Lawyers who represent corporations are often forced to become experts in many areas of law, including cross-over issues involving employment law and family law. When your corporate clients call you asking how to handle their employees’ income withholding order or earnings assignment order, you should offer the following basic advice before calling your preferred certified family law specialist to further assist you and your client.
NO.1: CAREFULLY REVIEW ALL OF THE INSTRUCTIONS AND FORMS SERVED WITH THE ORDER
When served with an earnings assignment order or an income withholding order, there are various forms and instructions included within the package. Remind your client to carefully review all of the information provided in the forms, as it is rather helpful and instructive.
NO. 2: NOTIFY EMPLOYEE OF GARNISHMENT ORDER IMMEDIATELY
As soon as the employer receives the income withholding order or earnings assignment order, the employee should be notified immediately in writing and provided with a full and complete copy of the order and accompanying forms. The employee whose wages are being garnished will naturally have many questions. The employer should not offer legal advice. Instead, a better practice is to provide the names of referrals for several family law attorneys, preferably a certified family law specialist.
The employee should be reminded that he or she has the right to request a hearing regarding the earnings assignment order, but must do so within 10 days of the date the employer gave a copy of the earnings assignment order to the employee.
Direct the employee to the website for California Courts Judicial Council Forms and select family law form FL-450, just in case one was not provided with the service package of the order.
NO. 3: CHECK FOR VALID SERVICE OF ORDER
Identify the way in which the withholding order was served upon the employer. If the order was not properly served, the employer and employee may have grounds for objection. Even if it is clear that the income withholding order was not properly served upon the employer, the employer should still notify the employee of the order and contact the support obligee or obligee’s attorney.
NO. 4: SEND TIMELY PAYMENTS
Within 10 days of receipt of the order, the employer must garnish the required wages and send payment. The employer should garnish payment from the employee as soon as possible, but no later than 10 days aft er the earnings assignment order or income withholding order has been received by the employer. It is very important to understand and inform your client that the employer will be held liable for any amount the employer failed to withhold from the employee’s paycheck.
NO. 5: SEND PAYMENTS FOR THE CORRECT AMOUNT DUE
Identifying the correct amount of the support to be garnished from the employee’s paycheck and paid to the opposing party is not always an easy task. There is oft en an ongoing order for child and/or spousal support, along with past due support to be paid (referred to as arrearages), as well as a request for a percentage of the employee’s bonuses or commissions be paid as part of the order for support.
The general rule for garnishments is different in family law support situations than general civil judgments in that 50 percent of the employee’s net disposable earnings can be withheld and garnished for support orders. Keep in mind that the “earnings” subject to withholding are not limited to the base salary of the employee. “Earnings” includes bonuses, commissions and in some instances, retirement benefits. If the employee’s earnings are not sufficient to satisfy the amount of the order, then the employer must prioritize between first paying the current amount of support due and then paying the past due amounts of support.
NO. 6: SEND THE PAYMENTS TO THE CORRECT PERSON OR ENTITY
It may seem obvious to tell your corporate client to be sure to send the payments to the correct person or entity identified on the order. However, remember that you are not necessarily dealing with individuals who have a legal background and the orders can be confusing in regard to where the payment is to be sent. For example, child support garnished via an income withholding order must be sent to the California State Disbursement Unit in West Sacramento. Spousal support payments, however, may be paid directly to the opposing spouse, or his or her attorney, depending on the order issued. Taylor Wallin