What are the Rights and Duties of an Employer to Withhold Income?

One of the tools that a court has available to assure that alimony and child support is paid on time each month is through a court order to withhold alimony and child support payment from each paycheck. The withholding is similar to FICA or Social Security withholdings from each paycheck. If this is the case, the employer must follow some rules detailing how to go about withholding the payer’s income.

Once the order or writ of withholding is delivered to the employer, income should be withheld beginning with the next pay period and should continue as long as the payer is required by the order to pay alimony or is employed by that business. Recognizing that there is an administrative cost to for the business, an employer is allowed to deduct a fee of $5 or less each month in addition to the amount withheld as alimony.

The Rules for Remitting Withheld Payments

On each payday, the employer is required to send the income that was withheld to the person or office named in the order.

Each remittance of the withholding should include:

  1. The date on which the income withholding occurred;
  2. The cause number of the divorce suit under which income withholding is required;
  3. The payer’s name (the person ordered to pay alimony or child support)
  4. The payee’s name (the person receiving the alimony or child support), unless the remittance is made by electronic funds transfer.

Employers Can Request a Hearing

An employer can request a hearing on the applicability of the order to withhold income, but it must be filled within twenty days of receiving the order. The hearing will then be held within fifteen days, but the employer must continue to withhold income and remit the amount withheld pending further order of the court.

Liability and Obligation

The employer who complies with the order for withholding is not liable to the payer for the amount of income withheld and remitted. An order of withholding for alimony issued in another state must be complied with in the same manner as an order issued in Texas. The employer is to notify the employee of the order and may contest an order of withholding from another state.

An employer who receives, but does not comply with an order for withholding is liable to:

  1. The payer for any amount of alimony not paid in compliance with the order;
  2. The alimony recipient for any amount withheld from the payer’s disposable earning, but not remitted to the recipient; and
  3. The payer or receiver for reasonable attorney’s fees and court costs incurred in recovering the amount from points (1) or (2).

Discriminatory Hiring or Discharge

It is also important to note that an employer may not use the order as grounds for termination or disciplinary action against an employee. Similarly, an employer may not refuse to hire an employee because of an order for withholding. If an employer violates this rule, an action to enforce the employee’s rights may be filed against an employer.

If an employer intentionally discharges an employee because of an order for withholding, that employer is liable to the employee for current wages, other employment benefits, and court costs incurred in enforcing the employee’s rights. The court can also order reinstatement of the employee’s position with the employer and fringe benefits or seniority lost as a result of the suspension or termination.

Alimony and Child Support payments that are ordered to be withheld from a paycheck serve two important purposes. The first is to assure that the spouse will receive the court ordered payment in a timely fashion. This will help the receiving spouse to plan budgeting and spending each month. The second is to also assist the paying spouse to be in compliance with the court order and avoid the dreaded title of being labeled as a deadbeat dad or a deadbeat mom.

Withholding of alimony and/or child support payments requires an experienced family law attorney to ensure that the withholding is properly applied. Tim Whitten is a board-certified family law attorney who regularly assists his clients in setting up payment plans and processes including income withholding of alimony and child support. Call us at (512) 790-5066 or contact us today for a consultation.

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