Child support is a financial obligation that state and federal laws take seriously. If you owe support, it’s virtually impossible to get out of paying it. Whether you’re current with payments or you’re behind and owe arrears, the money is probably going to come out of your paycheck. Most states require that support be paid through their child support enforcement units so the state can keep track and make sure kids are getting the money they deserve.
Current Child Support
The vast majority of state courts require that you pay child support through income withholding – this helps guarantee that the payments are made. It's not left up to a parent to remember to write a check. An income withholding order, or IWO, is sent to your employer, requiring that he deduct your current support from your paycheck and send the money to your state’s child support unit.
This is a federal rule, but states are permitted to fine-tune it to meet their own standards. For example, some states will waive income withholding if parents jointly make the request. But other states will consider it a gift made to your children if you pay child support directly to your ex rather than to the state child support unit. You won’t get credit for it on your child support account with the state.
Past Due Child Support
If you fall behind with your support obligation, you may be subject to income withholding for current support as well as garnishment for the arrears. The regular IWO remains in effect, and the state can garnish your wages for the past due amount as well. You must be left with at least 50 percent of your pay after both deductions if you’re supporting other children in addition to those covered by your child support order. If you’re not, your employer must withhold 60 percent of your pay, and this goes up to 65 percent if you’re 12 weeks or more behind and have no other children.
Other creditors must take you to court and get a judgment against you before they can garnish your wages, but child support is exempt from this rule.
Request a Hearing
If your pay is being garnished for past due support and you feel that you don’t owe it, you can petition the court to set things right. If you’re successful, the court will erase your arrears and the garnishment should stop. But you have the burden of proof to show why you don’t owe the money. For example, maybe your child moved in with you some time ago so you should not have been obligated to pay support after that date.
You can also file a motion asking the court to reduce your current child support payments if you’ve experienced a significant change in your financial circumstances, such as that you lost your job and you’re unable to find new work. You'll have to prove that your financial situation has changed, but the amount of support you pay going forward can be recalculated to be less. This can keep you from falling even further behind if you can just make your payments going forward, but recalculations don't usually automatically erase or vacate arrears.
Ask for Arrears Forgiveness
You might have one other option to stop garnishment for arrears, but it depends on where you live. Many states offer forgiveness or compromise programs if you owe past due support. If you’re eligible, the state will reduce your arrears incrementally over a period of a few years provided that you make all your current support payments on time. The rules vary by state, and a handful of jurisdictions don’t provide for this type of relief at all. Some require that your arrears must exceed a certain dollar amount before you qualify; others require that your income must be a certain percentage below the federal poverty level.
And arrears forgiveness only applies if you owe the support to the state, not your ex. This isn't the same as paying your ex through your state's child support enforcement unit. It happens when her support has been assigned to the state, typically because she’s receiving public assistance on behalf of your children because you haven’t been able to pay support. When this happens, parents must usually assign their support payments to the government -- they don’t get to collect both assistance and your child support money.
If you owe the past due support directly to your ex, the state can’t force her to erase your arrears through a forgiveness program.