Code Section Group

Family Code - FAM

DIVISION 9. SUPPORT [3500 - 5700.905]

  ( Division 9 enacted by Stats. 1992, Ch. 162, Sec. 10. )

PART 5. ENFORCEMENT OF SUPPORT ORDERS [4500 - 5616]

  ( Part 5 enacted by Stats. 1992, Ch. 162, Sec. 10. )

CHAPTER 8. Earnings Assignment Order [5200 - 5604]

  ( Chapter 8 enacted by Stats. 1992, Ch. 162, Sec. 10. )

ARTICLE 2. General Provisions [5230 - 5247]
  ( Article 2 enacted by Stats. 1992, Ch. 162, Sec. 10. )

5230.
  

(a) When the court orders a party to pay an amount for support or orders a modification of the amount of support to be paid, the court shall include in its order an earnings assignment order for support that orders the employer of the obligor to pay to the obligee that portion of the obligor’s earnings due or to become due in the future as will be sufficient to pay an amount to cover both of the following:

(1) The amount ordered by the court for support.

(2) An amount which shall be ordered by the court to be paid toward the liquidation of any arrearage.

(b) An earnings assignment order for support shall be issued, and shall be effective and enforceable pursuant to Section 5231, notwithstanding the absence of the name, address, or other identifying information regarding the obligor’s employer.

(Amended by Stats. 2000, Ch. 808, Sec. 57.3. Effective September 28, 2000.)

5230.1.
  

(a) An earnings assignment or income withholding order for support issued by a court or administrative agency of another state is binding upon an employer of the obligor to the same extent as an earnings assignment order made by a court of this state.

(b) When an employer receives an earnings assignment order or an income withholding order for support from a court or administrative agency in another state, all of the provisions of this chapter shall apply.

(Added by Stats. 1997, Ch. 599, Sec. 24. Effective January 1, 1998.)

5230.5.
  

Any obligee alleging arrearages in child support shall specify the amount thereof under penalty of perjury.

(Added by Stats. 1994, Ch. 1140, Sec. 2. Effective January 1, 1995.)

5231.
  

Unless stayed pursuant to Article 4 (commencing with Section 5260), an assignment order is effective and binding upon any existing or future employer of the obligor upon whom a copy of the order is served in compliance with Sections 5232 and 5233, notwithstanding the absence of the name, address, or other identifying information regarding the obligor’s employer, or the inclusion of incorrect information regarding the support obligor’s employer.

(Amended by Stats. 2000, Ch. 808, Sec. 57.5. Effective September 28, 2000.)

5232.
  

Service on an employer of an assignment order may be made by first-class mail in the manner prescribed in Section 1013 of the Code of Civil Procedure. The obligee shall serve the documents specified in Section 5234.

(Amended by Stats. 1997, Ch. 599, Sec. 25. Effective January 1, 1998.)

5233.
  

Unless the order states a later date, beginning as soon as possible after service of the order on the employer but not later than 10 days after service of the order on the employer, the employer shall commence withholding pursuant to the assignment order from all earnings payable to the employee.

(Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

5234.
  

Within 10 days of service of an assignment order or an order/notice to withhold income for child support on an employer, the employer shall deliver both of the following to the obligor:

(a) A copy of the assignment order or the order/notice to withhold income for child support.

(b) A written statement of the obligor’s rights under the law to seek to quash, modify, or stay service of the earnings assignment order, together with a blank form that the obligor can file with the court to request a hearing to quash, modify, or stay service of the earnings assignment order with instructions on how to file the form and obtain a hearing date.

(Amended by Stats. 1999, Ch. 480, Sec. 3. Effective January 1, 2000.)

5235.
  

(a) The employer shall continue to withhold and forward support as required by the assignment order until served with notice terminating the assignment order. If an employer withholds support as required by the assignment order, the obligor shall not be held in contempt or subject to criminal prosecution for nonpayment of the support that was withheld by the employer but not received by the obligee. If the employer withheld the support but failed to forward the payments to the obligee, the employer shall be liable for the payments, including interest, as provided in Section 5241.

(b) Within 10 days of service of a substitution of payee on the employer, the employer shall forward all subsequent support to the governmental entity or other payee that sent the substitution.

(c) The employer shall send the amounts withheld to the obligee within the timeframe specified in federal law and shall report to the obligee the date on which the amount was withheld from the obligor’s wages.

