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Early in his divorce proceedings, one SPARC member's attorney allowed child support to be set at over 75% of his income, contrary to both State and Federal Law. Since this was the amount shown on the standard CS worksheet, he thought he had to pay 77% of his income. This message is to let everyone know that you should not be paying more than the law allows. The Federal Law is listed below and limits CS garnishments to 50% (if you're remarried) and 60% (single) or 5% more than that if there is an arrearage of more than 3 months. (Percentages given are of disposable income, which means after taxes). Some states have similar statutes.
Often states use a standard worksheet to calculate support. The worksheet does not mention anywhere that if the amount owed exceeds these percentages, there should be an adjustment. YOU HAVE TO ASK FOR THAT IN COURT! Make sure you put in the remarks section on the worksheet that the calculated amount would exceed Federal and/or State limits and the CS amount should therefore be set at $XXX.XX (YY% of obligated parent's income).
In WA State, these limits are 45% (50% if there is an arrearage) regardless of marital status, though there is wording that would allow the judge to increase it above this amount in special circumstances (see RCW 26.19.065). If you are paying more than the Federal or State limit, you should consider an immediate petition for a change. The courts can not normally adjust it retroactively beyond the date of your petition. If you use the Federal Statute and then remarry or have another child, then you should consider a petition for a modification to the support order to reduce the support amount.
Federal Law, in the Consumer Credit Protection Act, (CCPA), 15 USC 1673(b)(2) says:
2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed:
You will also be interested in the other sections adjacent to this. Sections 1671 through 1677 cover restrictions on garnishment.
If your employer withholds more than is legal, he has to foot the bill. Show your employer this link to 29 CFR 870 and 29 CFR 531.39.
29 CFR 531.39 specifically states that "When the payment to a third person of moneys withheld pursuant to a court order under which the withholdings exceeds that permitted by the CCPA, the excess will not be considered equivalent to payment of wages to the employee for purpose of the Fair Labor Standards Act." In other words, that is money out of his pocket because he still has to pay you that money.
It doesn't mean you don't owe the money, only that they cannot garnish it. There are some pretty good examples in the links above.
If your employer or income source (the bank) do take too much out of your check, contact the Department of Labor, Wage and Hour Division nearest you and ask how to get this corrected.
I would also start dealing in cash (or travelers checks). It is much harder for a creditor to seize cash he doesn't know about than to seize a bank account that is empty except for uncleared checks that will now bounce. Money orders to pay bills are only $0.75 at the post office.
It is also a good idea to request a yearly payment summary from the Support Enforcement Office. They will normally provide this at no cost to you. The payment summary is a solid record that the Support Enforcement Office cannot refute, since they provided it. Having a copy of the summary can save you thousands of dollars if the payment history is ever contested or if arrears are claimed when none exist.
If you are subject to a wage withholding order, check in with the Support Enforcement Office even more frequently - like every couple of months. In most States, if your wages are withheld for support, and for ANY reason the money doesn't make to the Support Enforcement Office (your employer makes a mistake, it gets lost in the mail, WHATEVER), you are still on the hook.
NOTE: This report is for educational purposes only. Always seek the advice of a qualified attorney on legal matters. This is intended to share what we have learned through experience. We are not attorneys and cannot provide legal advice.
