Current Status Introducing Body:
HouseBill Number: 4010Ratification Number: 577Act Number: 510Primary Sponsor: ShissiasType of Legislation: GBSubject: Child support, income tax withholdingDate Bill Passed both Bodies: 19940602Computer Document Number: 436/11210AC.93Governor's Action: SDate of Governor's Action: 19940831Introduced Date: 19930414Last History Body: ------Last History Date: 19940831Last History Type: Act No. 510Scope of Legislation: StatewideAll Sponsors: ShissiasType of Legislation: General Bill
Bill Body Date Action Description CMN Leg Involved ---- ------ ------------ ------------------------------ --- ------------ 4010 ------ 19940831 Act No. 510 4010 ------ 19940831 Signed by Governor 4010 ------ 19940602 Ratified R 577 4010 Senate 19940602 Read third time, enrolled for ratification 4010 Senate 19940601 Read second time, notice of general amendments 4010 Senate 19940601 Recalled from Committee 08 4010 Senate 19940531 Introduced, read first time, 08 referred to Committee 4010 House 19940527 Read third time, sent to Senate 4010 House 19940526 Read second time, unanimous consent for third reading on next Legislative day 4010 House 19940518 Committee Report: Favorable 25 4010 House 19930414 Introduced, read first time, 25 referred to CommitteeView additional legislative information at the LPITS web site.
(A510, R577, H4010)
AN ACT TO AMEND SECTION 20-7-1315, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO INCOME WITHHOLDING FOR THE ENFORCEMENT OF CHILD SUPPORT, SO AS TO REVISE THE DEFINITION OF "ORDER FOR SUPPORT"; TO REVISE THE THRESHOLD FOR INITIATING INCOME WITHHOLDING; AND TO REVISE OTHER PROCEDURAL AND NOTICE REQUIREMENTS FOR INCOME WITHHOLDING, INCLUDING THE REQUIREMENT THAT EMPLOYERS AND PARENTS PAYING CHILD SUPPORT MUST NOTIFY THE CLERK OF COURT IF HEALTH INSURANCE IS AVAILABLE FOR CHILDREN ON WHOSE BEHALF THE CHILD SUPPORT IS PAID.
Be it enacted by the General Assembly of the State of South Carolina:
Income withholding for child support
SECTION 1. Section 20-7-1315 of the 1976 Code, as last amended by Act 195 of 1989, is further amended to read:
"Section 20-7-1315. (A) As used in this section:
(1) `Order for support' means any order of a court which provides for periodic payments of funds for the support of a child or maintenance of a spouse or former spouse and support of a child, whether temporary or final, whether incidental to a proceeding for divorce, separation, separate maintenance, paternity, guardianship, or otherwise and includes any order providing for a modification of support payment of an arrearage or reimbursement of support.
(2) `Delinquency' means when a support payment owed by an obligor pursuant to an order of support is overdue in an amount equal to at least one month's support obligation.
(3) `Arrearage' means the total amount of unpaid support obligations.
(4) `Court' as used in this section means Family Court.
(5) `Income' means any form of payment to an individual regardless of source including, but not limited to, wages, salary, commission, compensation as an independent contractor, workers' compensation, disability, annuity and retirement benefits, and any other payments made by a person, or an agency or department of the federal, state, or local government provided the income excludes
(a) amounts required by law to be withheld, other than creditor claims, including, but not limited to, federal, state, and local taxes, social security and other retirement deductions, and disability contributions;
(b) amounts exempted by federal law;
(c) public assistance payments. Any other state or local laws which limit or exempt income or the amount or percentage of income that can be withheld do not apply.
(6) `Obligor' means an individual who is required to make payments pursuant to order for support.
(7) `Obligee' means an individual or the individual's assignee who is entitled to receive payments pursuant to an order of support.
(8) `Payor' means any payor of income to an obligor. For purposes of this section, the South Carolina Employment Security Commission is not considered to be a payor.
(B) (1) All orders for support entered or modified on or after October 1, 1985, must contain the obligor's social security number and a provision for income withholding procedures to take effect in the event a delinquency occurs. These orders must be construed to contain this withholding provision even if the provision has been omitted from the written order; provided, the court may order withholding to begin immediately for good cause shown. The court is required to make specified written findings to support immediate withholding.
