TCA § 36-5-501 — Income withholding

For any order of child support issued, modified, or enforced on or after July 1, 1994, the court shall order an immediate assignment of the obligor's income, including, but not necessarily limited to: wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, profit sharing, interest, annuities, and other income due or to become due to the obligor. The order of assignment shall issue regardless of whether support payments are in arrears on the effective date of the order. The court's order, shall include an amount sufficient to satisfy an accumulated arrearage, if any, within a reasonable time. The order may also include an amount to pay any medical expenses that the obligor owing the support is obligated or ordered to pay. Withholding shall not exceed fifty percent (50%) of the employee's income after FICA, withholding taxes, and a health insurance premium that covers the child, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court or the department, if appropriate. In the event the court does not order an immediate assignment pursuant to subdivision (a)(2), every order shall be enforceable by income assignment as provided in this chapter. Income assignment under this subsection (a) shall not be required: If, in cases involving the modification of support orders, upon proof by one party, there is a written finding of fact in the order of the court that there is good cause not to require immediate income assignment and the proof shows that the obligor has made timely payment of previously ordered support. “Good cause” shall only be established upon proof that the immediate income assignment would not be in the best interests of the child. The court shall, in its order, state specifically why such assignment will not be in the child's best interests; or If there is a written agreement by both parties that provides for alternative arrangements. Such agreement must be reviewed by the court and entered in the record. If the case is being enforced under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), and is subject to an assignment of support due to receipt of public assistance, the department of human services or its contractor must be notified of the request for exemption under subdivisions (a)(2)(A)(i) and (ii) and may present evidence for purposes of subdivision (a)(2)(A)(i), or must agree in order to permit exemption from income withholding as otherwise permitted pursuant to subdivision (a)(2)(A)(ii). Unless a court or administrative order stipulates that alternative health care coverage to employer-based coverage is to be provided for a child subject to a Title IV-D child support order, in any case in which a noncustodial parent is required by a court or administrative order to provide health care coverage for such a child, and the employer of the noncustodial parent is known to the department, the department shall use any federally-required medical support notices to provide notice to the employer of the requirement for employer-based health care coverage for such child through the child's parent who has been ordered to provide health care coverage for such child. The department shall send the federal medical support notice to any employer of a noncustodial parent subject to such an order within two (2) business days of the entry of such employee who is an obligor in a Title IV-D case into the directory of new hires under part 11 of this chapter. Within twenty (20) business days after the date of the medical support notice, the employer of a noncustodial parent subject to an order for health care coverage for the child shall transfer the notice to the appropriate plan providing such health care coverage for which the child is eligible. The employer shall withhold from the noncustodial parent's compensation any employee contributions necessary for coverage of the child and shall send any amount withheld directly to the health care plan to provide such health care coverage for the child. If the employee contests the withholding of such employee contributions, the employer shall initiate withholding until the contest is resolved. The employee/obligor shall have the right to contest the withholding order issued pursuant to subdivision (a)(3) based upon a mistake of fact according to the provisions for appeal provided pursuant to part 10 of this chapter. An employer shall notify the department promptly whenever the noncustodial parent's employment is terminated. The department shall promptly notify the employer when there is no longer a current order for medical support in effect for which the department is responsible. The liability of the noncustodial parent for employee contributions to the health care plan necessary to enroll the child in the plan shall be subject to all available enforcement mechanisms under this title or any other provision of law. Upon receipt of the notice required by this subdivision (a)(3) that appears regular on its face and that has been appropriately completed, the notice is deemed a qualified medical child support order under 29 U.S.C. § 1169(a)(5)(C)(i). The health insurance plan administrator of a participant under a group health plan who is the noncustodial parent of the child for whom the notice was received pursuant to this subdivision (a)(3), shall, within forty (40) business days: Notify the state Title IV-D agency of any state or territory that issued the notice with respect to whether coverage is available for such child under the terms of the plan, and, if so, whether such child is covered under the plan and either the effective date of the coverage or, if necessary, any steps to be taken by the custodial parent, or official of a state or political subdivision thereof substituted for the name of the child pursuant to 29 U.S.C. § 1169(a)(3)(A), to