Illinois Matrimonial & Family Law

Enforcing Child Support

by Wes Cowell, updated 8 July 2015 -- suggest a correction

 

It's not hard to make your ex pay child support; but you need to work with an attorney. Enforcement is done entirely through legal procedures in court. It gets very technical.  It is beyond the ability of most people to D-I-Y. Work with a lawyer.  Need advice?  Call, leave yoru info, or scheduleschedule a consultation.  

 

For Starters:  ALL child support is supposed to be paid through a withholding notice, by default.  Illinois has adopted the Income Withholding for Support Act (750 ILCS 28/1 et seq.) and it applies to ALL child support (and maintenance) orders.  Unless there is a very good alternative plan laid out and approved by the court, child support must be paid via withholding through the State Disbursement Unit (S.D.U.).  It works like a garnishment -- the support is withheld from the obligor / employee's pay and is turned over to the S.D.U.  The S.D.U. keeps score of the payments that it processes, and then passes the money on to the obgilgee (the parent receiving support).  In 2008, the S.D.U. processed over $1.33 billion.  If there is ever any question or argument about whether support was paid for a particular month, the S.D.U. scorecard (they call it a "ledger") is the BIBLE -- the be-all-end-all of payment records.  

 

Don't Opt Out of S.D.U.:  Some couples, however, agreagree to avoid the garnishment / S.D.U. procedure.  Instead, they just have the obligor pay support directly to the obligee.  Later a dispute erupts about whether support is fully paid and up-to-date and the records either don't exist or are a complete mess.  That is a mistake.  When couples opt out of the garnishment / S.D.U. of payment they must present to the court a written alternative plan.  THe plan that usually works is for the obligor to fund a savings account in the obligee's name in an amount roughly equal to six month's of child support.  That way, if the obligor ever stops paying, the obligee will have a six month cushion in which to drag the obligor into court to enforce the support order. 

 

Get a Withholding Notice and a Copy of the Support Order To the Employer -- Anywhere in the U.S.:  The "Withholding Notice" is a form you can pick up at the courthouse.  It is the method used to notify an employer that child support must be withheld and forwarded to the S.D.U.  Big employers deal with scores or hundreds of these every day.  Small employers have never seen one, before.  Federal law (42 U.S.C. 666 (b)) says the Notice to Withhold Income procedure should work with any employer, in any state. no matter what.  The Notice and the Order contain instructions to the employer and explain the employer's responsibilities.  If the employer ignores the instructions or fails to honor its responsibilities, the obligor's obligations can be shifted to the employer, directly.  Send it Certified Mail, Return Receipt Request, so you can prove it was received by the employer.

 

Income Withholding -- The $100 / Day Penalty:  Illinois law places several responsibilities on employers to ensure the proper collection and payment of child support.  Illinois' Income Withholding for Support Act (750 ILCS 28/35) provides for a $100-a-day penalty (with a $10,000 cap) for businesses that withhold support payments from paychecks, but fail to timely turn them over to the obligee or S.D.U., as ordered

 

A Notice to Withhold Income should be properly served on the employer via Certified Mail, Return Receipt Requested.  After that, if the employer fails to properly and timely withhold and turn over child support, the $100 / day fine can kick in.  The law is enforced regularly.  Back before there was a cap and fines were HUGE -- has resulted in the financial ruin of several Illinois businesses that failed to properly withhold and pay over child support funds.

 

Grams v. Autozone:  The appellate court summarized it nicely:

 

Within Mary and Thomas DeRoo's divorce decree, the court entered a child support withholding order, requiring Thomas' employer to withhold $220 each pay period from Thomas' paycheck. The withholding order was served upon Autozone on January 19, 1999.

 

Thomas was paid every two weeks. The pay periods ended every other Saturday, and he was paid the following Friday. Though Autozone did begin withholding $220 from each of Thomas' paychecks starting with the check he received February 19, 1999, Autozone admits it knowingly failed to turn over the withholdings it collected from that date through April 24, 1999. All later withholdings were turned over in a timely manner. Collectively, Autozone failed to timely turn over six deductions.

