Withholding Orders

The following is an article courtesy of Jimmy L. Verner Jr., Esq., from his book How to Collect Child Support in Texas

What Are Withholding Orders?

A withholding order is a court order directed to the obligor's employer. It requires the employer to withhold child support from the obligor's paycheck. The responsibility for making sure that the money is taken from the obligor's paycheck rests on the employer. As long as the obligor works for the employer, child support will be paid automatically.

How do Withholding Orders Work?

Withholding orders are mandatory. In other words, every time a court orders child support - whether on the original divorce or in a modification proceeding--the court must order that income be withheld. This does not necessarily mean, however that the withholding order will issue. The court may, and courts frequently do, sign withholding orders but provide that the withholding order will not be served on an employer unless the obligor falls behind in his child support payments.

Child support orders are to be construed to contain provisions for withholding orders even if those orders do not contain withholding provisions. The legislature has decided that withholding is so important that is has legislatively read a withholding provision into every child support order. Thus, if a child support order does not include withholding language, don't fret--by statute, the language is in there anyway.

If a withholding order has already been signed, it can be issued on request to the clerk of court if there are no conditions for issuance. If there are conditions, or if no withholding order has been signed then it is necessary to move the court to sign a withholding order, if necessary, and then to issue it. After the court signs a withholding order, the clerk can issue it.

Withholding orders do have limitations. As much as 50% of the obligor's disposable earnings may be ordered withheld--no more. If there is more than one withholding order on the same obligor--in other words, for children of more than one woman--then the maximum amount that may be withheld remains 50% of disposable earnings.

Child support arrearages, as well as current child support, can be collected by withholding. If there are child support arrearages, a court is directed to fix an amount that will discharge the arrearages in more than two years, or add 20% to the amount of the current monthly child support, whichever will retire the arrearages in the lesser amount of time. A court may, however, extend the payment time if the court finds that the arrearages discharge schedule would cause the obligor or his family or children to suffer an "unreasonable hardship."

How To Get and Use Withholding Orders

Getting the Withholding Order

There are two ways to get a withholding order. The first way is to have one signed upon divorce or modification. Courts are now directed to sign withholding orders which are to be kept in the file for issuance as necessary. If the case is older, so that no withholding order ever was signed, it is necessary to file a motion for a withholding order and obtain an order for issuance.

Many times, the court will, either for good cause shown or on agreement of the parties order that the income withholding order will not issue or be delivered to an employer unless the obligor is in arrears for an amount equal to at lease one month's child support, or the obligor has violated some other provision of the child support order. In this situation, the obligee must file a motion for issuance and delivery of the withholding order and prove that one of these events has taken place. Only then will the withholding order issue to an employer.

Having the Withholding Order Issued

If the court has signed a withholding order, and there are no conditions to issuance of the order, then it is a simple matter to have the withholding order issued to the obligor's employer.

1. Prepare a Request for Issuance of Withholding Order.
2. File it with the clerk of court.
3. Pay the fee, if there is one, which should not exceed $15.
4. The clerk of court is supposed to issue and mail a certified copy of the withholding order to the employer not later than the fourth working day after the request is filed.

If there is no withholding order, or there are conditions that must be met before the withholding order can be issued, then you must file a motion with the court to have a withholding order signed, if necessary, and issued. In this situation, you would file the appropriate motion, make your proof at the hearing, and take the matter from there. You should have an attorney do this for you. Forms for use in this situation are included.

Employer's Rights and Duties

Employers must be careful of withholding orders because if money is not withheld, the employer becomes liable for the unpaid child support and can be fined up to $200 on each occasion on which the employer fails to withhold. For this reason--and also because it is required by statute--the employer should notify the court and the obligee whenever an obligor's employment is terminated. A sample letter for this purpose is included.

Administering withholding orders can be an irritating administrative task. Employers may deduct a fee of up to $10 per month from the obligor's disposable earnings, on top of the withholding, to defray the costs of implementing the withholding. However, an employer may not discharge an obligor who becomes subject to a withholding order.

If an employer has some question whether a withholding order applies, the employer may file a motion with the court to determine whether the employer must withhold. This situation may occur, for example, when the obligee insists that the obligor works for the employer, but in fact the obligor no longer is employed. A form of such a motion, and a proposed order, are included below.

When employers send in withheld payments, they must provide certain information to the agency collecting the child support. Mailing in payments and notifying the court and the obligee when an obligor no longer is employed should be done by the employer itself. If is recommended that an attorney be retained for any court proceedings.