effectuate coverage. The department or its contractors, in consultation with the custodial parent, must promptly select from available plan options when the plan administrator reports that there is more than one (1) option available under the employer's plan; provided, however, if such response is not made to the plan administrator within twenty (20) business days, and if the plan has a default option for coverage, the plan administrator shall enroll the child in that default option. If there is no default option, the plan administrator may call the office of the department or contractor that sent the notice and seek direction as to the child's enrollment in the available plans; Provide the custodial parent or such substituted official a description of the coverage available and any forms or documents necessary to effectuate such coverage and permit the custodial parent or substituted official to file claims; Send the explanation of benefit statements to the custodial parent, substituted official and the employee; Send the reimbursement to the custodial parent, legal guardian or substituted official for expenses paid by the custodial parent, legal guardian or substituted official for which the child may be eligible under the plan; Nothing in subdivision (a)(3)(E) shall be construed as requiring a group health plan, upon receipt of a medical support notice, to provide benefits under the plan, or eligibility for benefits, under the terms of the plan in addition to, or different from, those provided immediately before receipt of such notice, except as may otherwise be required by title 56, chapter 7, part 23. In all cases in which the court has ordered immediate income assignment, the clerk of the court, or the department of human services or its contractor in Title IV-D cases, shall immediately issue an income assignment to an employer once the employer of an obligor has been identified. In all cases in which an immediate assignment of income has not been previously ordered, or in which an obligor who is ordered to pay child support in which an immediate income assignment was not required pursuant to subdivision (a)(2), and when the obligor becomes in arrears as defined in this subdivision (b)(1) as reflected in the records of the clerk of court, if the support is paid through the clerk's office or in the records of the department of human services, then the clerk of the court, or the department or its contractor in Title IV-D child support cases shall, without the necessity of an affidavit of the obligee, issue an order of income assignment to the employer of the obligor, if known, or at such time as the employer's name and whereabouts are made known to the clerk or the department or its contractor. No court order expressly authorizing an income assignment shall be required under this subdivision (b)(1)(B). The order of assignment issued by the department or its contractor pursuant to subdivisions (b)(1)(A) and (B) shall include an amount sufficient to satisfy an accumulated arrearage within a reasonable time without further order of the court. The order shall also include an amount to pay any medical expenses that the obligor owing the support is obligated or ordered to pay. Withholding shall not exceed fifty percent (50%) of the employee's income after FICA, withholding taxes, and a health insurance premium that covers the child, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court, if appropriate. In all other cases in which the child support payments were ordered to be paid directly to a parent or guardian or custodian of the child or children, and the child support payments are in arrears as defined in this subdivision (b)(1), the parent, guardian or custodian may, by affidavit filed with the clerk, or, the department or its contractor in Title IV-D child support cases, request that an order of income assignment be sent by the clerk of the court, or by the department, to the employer, if known, or at such time as the employer's name and whereabouts are made known to the clerk, the department or its contractor. No court order expressly authorizing an income assignment shall be required under this subdivision (b)(1). The order of assignment issued by the clerk or the department or its contractor pursuant to subdivision (b)(1)(D) shall include an amount sufficient to satisfy an accumulated arrearage within a reasonable time. The order may also include an amount to pay any medical expenses that the obligor owing the support is obligated or ordered to pay. Withholding shall not exceed fifty percent (50%) of the employee's income after FICA, withholding taxes, and a health insurance premium that covers the child, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court, if appropriate. An income assignment pursuant to this subsection (b) shall be mandatory even if subsequent to the issuance of the order of assignment the obligor pays the amount of arrearage in part or in full as long as current support or arrearages are still owed. For purposes of this part, “arrears” means any occasion on which the full amount of ordered support ordered for or on behalf of a minor child, or for a spouse or former spouse of the obligor with whom the child is living to the extent the spousal support would be included for the purposes of 42 U.S.C. § 654a(e)(4), is not paid by the due date for arrears as defined in § 36-5-101(f)(1) unless an income assignment is in effect and the payor of income is paying pursuant to subsection (g). Clerks of court are authorized to issue an order of income assignment to the employer of the obligor and to institute the process to assign income when the obligor fails to pay court costs, but shall not have priority over the income assignment for child or spousal support. When an order of income assignment has been