INCOME WITHHOLDING

CS 721P Immediate Income Withholding 

01/91 Revised 07/28/14 Training Completed 08/11/14

45 CFR 303.100(f)(2); U.C.A. 35A-7-105(2), 62A-11-403, 404, 502

 

Statutory Authority

 

Utah law found at U.C.A. 62A-11-403 Provision for income withholding in child support order – Immediate income withholding states: 

“(1) Whenever a child support order is issued or modified in this state the obligor's income is subject to immediate income withholding for the child support described in the order in accordance with the provisions of this chapter, unless:

(a) the court or administrative body which entered the order finds that one of the parties has demonstrated good cause so as not to require immediate income withholding; or

(b) a written agreement which provides an alternative payment arrangement is executed by the obligor and obligee, and reviewed and entered in the record by the court or administrative body.

(2) In every child support order issued or modified on or after January 1, 1994, the court or administrative body shall include a provision that the income of an obligor is subject to immediate income withholding in accordance with this chapter. If for any reason other than the provisions of Subsection (1) that provision is not included in the child support order the obligor's income is nevertheless subject to immediate income withholding.”

(3) In determining "good cause," the court or administrative body may, in addition to any other requirement it considers appropriate, consider whether the obligor has:

(a) obtained a bond, deposited money in trust for the benefit of the dependent children, or otherwise made arrangements sufficient to guarantee child support payments for at least two months;

(b) arranged to deposit all child support payments into a checking account belonging to the obligee, or made arrangements insuring that a reliable and independent record of the date and place of child support payments will be maintained; or

(c) arranged for electronic transfer of funds on a regular basis to meet court-ordered child support obligations.”

 

Additionally, U.C.A. 62A-11-404 Office procedures for income withholding for orders issued or modified on or after October 13, 1990 states: 

 

“(1) With regard to obligees or obligors who are receiving IV-D services, each child support order issued or modified on or after October 13, 1990, subjects the income of an obligor to immediate income withholding as of the effective date of the order, regardless of whether a delinquency occurs unless:

(a) the court or administrative body that entered the order finds that one of the parties has demonstrated good cause not to require immediate income withholding; or

(b) a written agreement that provides an alternative arrangement is executed by the obligor and obligee, and by the office, if there is an assignment under Section 35A-3-108, and reviewed and entered in the record by the court or administrative body.

(2) For purposes of this section:

(a) "good cause" shall be based on, at a minimum:

(i) a determination and explanation on the record by the court or administrative body that implementation of income withholding would not be in the best interest of the child; and

(ii) proof of timely payment of any previously ordered support;

(b) in determining "good cause," the court or administrative body may, in addition to any other requirement that it determines appropriate, consider whether the obligor has:

(i) obtained a bond, deposited money in trust for the benefit of the dependent children, or otherwise made arrangements sufficient to guarantee child support payments for at least two months; and

(ii) arranged to deposit all child support payments into a checking account belonging to the obligee or made arrangements insuring that a reliable and independent record of the date and place of child support payments will be maintained.

(3) An exception from immediate income withholding shall be:

(a) included in the court or administrative agency's child support order; and

(b) negated without further administrative or judicial action:

(i) upon a delinquency;

(ii) upon the obligor's request; or

(iii) if the office, based on internal procedures and standards, or a party requests immediate income withholding for a case in which the parties have entered into an alternative arrangement to immediate income withholding pursuant to Subsection (1)(b).

(4) If an exception to immediate income withholding has been ordered on the basis of good cause under Subsection (1)(a), the office may commence income withholding under this part:

(a) in accordance with Subsection (3)(b); or

(b) if the administrative or judicial body that found good cause determines that circumstances no longer support that finding.

(5) (a) A party may contest income withholding due to a mistake of fact by filing a written objection with the office within 15 days of the commencement of income withholding under Subsection (4).

(b) If a party contests income withholding under Subsection (5)(a), the office shall proceed with the objection as it would an objection filed under Section 62A-11-405.

(6) Income withholding implemented under this section is subject to termination under Section 62A-11-408.

(7) (a) Income withholding under the order may be effective until the obligor no longer owes child support to the obligee.

(b) Appropriate income withholding procedures apply to existing and future payors and all withheld income shall be submitted to the office.”

If a child support award was issued or modified on or after October 13, 1990, the non-custodial parent's (NCPs) income is subject to immediate withholding as of the effective date of the order, regardless of whether a delinquency exists, unless the court or administrative body that entered the order finds good cause not to require immediate income withholding, or a written agreement between the custodial parent (CP) and NCP, and the Office of Recovery Services/Child Support Services (ORS/CSS) in a IV-A case, provides an alternative arrangement to immediate income withholding.

 

If a good cause finding or a written agreement prevents immediate income withholding, the finding or written agreement language must be in the record or the NCP's income is subject to immediate income withholding.  The good cause finding or written agreement may be negated at a later date.  

 

In Non-IV-D cases an action to reduce child support arrears to judgment, without establishing or modifying the base support amount, is not sufficient to trigger immediate income withholding.  However, in IV-D cases, reducing “accruing under order” (AUO) arrears to a sum certain judgment will trigger immediate income withholding.  For example, if the support order was issued before October 13, 1990, and you adjudicated past-due support owed under that order at a later date, and the adjudicative proceeding resulted in a sum-certain judgment or order (e.g., Decision and Order), the NCP’s income is subject to immediate withholding as of the date of the judgment or order. 

 

The NCP's income is subject to immediate income withholding even if there is no immediate income withholding language in the order.

 

Immediate income withholding must be implemented on arrears only cases if the order was issued on or after October 13, 1990, unless there is a good cause finding or a written agreement included in the record.

 

Timeframes

 

Issue a Notice to Withhold Income for Child Support to the payor of income within two (2) business days of receiving New Hire Reporting information.  

 

For income sources other than New Hire Reporting, issue a “Notice to Withhold” to the payor of income within 15 calendar days of:

 

1.                  The date the support order is issued, if the payor's address is known and verified;

 

2.                  The date the case is opened, if we have a copy of the order and the payor's address is known and verified;

 

3.                  The date we receive a copy of the order, if the payor's address is known and verified; or,

 

4.                  Locating and verifying the payor's address;

 

Income Withholding Fee

 

For Utah support orders that were issued or modified between January 1, 1994 and June 30, 1997, and if support was paid by income withholding, Utah law required the obligor to pay a $7.00 monthly fee in addition to the amount to be withheld.  The fee applies to any payment made by income withholding, including arrears-only situations.  Charge the fee on cases that have Utah support orders that were issued or modified between January 1, 1994 and June 30, 1997.  If the order was issued before January 1, 1994, or on or after July 1, 1997, do not charge the fee unless the order contains specific language requiring payment of the fee.  If an order that was issued between January 1, 1994 and June 30, 1997 contains the fee provision language and is later modified (after July 1, 1997), and the modified order is silent regarding the fee provision, continue to charge the $7.00 fee.  Effective July 1, 1997, the Utah State Legislature removed the requirement that the courts include a fee provision in the support order, but did not forbid the courts from exercising discretion to include such a provision if they choose. 

 

NOTE:  The income withholding fee is not charged on CIC cases. 

 

When appropriate, issue the “Notice to Withhold” for the amount to be withheld plus an additional $7.00 per month.  (If the payor only pays one time per month, only collect an additional $3.50 per month.)  If the NCP goes off income withholding, end the fee debt so that the fee will not be charged if the NCP pays voluntarily.