(2) Income withholding must be initiated in all Title IV-D cases the earliest of:
(a) the date on which a payment which the obligor has failed to make under a support order constitutes a delinquency as defined in subsection (A)(2);
(b) the date the obligor requests initiation of withholding;
(c) the date the obligee requests initiation of withholding, if the State approves the request in accordance with the procedures and standards as it may establish. If income withholding is initiated pursuant to the accumulation of a delinquency, the obligor must be afforded the notice and hearing required by this section. If the obligee requests income withholding pursuant to this subsection, notice of the request must be provided to the obligor by the clerk of court, and if the obligor objects to the income withholding within ten days after the postmarked date of the notice, a hearing must be held, and the family court shall subject the obligor's wages to withholding unless the court finds that there is good cause not to require immediate income withholding. Where there is no objection by the obligor after proper notice, the clerk of court shall implement immediate income withholding.
(C) (1) In the case of each obligor against whom an order for support has been issued or modified before October 1, 1985, the order is presumed to contain a provision for income withholding procedures to take effect in the event a delinquency occurs without further amendment to the order or further action by the court.
(2) An obligor may petition the court at any time prior to the occurrence of a delinquency seeking an order for income withholding procedures to begin immediately.
(3) Where the obligor makes payments directly to the obligee pursuant to an order for support and where income withholding procedures take effect, the provisions to pay directly are superseded by the withholding process and the obligor and the payor on behalf of the obligor during the period of withholding must pay this support through the court.
(4) For all Title IV-D cases in which support orders are issued or modified after October 31, 1990, and for all non-Title IV-D cases in which support orders are issued or modified after January 3, 1994, the income of an obligor is subject to immediate withholding as of the effective date of the order without the requirement that an arrearage accumulate. However, wages are not subject to withholding in a case in which:
(a) one of the parties demonstrates and the court finds that there is good cause not to require immediate income withholding; or
(b) a written agreement is reached between both parties which provides for an alternative arrangement.
(D) (1) If a delinquency occurs, the clerk of court shall prepare, file, and serve on the obligor a verified notice of delinquency within fifteen calendar days of the delinquency if the obligor's address is known or if the address is not known, within fifteen calendar days of locating the obligor. If the obligor makes payments pursuant to an order for support directly to the obligee and the obligee seeks income withholding, the notice of delinquency must be verified by the obligee and then served on the obligor by the clerk of court as with any other notice of delinquency.
(2) The verified notice of delinquency must be served on the obligor by regular mail addressed to the obligor's last known address or place of employment. Upon mailing the notice, the clerk of court shall file a certificate of mailing stating the name and address to which the notice was mailed and the date on which it was mailed. If service cannot be effected as set forth in this subsection, the obligor may be served as prescribed for service in civil actions.
(3) The notice of delinquency shall inform the obligor that a delinquency has occurred and shall recite the monthly support obligations of the obligor pursuant to the order of support, the total amount of the arrearage as of the date of the notice, and the amount of income to be withheld. The notice must clearly state that a notice to withhold will be sent to the obligor's current or subsequent payor, income withholding will begin, and that a judgment lien may be imposed against the obligor's personal or real property in the amount of the arrearage pursuant to Section 20-7-1316, unless the obligor files a petition to stay service in accordance with subsection (E).
(E) (1) The obligor may prevent a notice to withhold from being served on the obligor's payor and prevent the recording of the arrearage pursuant to Section 20-7-1316 by filing a petition to stay service with the clerk of court with jurisdiction of the matter within ten days of the date that the notice of delinquency is postmarked; however, the grounds for granting the petition to stay service are limited to a dispute concerning the identity of the obligor or the existence or amount of the arrearage.
(2) Filing of a petition to stay service within the ten days required under this subsection prohibits the clerk of court from serving the notice to withhold on any payor of the obligor and prohibits the recordation of the arrearage.
(3) If a petition to stay service is filed, a hearing on the petition must be held within thirty days of its filing. The obligor, obligee, and Department of Social Services, where appropriate, must be notified by the clerk of court of the date, time, and place of the hearing and the court must decide the matter, notify the obligor, and enter an order granting or denying relief or amending the notice of delinquency within forty-five days of the date the notice of delinquency was mailed to the obligor. If the court finds that a delinquency existed when the notice of delinquency was mailed, the court shall order immediate service of the notice to withhold and the arrearage may be recorded immediately pursuant to Section 20-7-1316. The court shall inform the obligor of the time frame within which withholding is to begin and shall provide the obligor in writing with the information contained in the notice to withhold to be served on the payor with respect to the withholding.