issued pursuant to subdivision (b)(1)(B) or (b)(1)(D), the clerk, or the department in Title IV-D cases, shall send a notice to the obligor within two (2) business days of the issuance of the order of income assignment being sent to the obligor's employer. If the assignment is made pursuant to subdivisions (b)(1)(B) or (b)(1)(D), the notice must be sent to the address of the obligor, if known, or to the obligor at the address of the employer of the obligor if the obligor's address is unknown. In addition to any other required or pertinent information, all notices of assignment sent to the obligor who resides in this state pursuant to this section shall include: The amount of money owed by the obligor, including both current support and arrears; The amount of income withholding, except where otherwise ordered by the court, that shall be applied for current support, the amount that shall be applied for arrearages and the amount to be applied for alimony. The amount withheld shall be an amount reasonably sufficient to satisfy an accumulated arrearage within a reasonable time; Notice that the obligor has the right to a hearing before the court, or, in Title IV-D cases, an administrative review by the department of human services. The administrative hearing shall be conducted pursuant to part 10 of this chapter; and Notice that the obligor must request the hearing by notifying the clerk, or the department in Title IV-D cases, within fifteen (15) days of the date of the notice, or the date of personal service, if used. Orders of income assignment issued by the department of human services or its contractors shall be filed with the court. In all Title IV-D child or spousal support cases in which payment of such support is to be made by income assignment, and in all cases where payments made by income assignment based upon support orders entered on or after January 1, 1994, that are not Title IV-D support cases but must be made to the central collection and disbursement unit as provided by § 36-5-116, the court, the clerk of court, or the department or its contractors shall only order that the support payments be made by income assignment to the central collection and disbursement unit pursuant to § 36-5-116. No agreement by the parties in a parenting plan, either temporary or permanent, entered pursuant to chapter 6, part 4 of this title, or any other agreement of the parties or order of the court, except as may otherwise be allowed by subdivision (a)(2)(B), shall alter the requirements for payment by income assignment to the central collection and disbursement unit as required by § 36-5-116, and any provision of any parenting plan, agreement or court order providing for any other payment procedure contrary to the requirements of § 36-5-116, whether or not approved by the court, except as may otherwise be allowed by subdivision (a)(2)(B), shall be void and of no effect. No credit shall be given by the court, the court clerk or the department of human services for child or spousal support payments required by the support order that are made in contravention of such requirements; provided, however, the department may make any necessary adjustments to the balances owed to account for changes in the Title IV-D or central collection and disbursement status of the support case. The payment of child support through the centralized collection and disbursement unit established pursuant to § 36-5-116 does not establish the case as a Title IV-D case unless the case otherwise meets the criteria of § 71-3-124 for a case, in which the department of human services will provide child support services to an assignor of support rights or to any person who has otherwise applied for such services. If the obligor is self-employed, or if the obligor is a partner, member, owner or officer of a partnership, limited liability company, corporation or other association or business entity from which the obligor receives compensation in the form of wages, salary, commissions, bonuses or otherwise, then the court may order the obligor, or the business entity of which the obligor is a partner, member, owner or officer, if applicable, to establish a bank account for the sole purpose of complying with the order issued pursuant to subsection (a). The order issued pursuant to subsection (a) shall specify the amount of the obligor's compensation that is to be deposited into the account and the frequency by which the deposits are to be made, whether weekly, biweekly or monthly. Within ten (10) days of the issuance of the order pursuant to subsection (a), the obligor or business entity shall provide the department with written authorization for the department's central collection and disbursement unit to receive from the account, by automatic bank withdrawal, the amount ordered by the court to be deposited into the account. Failure to either deposit the required amount into the account or to authorize automatic withdrawal of the required amount by the department's central collection and disbursement unit is failure to comply with a child support order, which shall be punishable as civil contempt. As used in subdivision (b)(6)(A), “self-employed” means earning one's livelihood directly from one's own business, trade or profession rather than as a specified salary or wages from an employer. In the event the obligor requests a hearing in cases not being enforced pursuant to Title IV-D regarding the withholding as provided in subdivisions (b)(1)(B) within fifteen (15) days of the date of the notice, or the date of personal service, if used, the clerk shall promptly docket the case with the magistrate or court as provided by part 4 of this chapter, shall give notice to all parties, and shall take any other action as is necessary to ensure that the time limits provided in subsection (d) are met. If the withholding was issued by the department or its contractor in Title IV-D cases and the obligor requests an administrative hearing as permitted by part 10 of this chapter, the department shall promptly schedule the case for a hearing, shall give notice to all parties, and shall take any other action as is necessary to ensure that the time limits provided in subsection (d) are met. In all cases in which the obligor requests a hearing or administrative review, the magistrate or court, or the department, shall conduct a hearing and make a determination, and the clerk or department shall notify the obligor and the employer of the decision within forty-five (45) days of the date of the order provided in subdivision (b)(1). The obligor may contest the results of the department's administrative review by requesting a judicial review as provided in part 10 of this chapter. The amount to be withheld under the income assignment withheld for support may not be in excess of fifty percent (50%) of the income due after FICA, withholding taxes, and a health insurance premium that covers the child are deducted. The assignment or any subsequent modification is binding upon any employer, person or corporation, including successive employers, fourteen (14) days after mailing or other transmission or personal service of the order from the clerk of the court, or from the department by administrative order of income assignment, pursuant to this section. The employer, person or corporation has a fiduciary duty to send amounts withheld for payment of a child support obligation to the clerk or the department's central collection and disbursement unit as directed in the income assignment order, or, if based upon a direct withholding from another state pursuant to the Uniform Interstate Family Support Act, compiled in parts 20-29 of this chapter, to the other state as directed by that order of assignment. The amount shall be sent by the employer, person or corporation within (7) days of the date the person obligated to pay support is paid, the date the person is to be paid or the date the amount due such person is to be credited. The order is binding until further notice. The employer, person, corporation or institution shall provide notice to the clerk, the department, or the entity in the other state to which the withheld income was to be sent of termination of employment or income payments to the employee. Any employer, person, corporation or institution that files for bankruptcy or ceases to operate as a business shall provide notice to the clerk or the department of the bankruptcy or cessation of business upon filing bankruptcy or at least ten (10) days prior to ceasing to operate as a business. Any notice provided pursuant to this subsection (g) shall include the names of all the affected employees subject to an income assignment, the last known address of each of those employees, and the name and address of the new employer or source of income of each of those employees, if known. Failure of any employer, person, corporation or institution to pay income withheld to the clerk or clerks, to the department, its contractor, or other entity, or Title IV-D child support agency in any other state that issued the order, as may be directed by the income assignment order, is a breach of a fiduciary duty to the obligor. Any action alleging breach of fiduciary duties by an employer, person, corporation or institution pursuant to this section shall be brought within one (1) year from the date of the breach or violation; provided, that in the event the alleged breach or violation is not discovered or reasonably should have been discovered within the one-year period, the period of limitation shall be one (1) year from the date the alleged breach or violation was discovered or reasonably should have been discovered. In no event shall an action be brought more than three (3) years after the date on which the breach or violation occurred, except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after the alleged breach or violation is, or should have been, discovered. For any order of alimony in solido, in futuro or rehabilitative issued, modified or enforced on or after April 24, 2002, the court may order immediate assignment of the obligor's income, including, but not necessarily limited to: wages, salary, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, profit sharing, interest, annuities and other income due or to become due to the obligor. The order of assignment shall issue regardless of whether support payments are in arrears on the effective date of the order. The court's order may include an amount sufficient to satisfy an accumulative arrearage, if any, within a reasonable time. Withholding shall not exceed fifty percent (50%) of the employee's income after FICA, withholding taxes, and a health insurance premium that covers the child, if any, are deducted. The order shall also include an amount necessary to cover the fee due the clerk of the court, if appropriate. It is unlawful for an employer to use the assignment as a basis for discharge or any disciplinary action against the employee. Compliance by an employer, other person, institution or corporation with the order shall operate as a discharge of the liability of such employer, other person, institution or corporation to the affected individual as to that portion of the income so affected. An employer shall be subject to a fine for a Class C misdemeanor if the income assignment is used as a basis to refuse to employ a person or to discharge the obligor/employee or for any disciplinary action against the obligor/employee or if the employer fails to withhold from the obligor's income or to pay such amounts to the clerk or to the department as may be directed by the withholding