 

The first deduction was mailed 69 days late. The second deduction was mailed 55 days late. The third deduction was mailed 41 days late. The fourth deduction was mailed 27 days late. The fifth deduction was mailed 13 days late. Finally, the sixth deduction was mailed two days late. Thus, while Autozone was out of compliance with section 35 for a total of 72 days straight, the sum of days late for all pay periods totals 207 days.

 

The trial court determined that the Act is not ambiguous and requires the imposition of a separate series of penalties for each pay period. Thus, the court awarded Mary $20,700: $100 per day multiplied by 207 days. Autozone appeals.

 

Autozone lost and Mary DeRoos picked up a sweet $20,700.  Grams v. Autozone 319 Ill.App.3d 567, 253 Ill.Dec. 564, 745 N.E.2d 687, (3d Dist., 2001)

 

Million Dollar Win -- In re:  Marriage of Miller:  The facts of this case are somewhat astonishing:  despite numerous orders and opportunities to clera things up, the defendant employer seems to have simply ignored EVERY push and prod by the obligee and the court.  The result is an astonishing million dollar award.

 

Lenora Ann and Harold Miller divorce 1 May 2001.  ONe week later an $82 /  week Notice to Withhold Income was served on Harold's employer . . . his FATHER, an architect.  Harold's Dad/boss withheld the support from Harold's pay, but didn't timely turn it over to the S.D.U.  Within a year Lenora had to drag him in to court as a "third party."  The issue of his timely turnovers was still a problem two years later when he was STILL ten weeks behind.  The trial court imposed a $1,172,100 fine on Papa Miller.  The appellate court htought that was too hash and reversed the trial court's ruling and sent the case back for a re-figuring of a softer penalty.  The Illinois Supreme Court reversed the appellate court, noting "Our lawmakers are under no obligation to make unlawful conduct affordable."  Ouch.  In re:  Marriage of Miller, 879 N.E.2d 292, 227 Ill.2d 185, 316 Ill.Dec. 225 (Ill., 2007)

 

 

In re:  Marriage of Solomon, former husband's employer had been properly deducting child support bi-weekly and paying it over to Mother.  Former husband contacted the employer about a mistake in the diductions.  The employer corrected the error but, in doing so, switched the deducitons from bi-weekly to semi-monthly.  

 

Garnishing "Employers" of Independent Contractors:

 

Two Million Dollar Win --  Bos v. Country Chevrolet:  Scott Bos and Lisa Watson divorced in 2002. Scott was ordered to pay $230 per week for child support.  Scott Bos registered his foreign divorce in Cook COunty in January, 2010.  Scott Bos worked for Country Chevrolet.  Country was served with a Notice to Withhold Income but concluded it didn't have to garnish Scott's wages as, according to them, Scott was an independent contractor.  2010 D 630082, Circuit Court of Cook County. 

 

Vaughn v. Blue Cross Blue Shield of Illinois, 403 Ill.App.3d 830, 935 N.E.2d 123, 343 Ill.Dec. 483 (1st Dist., 2010).

 

 

 

Employer's Responsibilities:  Illinois law places several responsibilities on employers to ensure the proper collection and payment of child support.  The employer should provide to the employee a copy of the order when it is received.  Illinois employers should use Illinois limitations on withholding and administrative fees as well as for the time periods regarding when to begin withholding and when to turn over funds.  

 

Foreign Orders:  Illinois employers are supposed to honor child support orders from other states – just as though they were issued by an Illinois court – as long as they satisfy the requirement of Illinois law.  Specifically, to be enforced, any foreign order must include:  1) the amount to be withheld for support, 2) the duration of the support payments, 3) the identity and address of the person to receive the support, 4) the terms of any obligation to provide health insurance or other medical coverage, 5) the amount of any arrearage, and 6) the amount of any administrative fees that may be withheld.  When an Illinois employer violates a foreign order it becomes subject to the penalties laid out in Illinois law ($100 a day for each support payment not properly withheld and paid over).