Friday, April 12, 2013

BIG Fines for Employers who don't comply BUT child support withholding order MUST be complete Appellate Court Rules

The case of  Schultz v. Performance Lighting, Inc. (2nd Dist 2013) highlights the absolute importance of fully completing a withholding order for support AND a client's interest in giving their attorney all of the information necessary to successfully handle their case. I often tell client's "information is ammunition to your attorney" if you give me none, I have nothing to fight with for you. This includes even mundane information like the obligor's social security number.
It is the law in Illinois that if the employer of someone order to pay support does not honor the withholding order, there can be serious liabilities. In this case, the mother was owed child support through a withholding order and tried to enforce the law that says the employer can be liable for up to $100 a day for refusing to honor a withholding order. This is a serious situation and employers have been fined for tens of thousands of dollars for this.
In the case referenced above the former wife sought to recover child support that should have been withheld from the paychecks of her former husband but her case was dismissed because of her failure to strictly comply with the requirements of the Income Withholding for Support Act that her mandated that her former husband’s social security number be included in the notice of withholding served on his employer rendered the notice invalid.

Pursuant to section 35 of the Act (750 ILCS 28/35) the employer owed a duty to the former wife to comply with the notice of withholding. The former wife alleged that the employer breached its legal duty to withhold and triggered a penalty of $100 for each day the employer failed to pay child support through the State Disbursement Unit.
The employer, however successfully defended itself by claiming that because the former wife's notice of withholding did not comply with the statute because it did not have the husband's social security number or list the children's date they were to be emancipated THUS its duty to withhold and pay over a portion of her ex-husband’s paychecks was never triggered the obligation to withhold.
Again, make sure your paperwork to the employer is accurate and make sure you contact your attorney when payments don't get paid. The amounts for support are still due even if not withheld from a paycheck but it's much easier to get from an employer and if the employer refuses to withhold, there are some serious damages that can be collected under the right conditions