withholding has not been terminated previously and then later restarted.
NOTE: IT IS YOUR JOB TO TELL THE COURT/ YOUR JOB THAT YOUR CHILD IS 18 OR YOU HAVE FINISHED PAYING YOUR ARREARAGE OR THEY WILL CONTINUE THE WITHHOLDING AND YOU WILL NOT GET A REFUND.
Forms for DSS actions ONLY can be found at https://dss.sc.gov/content/library/forms/files/27126.pdf
FOR MORE INFORMATION CONTACT THE POWERS LEGAL FIRM, LLC FOR A CONSULTATION 843.261.7025