When an Employer Fails to Withhold a Former Spouse's Pay

 Posted on September 18, 2018 in Child Support

You can order your former spouse’s employer to withhold money from his or her pay if that former spouse is not making his or her required payments for child support or spousal maintenance. You must send your uniform order of support and a notice to withhold to your spouse’s employer. Once it receives the notice, the employer must:

• Withhold money from your former spouse's paychecks, starting with the first pay period in the next 14 days; and
• Send payments to a state disbursement unit within seven business days of the date that the former spouse is paid.

If the employer does not comply with the notice, you can file a third-party complaint against the employer for receipt of the missed payments and a $100 fine for each day that the employer did not comply.

Recent Example

In the case of In re Marriage of Schmidgall, a woman filed a complaint against her former husband’s employer for ignoring her notice to withhold for six months. The woman’s lawyer initially sent the notice to withhold by certified mail in May 2014, but the envelope was returned and marked “refused.” The lawyer sent two more notices in June and August, both of which were returned as “unclaimed.” The employer claims that it did not receive a notice until late December, after which it began to comply. Testimony in the case established that:

• The employer was aware of the divorce and the former husband’s child and spousal support requirements because the man is the son of the owner;
• The employer knew the law firm had represented the woman during the divorce; and
• The post office would not return certified mail as "refused" unless the intended recipient told it to do so.

The trial court ruled in favor of the woman and assessed a $66,700 penalty against the employer.

Appeal

An appellate court upheld the ruling that the woman’s lawyer had properly served the notice to withhold in May 2014 but overturned the penalty amount. The former husband had made direct support payments to the woman several times during the months that the employer did not withhold the man’s pay. The woman failed to follow the requirement that she inform the employer when she receives support payments from its employee. Thus, the appellate court ruled that the employer should not be penalized for those pay periods. The appellate court sent the case back to the trial court to determine the proper penalty.

Enforcing Support Payments

Wage garnishment is only one method of collecting money from a former spouse who is not paying child or spousal support. A Kane County family law attorney at Goostree Law Group can help you enforce your support agreement. To schedule a free consultation, call 630-584-4800.

Source:

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/3rdDistrict/3170189.pdf