order. An assignment under this section shall take priority over any other assignment or garnishment of wages, as described in title 26, chapter 2, or salary, commissions or other income, except those deductions made mandatory by law or hereafter made mandatory. If the employer, person, corporation, or institution receives more than one (1) order of income assignment against an individual, the employer, person, corporation, or institution must: Comply by giving first priority to all orders for amounts due for current support credited in the following order: child support, medical support, and spousal support; Comply by giving second priority to all orders for amounts due for arrearages credited in the following order: child support, medical support, and spousal support; and Honor all withholdings to the extent the total amount withheld from wages does not exceed fifty percent (50%) of the employee's wages after FICA, withholding taxes, and a health insurance premium that covers the child are deducted. Any employer, person or entity receiving an order for income withholding from another state or territory shall apply the income withholding law of the state of the obligor's principal place of employment in determining: The employer's fee for processing an income withholding order; The maximum amount permitted to be withheld from the obligor's income; The time periods within which the employer must implement the income withholding order and forward the child support payment; The priorities for withholding and allocating income withheld for multiple child support obligees; and Any withholding terms and conditions not specified in the order. The “principal place of employment” for an obligor who is employed in this state and for whom an income withholding order has been received in this state from another state or territory shall be deemed to be this state, and the provisions set forth in the requirements of this section regarding income withholding shall apply to the determinations made in subdivisions (j)(2)(B)(i)-(v). If any employer, person, or other entity receives any income assignment for current support against an individual that would cause the deduction from any two (2) or more assignments for current support to exceed fifty percent (50%) of the individual's income after FICA, withholding taxes, and a health insurance premium that covers the child are deducted, then the allocation of all current support ordered withheld by all income assignments they receive against that individual shall be determined by the employer, person, or entity as follows: The employer, person, or other entity shall determine the total dollar amount of the assignments for current support it has received involving the obligor to whom it owes any wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, profit sharing, interest, annuities, and other income due or to become due to the obligor; Each individual assignment shall then be calculated as a percentage of the total obtained pursuant to subdivision (j)(3)(A)(i); The employer, person, or entity shall then allocate the available income of the obligor, subject to the limits described in this subsection (j), based on the percentage computation pursuant to subdivision (j)(3)(A)(ii) and shall, as directed by the order of income assignment, pay the amounts withheld from the obligor's income, to the clerk or clerks, or to the department, its contractor, or other entity or Title IV-D child support agency in any other state that issued such order. In the event all current support obligations are met from the assignments and support arrearages exist in more than one (1) case and there is not sufficient income to pay all ordered support arrearages, then the support arrearages shall be allocated on the same basis as set forth in subdivision (j)(3)(A). The obligor shall be responsible for seeking any modifications to the existing orders for support. An employer, person, corporation or institution may make one (1) payment to the clerk of the court, the department, its contractor or other entity in another state so long as the employer separately identifies the portion of the single payment attributable to each individual obligor parent, and, if amounts are included that represent withholdings for more than one (1) pay period, so long as the amounts representing each pay period are separately identified. “Employer, person, corporation or institution,” as used in this section, includes the federal government, the state and any political subdivision thereof and any other business entity that has in its control funds due to be paid to a person who is obligated to pay child support. “Spousal support” for purposes of enforcement of child support by the department of human services under the Title IV-D child support program means a legally enforceable obligation assessed against an individual for the support of a spouse or former spouse who is living with a child or children who are receiving child support services from the department and for whom the individual also owes support. Income assignments pursuant to this part that are enforced as part of the Title IV-D services provided by the department shall apply to spousal support obligations as defined in this subdivision (k)(2). Any employer, person, corporation or institution that is ordered to pay an income assignment on behalf of an individual may charge the obligor parent an amount of up to five percent (5%) not to exceed five dollars ($5.00) per month for such service. The notices and orders required to be issued pursuant to this section shall be transmitted to any party or person by any method chosen by the court or the department, including, but not limited to: certified mail, return receipt requested, regular mail, electronic mail, facsimile transmission, or by