(d) The employer may deduct from the earnings of the employee the sum of one dollar and fifty cents ($1.50) for each payment made pursuant to the order.

(e) Once the State Disbursement Unit as required by Section 17309 is operational, the employer shall send all earnings withheld pursuant to this chapter to the State Disbursement Unit instead of the obligee.

(Amended by Stats. 2004, Ch. 520, Sec. 3. Effective January 1, 2005.)

5236.
  

The state agency or the local agency, designated to enforce support obligations as required by federal law, shall allow employers to simplify the process of assignment order withholding by forwarding, as ordered by the court, the amounts of support withheld under more than one order in a consolidated check, accompanied by an itemized accounting providing names, social security number or other identifying number, and the amount attributable to each obligor.

(Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

5237.
  

(a) Except as provided in subdivisions (b) and (c), the obligee shall notify the employer of the obligor, by first-class mail, postage prepaid, of any change of address within a reasonable period of time after the change.

(b) Where payments have been ordered to be made to a county officer designated by the court, the obligee who is the parent, guardian, or other person entitled to receive payment through the designated county officer shall notify the designated county officer by first-class mail, postage prepaid, of any address change within a reasonable period of time after the change.

(c) If the obligee is receiving support payments from the State Disbursement Unit as required by Section 17309, the obligee shall notify the State Disbursement Unit instead of the employer of the obligor as provided in subdivision (a).

(d) (1) Except as set forth in paragraph (2), if the employer, designated county officer, or the State Disbursement Unit is unable to deliver payments under the assignment order for a period of six months due to the failure of the obligee to notify the employer, designated county officer, or State Disbursement Unit, of a change of address, the employer, designated county officer, or State Disbursement Unit shall not make any further payments under the assignment order and shall return all undeliverable payments to the obligor.

(2) If payments are being directed to the State Disbursement Unit pursuant to subdivision (e) of Section 5235, but the case is not otherwise receiving services from the Title IV-D agency, and the State Disbursement Unit is unable to deliver payments under the assignment order for a period of 45 days due to the failure of the obligee to notify the employer, designated county officer, or State Disbursement Unit of a change of address, the Title IV-D agency shall take the following actions:

(A) Immediately return the undeliverable payments to the obligor if the obligee cannot be located.

(B) Notify the employer to suspend withholding pursuant to the wage assignment until the employer or Title IV-D agency is notified of the obligee’s whereabouts.

(Amended by Stats. 2004, Ch. 806, Sec. 1. Effective January 1, 2005.)

5238.
  

(a) Where an assignment order or assignment orders include both current support and payments towards the liquidation of arrearages, priority shall be given first to the current child support obligation, then the current spousal support obligation, and thereafter to the liquidation of child and then spousal support arrearages.

(b) Where there are multiple assignment orders for the same employee, the employer shall prorate the withheld payments as follows:

(1) If the obligor has more than one assignment for support, the employer shall add together the amount of support due for each assignment.

(2) If 50 percent of the obligor’s net disposable earnings will not pay in full all of the assignments for support, the employer shall prorate it first among all of the current support assignments in the same proportion that each assignment bears to the total current support owed.

(3) The employer shall apply any remainder to the assignments for arrearage support in the same proportion that each assignment bears to the total arrearage owed.

(Amended by Stats. 1997, Ch. 599, Sec. 29. Effective January 1, 1998.)

5239.
  

Arrearages of support payments shall be computed on the basis of the payments owed and unpaid on the date that the obligor has been given notice of the assignment order as required by Section 5234.

(Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

5240.
  

(a) Upon the filing and service of a motion and a notice of motion by the obligor, the court shall terminate the service of an assignment order if past due support has been paid in full, including any interest due, and if any of the following conditions exist:

(1) With regard to orders for spousal support, the death or remarriage of the spouse to whom support is owed.

(2) With regard to orders for child support, the death or emancipation of the child for whom support is owed.

(3) The court determines that there is good cause, as defined in Section 5260, to terminate the assignment order. This subdivision does not apply if there has been more than one application for an assignment order.

(4) The obligor meets the conditions of an alternative arrangement specified in paragraph (2) of subdivision (b) of Section 5260, and a wage assignment has not been previously terminated and subsequently initiated.

(5) There is no longer a current order for support.

(6) The termination of the stay of an assignment order under Section 5261 was improper, but only if that termination was based upon the obligor’s failure to make timely support payments as described in subdivision (b) of Section 5261.

