The advent of federal welfare reform has had far-reaching effects in the area of child support enforcement.
States receiving federal assistance must now implement policies to recover public funds expended in the form of public aid and take steps to lessen their citizen’s dependence on these benefits.
This has left states, including Illinois, scrambling to comply with the requirements of the new federal legislation.
Income withholding is seen as a vital tool in the drive to reduce the dependence of children and families on public funds for their support.
It is key to both recouping the public funds expended when parents fail in this important obligation and to reducing the need for these public funds in the future.
The aggressive use of income withholding to ensure that parents support their children is not simply morally appropriate: for many children and their custodial parents, it is now vital to their survival.
The new federal welfare reforms limit a person’s welfare benefits to a maximum of 60 months in a lifetime. Thus, the collection and enforcement of child support is critical to the survival of these families.
The heightened importance of income withholding has prompted changes in both the form and content of Illinois’ income withholding statute.
On June 19, 1997, in response to these new federal mandates, Governor Edgar signed into law Public Act 90-18. This Act, which became effective July 1, 1997, makes broad changes to the law of income withholding.
The Act is 379 pages in length. It eliminates income withholding orders entirely and replaces them with the income withholding notice.
This article is intended to only address the major points of this important new legislation as it affects income withholding in the area of child support enforcement.
Where Does The Act Create The Most Change?
The most significant changes contained in P. A. 90-18 affect Section 51706.1 of the Illinois Marriage and Dissolution Act, Section 20/26.1 of the Revised Uniform Reciprocal Enforcement of Support Act and Section 20 of the Illinois Parentage Act of 1984.
The current edition of the Illinois Compiled Statutes contains a version of each statute which was to take effect on July 1, 1997. Beware! Even these versions have been affected by the new legislation. The structure of these sections has been changed and new requirements have been added.
However, don’t lose heart: not all provisions of the old statutes were repealed by the new Act. The provisions for income withholding previously found in the IMDA, URESA and the Illinois Parentage Act were worded identically. The changes made to these statutes by P. A. 90-18 are similarly uniform. What was done to one was done to all. Therefore, to avoid cluttering this article with multiple citations, the changes to Section 5/706.1 of the lilinois Marriage and Dissolution Act will serve as the blueprint for our discussion. You should keep in mind that the changes apply equally to URESA and the Illinois Parentage Act of 1984 as well.
The new Act significantly changes Subsection 5/706.1 (B). The title to this subsection has been changed from "Entry of an Order for Withholding" to "Entry of Order for Support Containing Income Withholding Provisions; Income Withholding Notice." This change signals the manner in which the new legislation affects the content of all support orders entered after July 1, 1997, and heralds the requirement of a new "income withholding notice" in place of the old income withholding order.
Every support order entered on or after July 1, 1997 must include the obligor’s Social Security Number and set a specific dollar amount to be paid in the event the obligor becomes delinquent after the order is entered. This amount may not be less than 20% of the combined sum of the current support obligation plus any periodic payment to reduce any existing arrearage. As you will see, this requirement is key to the operation of the new law.
In addition, any support order must also include a provision for the child’s health care coverage and require that the child be named as a beneficiary of any health care plan available to the obligor through his employer or union. 750 ILCS 5/505.2(b)(1).
What Is An Income Withholding Notice?
The most far-reaching change wrought by P. A. 90-18 involves the elimination of the income withholding order. Its replacement, the income withholding notice, is a notice, not an order. Any support order entered on or after July 1, 1997 must also require that an "income withholding notice" (IWN) be prepared and served immediately upon any payor of the obligor, unless the parties reach a court-approved, written agreement ensuring the payment of child support. The new income withholding notice takes the place of the income withholding order but, as you will see, with some key differences.
The mandated use of an income withholding notice is part of the federal effort to bring simplicity and uniformity to child support enforcement nationwide. The notice must be in a form prescribed by the federal Department of Health and Human Services and must contain the provisions discussed below. You will find a copy of this form at the conclusion of this article.
