Once the court orders you to pay spousal or partner support, you must make the monthly spousal or partner support payments starting on the date the judge orders. In every case ordering spousal or partner support, the court will order that a wage assignment (also called “wage garnishment”) be issued and served. The wage assignment tells your employer to take the support payments out of your wages.
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Pay Spousal Support
One spouse can ordered by a court to pay spousal support or the parties can agree to how and when one spouse is to pay spousal support to the other spouse.
Generally, both parties can agree that payments can be made in some other way and can ask that service of the wage assignment (sending the wage assignment to the employer) be “stayed” (put on hold). In this situation, the parties work out how spousal or partner support will be paid and handle it between them.
In some cases, the local child support agency (LCSA) is involved. The LCSA is only involved if there is also a child support order in your case and if you asked them for help enforcing all support payments (spousal/partner and child support). The LCSA may also be involved if you gets public assistance for your children (like CalWORKS). If the LCSA is involved, the LCSA has to agree to have the wage assignment “stayed.” If the spouse/partner getting child and spousal or partner support is not getting public assistance, the LCSA will probably agree to both of you working the payments out between you.
After the court decides the amount of spousal or partner and/or child support, the earnings assignment (also called “wage garnishment”) tells the employer how much to deduct from each paycheck and where to send the payment.
With an earnings assignment, if you are regularly employed, the employer will take support payments directly out of your paycheck. Most support is paid this way, and federal and state laws require it in almost all support cases. It is the employer’s responsibility to withhold the wages if there is an earnings assignment. If you also have a child support earnings assignment in place, child support is deducted first. Spousal or partner support assignments come after child support earnings assignments.
If the local child support agency (LCSA) is involved in your case, they will automatically issue the earnings assignment and begin collecting from your paycheck through your employer. If the LCSA is not involved in your case, your former spouse or domestic partner, or the court itself, will prepare an earnings assignment and send it to your employer.
Once the earnings assignment is served on the employer, the employer has 10 days to start taking the money out from your next paycheck. If the local child support agency (LCSA) is involved in your case, the earnings assignment is sent to your employer within 15 days of the date the LCSA finds the employer. The employer must deduct the support from your wages and send it to the LCSA within 10 days. If the earnings assignment is for spousal or partner support only, the employer will forward the payments to the supported spouse or partner directly.
When an earnings assignment includes child support, employers must send the payments withheld to the California State Disbursement Unit (SDU). This means that the spousal or partner support (with the child support) payments will probably come to the person getting support from the SDU and not directly from the paying person’s employer (or from the LCSA if they are involved in your case). Getting payments through the SDU does not mean that you have a case with the local child support agency.
In general, you cannot fight an earnings assignment (also called a “wage garnishment”) in court because earnings assignments are allowed by law. However, in some circumstances you can object to the earnings assignment issued to your employer. For instance, if you and your former spouse or partner have an agreement that says there will be no earnings assignment, it may be possible to ask the court to review your case.
When an earnings assignment order is sent to your employer, your employer will give you a blank Request for Hearing Regarding Earnings Assignment form. You have 10 days from when you receive this form to ask for a hearing on the earnings assignment. On the form, you will have a chance to explain why you do not want your wages garnished. When you go to court, the judge will make a decision.
The reasons you can ask for the earnings assignment to be canceled are:
You and your former spouse or partner have an agreement that you will pay your spousal or partner support directly (and if the LCSA is involved, they agree too).
You have made payments on time for the last 12 months without an earnings
assignment? you do not owe any back spousal or partner support? the earnings assignments would cause an undue hardship? and, when child support is included, it would be in your children’s best interest to cancel the earnings assignment (if you have children and the earnings assignment includes child support).
In some cases, you may be able to get a “stay” of (a “hold” on) the service of the earnings assignment, which means that the earnings assignment would not be sent to your employer and you would be able to pay on your own.
In general, the reasons you can ask for a “stay” of the service of the earnings assignment are:
- If you have a history of making payments on time?
- If the earnings assignments would cause an undue hardship? or
- If the reason you are behind is that your checks to the other person have been undeliverable for 6 months.
If your employer is taking too much out of your paycheck and you cannot afford it, there may be something you can do. It depends on what amounts are being taken from your check. If your employer is just taking out the monthly spousal or partner support that the court ordered (without anything added to it), then there is probably nothing you can do except go to court to ask for your spousal or partner support to be changed. But, if you just had a court hearing and that is the order the judge made and nothing has changed since the hearing, you probably will not succeed since the order shows the amount the judge ruled you have to pay.
If your employer is taking out an amount much higher than what your monthly spousal or partner support order says, you probably have a past due spousal or partner support balance. In this case, there may be something you can do. The court (and the LCSA if they are involved in your case) has a little more flexibility in how much money you have to pay every month to start paying off your past due support.