Garnishment Limits for Support
Obtaining a court order directing the other party to pay child support or alimony is one thing; actually receiving the ordered amounts is another matter. In order to carry out these financial-related orders, courts routinely issue income withholding orders (previously known as income deduction orders) to the employers of obligor ex-spouses. These income withholding orders act as a garnishment on the wages of the obligor ex-spouse and can make it more likely that the obligee ex-spouse receives timely and regular payments. (Where the obligor spouse receives certain government retirement benefits or entitlements, these may be subject to garnishment as well.)
The power of the court to issue income withholding orders and garnish the wages of
an obligor ex-spouse is not unlimited, however. State and federal laws – especially the Consumer Credit Protection Act – limit the amount that can be garnished from an obligor ex-spouse’s pay.
What is an “Income Withholding Order”?
In the context of a Florida divorce, an income withholding order (also called an “income deduction order”) is a document signed by the court and directed to an obligor spouse’s employer. If the obligor spouse receives entitlement payments such as military retirement benefits or Social Security retirement benefits, these can also be garnished through the use of an income withholding order. These orders – which must be signed by the judge – are served directly upon the employer or payor of benefits, typically by the obligee ex-spouse or his or her attorney. By so doing, any efforts by the obligor to delay or frustrate the implementation of the garnishment are minimized.
Completing an income withholding order requires knowledge of who the obligor’s employer or payor is and who within the organization or entity processes income withholding orders. This information can usually be discovered with a simple Internet search or telephone call to the payor’s offices. The order will also need to direct the payor how much to withhold from each paycheck. For instance, if the obligor ex-spouse is ordered to pay$500 per month and she gets paid twice per month, $250 will need to be withheld from each paycheck. If the obligor is paid biweekly, then $230.76 would need to be withheld (($500 per month x 12 months) / 26 pay periods). If additional amounts need to be withheld – for instance, if the court orders the obligor to pay so much extra per pay period to address amounts in arrears – then this can be noted on the income withholding order as well. Finally, the order needs to indicate where the money that is withheld is to be sent.
Income withholding orders do not necessarily need to be prepared or filed by an attorney, but they must conform to certain requirements. It is not as simple as sending a letter to the payor and telling them to withhold a certain amount of dollars. An income withholding order that does not substantially conform to the statutory requirements may be rejected by the court and/or payor. In other words, it is generally not advisable for parties to draft their own income withholding orders unless they have some legal background or familiarity with such orders.
What is the Consumer Credit Protection Act?
As noted above, there are limitations on a court’s ability to garnish wages. The Consumer Credit Protection Act, enacted in 1968, is the main federal law that limits the amount that can be garnished from an individual’s wages. In most circumstances, a creditor such as a credit card company or car loan lender can only garnish the lesser of either 25% of the obligor’s weekly disposable income or weekly disposable earnings equal to 30 times the federal minimum wage ($217.50). So, for instance, if Juan is working at a well-paying job and a court finds his disposable income – that is, his income after certain permitted deductions – is $2,000, under the first calculation (25%) a court can order that up to $500.00 of his wages be garnished.
These calculations and rules yield the following general advice: if an obligor has $217.50 or less in disposable income per week, there can generally be no garnishment of that obligor’s wages. If an obligor has between $217.51 and $290.00, any amount above $217.51 can be garnished (up to $72.49 per week). If the obligor has over $290.00 in disposable income per week, then up to 25% of the disposable income can be garnished.
It is important to note that the cap on garnishments applies to all garnishments against an obligor’s paycheck. So if a portion of Juan’s paycheck is being garnished by multiple creditors, the total amount garnished cannot exceed 25% of his disposable income. In other words, Juan’s credit card company cannot obtain a garnishment for 25% if the total amount being garnished from his paycheck is already 25% of his disposable income. But suppose that Juan’s car loan company is garnishing 10% of his disposable income. In this case, the credit card company could garnish 15% of Juan’s disposable income.
These calculations and percentages are applicable to most consumer-related judgments. Where a support obligation is involved, however, the court can grant a garnishment of up to 65% of the obligor’s disposable income. Specifically, a court can grant a garnishment of:
- 50% of the obligor’s disposable income, if the obligor is supporting a spouse or dependent child (other than the spouse or dependent child covered by the order for support) and is less than 12 weeks in arrears on the obligation;
- 55% of the obligor’s disposable income, if the obligor is supporting a spouse or dependent child (other than the spouse or dependent child covered by the order for support) and is more than 12 weeks in arrears on the obligation;
- 60% of the obligor’s disposable income, if the obligor is not supporting a spouse or dependent child (other than the spouse or dependent child covered by the order for support) and is less than 12 weeks in arrears on the obligation; and
- 65% of the obligor’s disposable income, if the obligor is not supporting a spouse or dependent child (other than the spouse or dependent child covered by the order for support) and is more than 12 weeks in arrears on the obligation.
