Income Withholding Orders

August 14, 2013 § 6 Comments

Child support is generally paid directly to the recipient parent, or to DHS in cases where that agency has filed an action.

But did you know that federal law requires that child support must be collected by directing employers to withhold income, and that a certain prescribed form, referred to as an Income Withholding Order (IWO), must be entered in every child support case, except in certain circumstances that are mentioned below?

The federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 required the entry of IWO’s in all child support cases entered on or after January 1, 1994.

Every IWO must direct payments to the State Disbursement Unit (SDU). Payments may not be directed to an individual. An IWO that directs payments to an individual is required to be rejected. Mississippi does, by the way, have its own SDU.

Also, effective May 31, 2012, every IWO must be on the form prescribed by the Office of Management and Budget. You can access a fillable version of the form by clicking this link. Instructions for completing the form, with a link to a .pdf version, are at this link. Employers are directed in their instruction material to return any IWO that is not in the prescribed form.

The law mandates that the income of the paying parent shall be subject to income withholding on the effective date of the order, without regard to whether the parent is in arrears in payments. It is for collection of all child support, and not limited to collection of arrearages.

The only exception to child support withholding is set out in § 486(a)(8)(B)(i) of the Social Security Act, which allows direct payment in two cases:

  1. Where one of the parents demonstrates, and the court finds, that there is good cause not to require immediate income withholding; or
  2. The parents have a written agreement for an alternative arrangement.

The original IWO forms that went into use in the 1990’s (then referred to as “Wage Withholding Orders” or WWHO) were either effective immediately or could be made effective at a later date. That feature is eliminated, since all orders are now effective immediately on entry.

Also, if you are still using WWHO forms from the 1990’s, your forms are hopelessly antiquated. You must switch over to the IWO form referred to above.

In my experience, there are districts around the state where IWO’s are unknown. Why DHS has not made it a priority to see that the law is widely implemented is a mystery. Or maybe they have, in places where I have not been able to observe.

We have used WWHO’s in this district since the early 1990’s. Mandatory withholding, however, is rare in this district; my guess is that only two to three percent of cases employ it. I have not seen an IWO on the latest form since they went into effect in May of last year; all the withholding forms I see are old WWHO forms.

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§ 6 Responses to Income Withholding Orders

  • First, I’m a subscriber to your blog, and I want to thank you for your efforts to educate all of us who frequent chancery court.

    A current discussion on SoloNet about withholding orders led to a link to this article being posted. My question is whether there is any circumstance you can see where an IWO can be entered by a chancellor that orders an employer to withhold and pay support directly to a child support obligee?

    MS Code section 93-11-103(2)(b) states: if both parties agree in writing to an alternative arrangement. The Department of Human Services shall be the designated agency to receive payments made by income withholding in all child support orders. Withholding orders shall be on a form as prescribed by the department.

    Many chancellors I have appeared before (and certainly every DHS attorney I have spoken with on the subject) take the position that all withholding must be paid through DHS. The “shall” in the second sentence of (2)(b) seems to support that position.

    The last sentence of MS Code section 93-11-103(4) states: Nothing herein shall be construed to restrict the authority of the courts of this state from entering any order it deems appropriate to protect the rights of any parties involved.

    I have seen chancellors enter a withholding order directing an employer to pay support directly to an obligee based upon this language and stating that direct payment was necessary to protect the rights of the child support obligee to receive timely payment of support.

    What are your thoughts?

    Many thanks again for your time and effort on this blog.

    • Larry says:

      I think judges are all over the ballpark on this one. You might be able to persuade a given judge to order direct payments. In this district, both judges take the position that payment through DHS is mandated by the statute. To avoid a problem, you might run it past the chancellor involved ahead of time, just to make sure.

  • David Linder says:

    If you look at the form instructions and the accompanying numbered form, many of the numbers don’t even match up with the instructions. It seems government forms are always revised to be more complicated, never easier.

  • Bob Wolford says:

    In my corner of the legal universe known as federal bankruptcy law, we deal with “forms” all the time, and on a seemingly regular basis there is either a new or amended “form” dealing with any number of topics (declarations under oath, reaffirmation agreements, etc.). When one of these new “forms” comes down, the local bankruptcy court enters a “standing order” that puts the local bankruptcy bar on notice of such change. I’m surprised that this has not been done by the staff attorneys up at DHS- seems to me a form standing order could be drafted and sent to every chancery district explaining the new withholding form requirement. It would then be the task of the chancery court administrator or chancery clerk to deliver a copy of such standing order to the attorney as he or she files a divorce complaint. In those districts that are piloting electronic filing, the task would be that much easier- simply have the standing order automatically entered in every new case filed, the attorney would get the message through an e-mail alert and, presumably, regular mail.

    Just my observation.

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