(7) The employer or agency designated to provide services under Title IV-D of the Social Security Act or the State Disbursement Unit is unable to deliver payment for a period of six months due to the failure of the obligee to notify that employer or agency or the State Disbursement Unit of a change in the obligee’s address.

(b) In lieu of filing and serving a motion and a notice of motion pursuant to subdivision (a), an obligor may request ex parte relief, except ex parte relief shall not be available in the circumstances described in paragraphs (3) and (4) of subdivision (a).

(Amended by Stats. 2012, Ch. 77, Sec. 1. (AB 1727) Effective January 1, 2013.)

5241.
  

(a) An employer who willfully fails to withhold and forward support pursuant to a currently valid assignment order entered and served upon the employer pursuant to this chapter is liable to the obligee for the amount of support not withheld, forwarded, or otherwise paid to the obligee, including any interest thereon.

(b) If an employer withholds support as required by the assignment order, the obligor shall not be held in contempt or subject to criminal prosecution for nonpayment of the support that was withheld by the employer but not received by the obligee. In addition, the employer is liable to the obligee for any interest incurred as a result of the employer’s failure to timely forward the withheld support pursuant to an assignment earnings order.

(c) In addition to any other penalty or liability provided by law, willful failure by an employer to comply with an assignment order is punishable as a contempt pursuant to Section 1218 of the Code of Civil Procedure.

(d) If an employer withholds support, as required by the assignment order, but fails to forward the support to the obligee, the local child support agency shall take appropriate action to collect the withheld sums from the employer. The child support obligee or the local child support agency upon application may obtain an order requiring payment of support by electronic transfer from the employer’s bank account if the employer has willfully failed to comply with the assignment order or if the employer has failed to comply with the assignment order on three separate occasions within a 12-month period. Where a court finds that an employer has willfully failed to comply with the assignment order or has otherwise failed to comply with the assignment order on three separate occasions within a 12-month period, the court may impose a civil penalty, in addition to any other penalty required by law, of up to 50 percent of the support amount that has not been received by the obligee.

(e) To facilitate employer awareness, the local child support agency shall make reasonable efforts to notify any employer subject to an assignment order pursuant to this chapter of the electronic fund transfer provision and enhanced penalties provided by this act.

(f) Notwithstanding any other provision of law, any penalty payable pursuant to this subdivision shall be payable directly to the obligee. The local child support agency shall not be required to establish or collect this penalty on behalf of the obligee. The penalty shall not be included when determining the income of the obligee for the purpose of determining the eligibility of the obligee for benefits payable pursuant to state supplemental income programs. A court may issue the order requiring payment of support by electronic transfer from the employer’s bank account and impose the penalty described in this subdivision, after notice and hearing. This provision shall not be construed to expand or limit the duties and obligations of the Labor Commissioner, as set forth in Section 200 and following of the Labor Code.

(Amended by Stats. 2003, Ch. 308, Sec. 2. Effective January 1, 2004.)

5242.
  

Service of the assignment order creates a lien on the earnings of the employee and the property of the employer to the same extent as the service of an earnings withholding order as provided in Section 706.029 of the Code of Civil Procedure.

(Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

5243.
  

An assignment order for support has priority as against any attachment, execution, or other assignment as specified in Section 706.031 of the Code of Civil Procedure.

(Amended by Stats. 1993, Ch. 876, Sec. 26. Effective October 6, 1993. Operative January 1, 1994, by Sec. 37 of Ch. 876.)

5244.
  

A reference to the local child support agency in this chapter applies only when the local child support agency is otherwise ordered or required to act pursuant to law. Nothing in this chapter shall be deemed to mandate additional enforcement or collection duties upon the local child support agency beyond those otherwise imposed by law.

(Amended by Stats. 2000, Ch. 808, Sec. 61. Effective September 28, 2000.)

5245.
  

Nothing in this chapter limits the authority of the local child support agency to use any other civil and criminal remedies to enforce support obligations, regardless of whether or not the child or the obligee who is the parent, guardian, or other person entitled to receive payment is the recipient of welfare moneys.

(Amended by Stats. 2000, Ch. 808, Sec. 62. Effective September 28, 2000.)

5246.
  

(a) This section applies only to Title IV-D cases where support enforcement services are being provided by the local child support agency pursuant to Section 17400.