Not only this, but tax refunds and certain other payments can also be garnished if there is an outstanding support obligation. These can be combined with other methods of encouraging the obligor to pay his or her obligations, including levying bank accounts belonging to the obligor and suspending driver’s licenses and professional licenses.
How Can the attorneys at Ayo and Iken Help Me?
For obligee spouses (those to whom an obligation is due), a Florida family law attorney can help you in properly completing and submitting the income withholding order so that you can start to receive timely and regular payments. An improperly completed income withholding order can be rejected by the court or by the payor, causing a delay in receiving payments and the hassle of correcting and resubmitting the order. An attorney can also help you understand the limits of an income withholding order and advise you as to how much you can expect to be able to garnish through an income withholding order.
An obligor spouse who is notified of a garnishment will also benefit greatly from speaking with a Florida family lawyer. Even though there may be a valid underlying judgment and order for support justifying the garnishment, the garnishment itself can be unlawful. For example, if the garnishment takes more disposable income than is permitted under the law, the garnishment can be modified. Likewise, if the garnishment is also taking extra money from a paycheck to pay arrears where the arrearage has already been paid, the garnishment can be modified. Or if the garnishment is issued against benefits that are exempt from garnishment (such as Social Security disability benefits or veterans’ disability benefits) then the garnishment can be dismissed entirely. In each of these situations, however, the obligor spouse will need to request a hearing before the court and persuasively present evidence showing that the garnishment and income withholding order ought to be modified or terminated. An attorney can greatly assist the obligor spouse in these endeavors. Finally, an attorney can advise you of the various rights you have when an income withholding order is issued to your employer or payor of benefits – some of which must be exercised within a specific amount of time.
Income withholding orders have made it much easier for obligee ex-spouses to receive timely and regular payments of child support and alimony obligations. Income withholding orders are orders signed by the court and issued to the obligor’s employer or payor of benefits with the authority of the court. An employer or payor that does not comply with a valid income withholding order can be found in contempt of court for refusing to follow a court order. At a minimum, these orders identify the court that is issuing the order, identify the name of the payor, and specify how much will be withheld pursuant to the order and where the money that is withheld is to be sent (the Florida Department of Revenue – Child Support Enforcement is the place where such payments are sent in the vast majority of cases). Although an obligee ex-spouse can prepare and submit an income withholding order on his or her own, an order that does not conform to statutory requirements may be rejected by the court or by the payor, causing a delay in payment.
An income withholding order acts to garnish the obligor spouse’s wages or (in some cases) entitlement benefits like Social Security retirement benefits. But regardless of the amount of the obligation or any arrearage on the obligation, federal and state laws limit the amount of money that can be garnished from the obligor’s paycheck or benefits check. The main law that limits garnishments is the Consumer Credit Protection Act. In cases involving normal creditors like credit card companies and banks, federal and state laws limit the total amount that can be garnished through an income withholding order to 25% of the obligor’s weekly disposable income or the obligor’s weekly disposable earnings equal to 30 times the federal minimum wage, whichever amount is lower. If the obligor’s weekly disposable income is below 30 times the federal minimum wage, there can be no garnishment.
These limits are increased when the income withholding order and garnishment are for child support or spousal support obligations. Where the obligor ex-spouse is supporting another spouse or child (that is, a spouse or child that is not the subject of the spousal support order or alimony order), a garnishment of 50% can be issued. Where the obligor ex-spouse is not supporting another spouse or child, this amount can increase to 60%. Both of these percentages can be increased by yet another 5% if the child support obligation or alimony obligation is 12 weeks or more in arrears.
When it comes to income withholding orders and garnishments, both obligors and obligees can benefit from the legal advice of an experienced family law attorney. For obligees, an attorney can help make sense of garnishment limits and prepare an income withholding order that will be accepted and honored by both the court and the obligor’s employer. An attorney can also help an oblige know when an income withholding order is not appropriate due to the obligor’s “pay” consisting of benefits that are not able to be garnished.
Obligors can benefit from a legal eye reviewing an income withholding order for deficiencies and illegalities. If the income withholding order withholds more money than is allowed under federal and state law, if the obligation has already been satisfied in part or in whole, or if the income withholding order garnishes benefits that cannot be garnished, then prompt legal action is necessary to modify or cancel the order and garnishment so that the obligor can once again have access to his or her money. Not only this, but when a garnishment is issued through an income withholding order, the obligor has important rights – some of which can be waived if not exercised promptly.
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