Prior to the passage of P. A. 90-18, an order of withholding was required to include six elements. The new income withholding notice includes these in a somewhat modified form and adds three more. These new elements are found in points (d), (e) and (f) below. The income withholding notice must:
a. Direct the payor to withhold the dollar amount required for current support;
b. Direct the payor to withhold the dollar amount required to be paid periodically to reduce any arrearage set by the support order,
c. Direct the payor or union to enroll the child as a beneficiary of any group health plan and withhold the necessary premium;
d. State the amount of the payor’s income withholding fee (up to $5.00);
e. Inform the payor that the amount it withholds, including its fee, may not exceed the limits set by the federal Consumer Credit Protection Act;
f. State the duties of the payor and the fines and penalties for failing to comply with the notice or for penalizing the obligor because of the duty to withhold (these are discussed below and found in Section 5/706.1 (E) of P. A. 90-18 formerly Section 5/706.1 (G), and are slightly modified by the new Act);
g. State the rights, duties and remedies of the obligor (these are also discussed below and found under Sections 5n06.1 (C)(3), (D)(3), and (F) of P. A. 90-18, formerly Section 5/706.1(D), (B)(8), and (H), but are significantly modified by the new Act),
h. Include the oligor’s Social Security Number, and
i. Include the date that withholding for current support ends. 750 ILCS 706.1(B)(3).
If the court does not order immediate service of the Income Withholding Notice, certain additional allegations must be included in the income withholding notice when it is served. These are discussed in the section which follows.
When May The IWN Be Served And How May It Be Contested By The Obligor?
As with the old statute, P. A. 90-18 presumes immediate service of the income withholding notice will be the norm. The immediate service of an income withholding notice can only be avoided if the parties’ written agreement to ensure the payment of support by alternate means is approved by the court. However,
P. A. 90-18 adds a new restriction to this exception. In the past, the court could not approve such an agreement if the obligor was 30 days late in paying child support at the time of any hearing, or had accrued an arrearage equal to one month’s support obligation. Now, if any arrearage has accrued at the time of any hearing, the court must order immediate service of the income withholding notice, the parties’ agreement notwithstanding. 750 ILCS 5/706.1(B)(5).
If immediate service is not ordered, P. A. 90-18 permits future service of the IWN if the parties’ written agreement no longer ensures the payment of support. Section 5/706.1 (D). This is true even if no delinquency has arisen since the latest support order was entered. But, the new law makes one important change. It permits immediate service of the income withholding notice without advance notice to the obligor. Gone now are the 20 day waiting period, the need to obtain a court order if a petition to contest is filed by the obligor and the need to file an affidavit with the Clerk of the Circuit Court if it is not. The obligor need only prepare the IWN as required by Section 5/706.1 (B)(3), add an allegation that the parties’ agreement no longer ensures the payment of support and the reasons why it does not, and serve the IWN on the payor while simultaneously sending a copy to the obligor. Withholding begins immediately. 750 ILCS 5no6. 1 (D).
This expedited procedure is not limited to cases where immediate service of the IWN was withheld by the support order. It is also available anytime a delinquency occurs. 750 ILCS 5/7O6.1 (C). P. A. 90-18 eliminates the need to wait until the obligor is one month behind or is 30 days late in complying with his support obligation before relief may be sought. It also eliminates the old "notice of delinquency" previously required by Section 5/706.1 (C). Now, the moment a delinquency occurs, the obligee simply prepares an income withholding notice which includes the elements required by Section 5/7O6.1(B), and adds the following information:
a. a computation of the period of the delinquency as of the date of the notice, and
b. a direction to the payor to withhold the dollar amount required by the support order for the payment of any delinquency.
The IWN is then ready to be served on the payor and a copy sent to the obligor. The relief of a stay order is no longer available and withholding begins immediately.
The key to this process lies in the child support order. Remember, Section 5/7O6.1(1)(b) requires that the support order include the dollar amount to be paid periodically to retire any delinquency that subsequently arises. Because this number is already approved by the court, the obligee need only perform a simple mathematical computation without further court involvement to issue the IWN and begin collecting the delinquency. This procedure can be used for original income withholding notices for which immediate service was withheld, amended IWNs and additional IWNs alike.