(b) In lieu of an earnings assignment order signed by a judicial officer, the local child support agency may serve on the employer a notice of assignment in the manner specified in Section 5232. An order/notice to withhold income for child support shall have the same force and effect as an earnings assignment order signed by a judicial officer. An order/notice to withhold income for child support, when used under this section, shall be considered a notice and shall not require the signature of a judicial officer.

(c) Pursuant to Section 666 of Title 42 of the United States Code, the federally mandated order/notice to withhold income for child support shall be used for the purposes described in this section.

(d) (1) An order/notice to withhold income may not reduce the current amount withheld for court-ordered child support.

(2) If the underlying court order for support does not provide for an arrearage payment, or if an additional arrearage accrues after the date of the court order for support, the local child support agency may send an order/notice to withhold income for child support that shall be used for the purposes described in this section directly to the employer which specifies the updated arrearage amount and directs the employer to withhold an additional amount to be applied towards liquidation of the arrearages not to exceed the maximum amount permitted by Section 1673(b) of Title 15 of the United States Code.

(3) Notwithstanding paragraph (2), if an obligor is disabled, meets the SSI resource test, and is receiving Supplemental Security Income/State Supplementary Payments (SSI/SSP) or, but for excess income as described in Section 416.1100 et seq. of Part 416 of Title 20 of the Code of Federal Regulations, would be eligible to receive SSI/SSP, pursuant to Section 12200 of the Welfare and Institutions Code, and the obligor has supplied the local child support agency with proof of his or her eligibility for and, if applicable, receipt of, SSI/SSP or Social Security Disability Insurance benefits, then the order/notice to withhold income issued by the local child support agency for the liquidation of the arrearage shall not exceed 5 percent of the obligor’s total monthly Social Security Disability payments under Title II of the Social Security Act.

(e) If the obligor requests a hearing, a hearing date shall be scheduled within 20 days of the filing of the request with the court. The clerk of the court shall provide notice of the hearing to the local child support agency and the obligor no later than 10 days prior to the hearing.

(1) If at the hearing the obligor establishes that he or she is not the obligor or good cause or an alternative arrangement as provided in Section 5260, the court may order that service of the order/notice to withhold income for child support be quashed. If the court quashes service of the order/notice to withhold income for child support, the local child support agency shall notify the employer within 10 days.

(2) If the obligor contends at the hearing that the payment of arrearages at the rate specified in the order/notice to withhold income for child support is excessive or that the total arrearages owing is incorrect, and if it is determined that payment of the arrearages at the rate specified in this section creates an undue hardship upon the obligor or that the withholding would exceed the maximum amount permitted by Section 1673(b) of Title 15 of the United States Code Annotated, the rate at which the arrearages must be paid shall be reduced to a rate that is fair and reasonable considering the circumstances of the parties and the best interest of the child. If it is determined at a hearing that the total amount of arrearages calculated is erroneous, the court shall modify the amount calculated to the correct amount. If the court modifies the total amount of arrearages owed or reduces the monthly payment due on the arrearages, the local child support agency shall serve the employer with an amended order/notice to withhold income for child support within 10 days.

(f) If an obligor’s current support obligation has terminated by operation of law, the local child support agency may serve an order/notice to withhold income for child support on the employer which directs the employer to continue withholding from the obligor’s earnings an amount to be applied towards liquidation of the arrearages, not to exceed the maximum amount permitted by Section 1673(b) of Title 15 of the United States Code, until such time that the employer is notified by the local child support agency that the arrearages have been paid in full. The employer shall provide the obligor with a copy of the order/notice to withhold income for child support and a blank form that the obligor may file with the court to request a hearing to modify or quash the assignment with instructions on how to file the form and obtain a hearing date. The obligor shall be entitled to the same rights to a hearing as specified in subdivision (e).

(g) The local child support agency shall retain a copy of the order/notice to withhold income for child support and shall file a copy with the court whenever a hearing concerning the order/notice to withhold income for child support is requested.

(h) The local child support agency may transmit an order/notice to withhold income for child support and other forms required by this section to the employer through electronic means.

(Amended by Stats. 2001, Ch. 651, Sec. 2. Effective January 1, 2002.)

5247.
  

Neither the local child support agency nor an employer shall be subject to any civil liability for any amount withheld and paid to the obligee, the local child support agency, or the State Disbursement Unit pursuant to an earnings assignment order or notice of assignment.

(Amended by Stats. 2003, Ch. 387, Sec. 8. Effective January 1, 2004.)

FAMFamily Code - FAM2