personal service, and may be generated by computer or on paper. The notices and orders required by this section need not be entered in the minutes of the court. If a notice or order is returned or otherwise not deliverable, then service shall be had by any alternative method chosen by the court or the department, as listed in this subsection (m). Before taking action against an employer or other payor for failure to comply with this part, the court or department shall ensure that service of the notice or order was made by certified mail or by personal service. Electronically reproduced signatures shall be effective to issue any orders or notices pursuant to this section. There shall be no litigation tax imposed on proceedings pursuant to this part. The department of human services shall have authority to establish mandatory rules, forms and any necessary standards and procedures to implement income assignments, which shall be used by all the courts and by the department pursuant to this part. The department of human services may implement the use of such forms at any time after July 1, 1997, by emergency rule following approval by the attorney general and reporter. Permanent rules implementing the forms shall be promulgated pursuant to the rulemaking provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Prior to the filing of a notice of rulemaking for permanent rules pursuant to this subsection (o), the rules shall be sent by the department for review by an advisory group composed of two (2) representatives of the state court clerks’ conference appointed by the president of the state court clerks’ conference; two (2) representatives of the judges of courts that have child support responsibilities, one (1) of whom will be appointed by the chief justice of the supreme court and one (1) of whom will be appointed by the president of the council of juvenile and family court judges; a representative of the administrative office of the courts; and two (2) representatives of the department of human services designated by the commissioner. Nothing contained herein shall be construed to prevent the department from filing any notice of rulemaking prior to or at the time the proposed permanent rules are sent to the advisory group where the department determines that immediate filing of the notice without prior review by the advisory group is necessary to meet any requirements relative to the potential expiration of emergency rules or to comply with any federal statutory or regulatory requirements or any federal policy directives. If any employer, person, corporation or institution fails or refuses to comply with the requirements of this section, then that employer, person, corporation or institution is liable for any amounts up to the accumulated amount that should have been withheld. In addition, that employer, person, corporation or institution may be subject to a civil penalty to be assessed and distributed pursuant to the requirements of this subsection (p). Upon the first failure to comply with an order of income assignment, that employer, person, corporation or institution may be subject to a civil penalty of one hundred dollars ($100) per obligor for whom an order of income assignment was received, two hundred dollars ($200) per obligor for the second failure to comply and five hundred dollars ($500) per obligor for each occurrence thereafter. The civil penalty, when assessed and collected by the department of human services, shall be prorated among the children for whom the income assignment order was issued and with which the employer, person, corporation or institution failed to comply. If there are multiple income assignments for an obligor, the prorated amounts of the civil penalty shall be distributed to the children in the proportion that each order for which the income assignment was issued is to the total amount of all income assignments with which the employer, person, corporation or institution failed to comply. The civil penalty amount received by the children shall not reduce in any manner the amount of support owed by the obligor parent, but shall be received in addition to all ordered child support. Penalties authorized by this section shall be assessed by the commissioner of human services after written notice to the employer, person, corporation or institution. The notice shall provide fifteen (15) days from the mailing date of the notice for the employer, person, corporation or institution to file a written request to the department for appeal of the civil penalty. If an appeal is timely filed with the department, the department shall set an administrative hearing on the issue of the assessment pursuant to the Uniform Administrative Procedures Act, relative to contested case hearings. Failure to timely appeal the assessment of the civil penalty shall be final and conclusive of the correctness of the assessment. Any amount found owing shall be due and payable not later than fifteen (15) days after the mailing date of the determination. Failure to pay an assessment shall result in a lien against the real or personal property of the employer, person, corporation or institution in favor of the department. If an assessment is not paid when it becomes final, the department may collect the amount of the civil penalty by any available administrative enforcement procedures or by court action. The nonprevailing party shall be liable for all court costs and litigation taxes of the proceedings and shall be liable to the department for the cost of any private, contract or government attorney representing the state and for the time of any of its Title IV-D or contractor staff utilized in litigating the assessment. Any appeal of the action of the commissioner pursuant to this section shall be made in conformity with § 36-5-1003.