The issuance of an IWN occurs, therefore, without court involvement. In fact, the only time a court need see an IWN is if the obligor contests withholding. However, this contest will now not occur until after withholding has already commenced. As before, the obligor is limited to a 20 day period in which he may contest withholding, but that period is now measured from the date he is served with the income withholding notice itself, because the requirement of prior notice has been eliminated. 4
In cases where a delinquency exists, the grounds to contest are limited to only two issues: the existence or the amount of the delinquency and the identity of the obligor. 750 ILCS 5/706.1(C)(3)(a) and (b). These grounds remain essentially unchanged from the previous statute. In cases where the obligee has alleged a failure of the agreement to ensure the payment of support, the contest is limited to the truth of that allegation and the identity of the obligor. It is not a defense that the obligor has made all payments due by the date of the petition. 750 ILCS 5/706.1(D)(3)(a) and (b).
In addition to his right to contest withholding, the obligor may petition the court to conform the terms of the income withholding notice to that of the support order. This represents a new remedy for the obligor. It is available to the obligor at any time and is not contingent on his filing a 20 day petition to contest withholding. Under this provision the obligor may correct the IWN to conform to the support order for:
a. the amount of current support; b. the amount of the arrearage; c. the amount of the periodic payment to retire the arrearage; or d. the amount of the periodic payment due to retire the delinquency. 750 ILCS 5/706.1(F)(3).
How May The IWN Be Served?
The Act creates new options for serving income withholding notices for support orders entered on or after July 1, 1997 as well as support orders entered before that date. As with all aspects of the new Act, this process is expedited. The service of income withholding notices for support orders entered on or after July 1st is governed by 750 ILCS 5/706.1(B)(7). This statute governs IWNs issued immediately as well as those which were not. (See 750 ILCS 5/706.1(C)(2) and (D)(2)).
Under the prior law, service of the income withholding order on the payor was limited to certified mail or personal delivery. P. A. 90-18 greatly expands these limitations for the income withholding notice by recognizing the reality of new communications technology. Service of the income withholding notice is permitted by:
a. ordinary mail; b. facsimile transmission or other electronic means; or c. by any method provided by law for service of a summons, in addition to the options granted by the old statute. Clearly, P.A. 90-18 is intended to incorporate the availability of e-mail as a means of expediting the enforcement of child support. To complete the process, the obligee is required to serve a copy of the IWN on the obligor by ordinary mail and file a proof of service for both the payor and obligor with the Clerk of the Circuit Court.
Section 5/706.1(1) of P. A. 90-18 also addresses service of an income withholding notice for certain support orders entered before the effective date of the new Act.
Don’t despair. P. A. 90-18 does not render these orders obsolete. It also preserves the validity of any income withholding order issued after the effective date of the new Act.
If the most recent support order does not include the elements now required by 750 ILCS 706.1(B) (e.g., that an IWN be prepared and served immediately unless a court approved agreement to the contrary is reached, a set dollar amount to be paid periodically to reduce any subsequent delinquency and the obligor’s Social Security Number), and if a delinquency has occurred, an income withholding notice may be prepared and immediately served upon the payor. This may occur even if an income withholding order was entered prior to July 1, 1997.
What Are The Rights And Duties Of The Payor?
The rights and duties of the payor are slightly modified by the new Act. 750 ILCS 5/706.1 (E). Much remains of the previous statute. The payor must deduct the amount designated beginning with the next income payable or creditable to the obligor fourteen days after the IWN was issued. This sum cannot exceed the limits set by the federal Consumer Credit Protection Act.
The time within which the amount withheld must be tendered to the obligee has been changed, however. The sums withheld must be tendered within seven business days and not the 10 calendar days previously granted by the statute.
The new statute also grants the payor immunity from civil liability against any individual, agency or creditor of the obligor if he complies with an IWN that is "regular on its face." This replaces the "complete defense" offered under the old law.
The penalties which a payor may face for non-compliance with the IWN remain unchanged, and are found in Section 5/706.1 (H) of the new Act.
P. A. 90-18 represents another step along the road toward holding parents accountable for the support of their children.
P.A. 90-18 provides custodial parents and public agencies, who must make up the difference when the non-custodial parent fails in that obligation, with a means to expedite and ensure the full collection of child support. The uniformity of child support collection and enforcement practices occasioned by federal welfare reform, and furthered by P. A. 90-18, will profoundly aid in this struggle.
Honorable Thomas C. Dudgeon is a Presiding Judge in the Domestic Relations Division . He received his Undergraduate Degree in 1974 from Augustana College and his Law Degree in 1977 from Drake University.