June 15, 2006

Ask The Lawyer

What can a mom do when the child support check is late?

This week’s question:
I have a persistent problem with my ex-husband. He is often late with child and spousal support payments even though we both live in San Jose and I have a court order that he is supposed to obey. He's not a bad guy, just sometimes late. This is not only irritating, but costs me money. Just last week he was traveling and missed mailing his check to me on time. I had two of my checks bounce due to his irresponsibility! Also, it is just humiliating for me to have to beg for my support check so that I can pay my bills. And my credit rating is being damaged. Can anything be done about this?

Lindsey L.
Almaden Valley

Dear Lindsey:
I may have some good news for you, Lindsey. What often works is a "Earnings Assignment Order for Spousal or Partner Support" or an "Order to Withhold Income for Child Support." Sometimes these orders are called "wage assignments" or "garnishments."

These orders are court orders that are sent to the employer for the employed person. The employer is then required by law to deduct the court-ordered amount from the paycheck due the employee. That amount is then mailed to the person to whom the support is due, like you. It works similar to a deduction out of the paycheck for federal income tax, state income tax, and other such deductions. You would get your check each month by mail—regularly and on time.

The employer is instructed to follow the court order explicitly. "Earnings" is defined broadly as wages, salary, bonuses, vacation pay, retirement pay, and commissions paid by an employer. "Earnings" also includes payments for services of independent contractors as well as dividends, interest, rents, royalties, and residuals.

The wage assignment generally has priority over any other orders such as other garnishments or earnings withholding orders from the employee's paycheck.

The employer is directed to withhold money from the earnings payable to the employee as soon as possible but no later than 10 days after the order is received. The employer must send the withheld money to the payee, such as yourself, within 10 days of the pay date. The employer may deduct $1 from the employee’s earnings for each payment the employer makes.

If the employer fails to follow the order, the employer could be held liable for any amount not withheld and it and could be cited for contempt of court. Most employers want no part of that.

California law prohibits the employer from firing, refusing to hire, or taking any disciplinary action against any employee ordered to pay support through an earnings assignment. Such action can lead to $500 civil penalty per employee.

State law also requires the employer to notify you, the payee, if the employee changes his or her employment.

Under certain circumstances, the employee may apply to the court for a "stay" or stopping of the wage assignment. An example might be for a long time of regular, timely payments made without incident. Then the court may enter a "stay" temporarily with the wage assignment stopped assuming faithful compliance with the order.

You may want to see your own attorney about a wage assignment for support. If you cannot afford a private attorney, the Family Law Facilitator (FLF) at Family Court may help. It is also called the Family Law Clinic. Their address is 99 Notre Dame, San Jose. The Web site link is: http://www.scselfservice.org/fam/clinic.htm#flf.

So, you can see, Lindsey, that a wage assignment may be helpful for you. If it works properly, the employer for your former husband will deduct the support due correctly from his paycheck and you will get a check in the mail regularly so that you can pay your bills on time. And you won't have to put up with the humiliation of having to beg for the money due you.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.