(4) Upon filing an affidavit with the court stating that a petition to stay service was not timely filed because the notice of delinquency was not received and that grounds exist for a petition to stay service as stated in subsection (E)(1) , the obligor is permitted to file a petition to withdraw the notice to withhold, terminate the withholding procedures, and remove the judgment created by the recording of the arrearage. Income withholding, however, may not be interrupted unless the court enters an order granting the relief sought by the obligor based on the limited grounds for a petition to stay service.
(F) (1) Fifteen days following the mailing of the notice of the delinquency to the obligor and if no petition to stay service has been filed, the clerk of court shall serve a notice to withhold on the payor or its agent by regular mail and may record the arrearage pursuant to Section 20-7-1316.
(2) The notice to withhold shall:
(a) direct any payor to withhold at the obligor's regularly scheduled pay periods an amount which over the period of one month would constitute one month's support obligation plus applicable fees pursuant to this section and costs as provided by Section 20-7-1440;
(b) direct any payor to withhold an additional amount toward any arrearage until the arrearage is paid in full; however, amounts to be withheld under this item and item (2)(a) may not exceed the limits set forth by the Federal Consumer Credit Protection Act (15 U.S.C. Section 1673(b));
(c) direct any payor to notify the clerk if health insurance is available to the obligor for the benefit of children for whom child support is being withheld;
(d) state the rights, responsibilities, and liabilities of the payor under this section.
(3) The payor shall then deduct the designated amount pursuant to the notice to withhold beginning no later than the next regularly scheduled pay period following the pay period during which the payor was served. Payors need not change their regular payroll pattern and may combine all withheld amounts into one check for a particular clerk of court with an itemized statement showing accounts attributable to each obligor for each obligee. For each instance of withholding of income, the payor is entitled to receive a fee of up to three dollars to be deducted from the income of the obligor in addition to the amounts withheld pursuant to the notice to withhold unless the fee is waived by the payor.
(4) If there is more than one notice to withhold on a single obligor, the payor must comply with the notices by withholding the amounts designated in the notices to the extent possible pursuant to the Federal Consumer Credit Protection Act (15 U.S.C. Section 1673(b)). If the payor cannot fully comply with the notices because the amounts to be withheld would exceed the limits under the Federal Consumer Credit Protection Act, the payor shall notify the court in writing as to its reasons for failing to fully comply. Priority must be given to current support obligations. In no case may the allocation result in a withholding for one of the support obligations not being implemented.
(5) The payor shall promptly pay the amount withheld to the clerk of court within ten working days of the date income is withheld, in accordance with the notice to withhold and in accordance with any subsequent notification received from the clerk of court concerning withholding. The payor shall provide the date on which the income is withheld.
(6) Upon the records of the clerk of court reflecting the satisfaction of an arrearage, the clerk of court shall serve upon the payor by regular mail a notice of reduction of withholding. This notice shall inform the payor that the arrearage has been satisfied and to discontinue withholding the additional amount as prescribed in item 2(b) of this subsection.
(7) Within twenty days after the obligor is no longer employed by the payor, the payor shall return a copy of the notice to withhold to the clerk of court and shall notify the clerk of court in writing of the date the obligor's employment terminated, the date of the obligor's final paycheck, the obligor's home address, and obligor's new employer and address, if known.
(8) Withholding of income from an obligor under this section has priority over any other legal process under state law against the same wages. Payment pursuant to a notice to withhold is a complete defense by the payor against any claims of the obligor or the obligor's creditors as to the sum paid.
(9) No payor may discharge, refuse to hire, or otherwise penalize any obligor because of the duty to withhold income.
(10) The responsibility of a payor who employs an obligor to withhold support from the pay of the obligor ends when the obligor leaves the employ of the payor. If this termination of employment occurs during the middle of a pay period, the final amount required to be withheld must be proportionately reduced in the same percentage that the time worked has to the time of the full pay period.
(11) If the Division of Child Support of the Department of Social Services is notified by the South Carolina Employment Security Commission in accordance with Section 41-35-140 that an obligor is receiving unemployment insurance benefits, the division must notify the court for the intercept of unemployment insurance benefits if a delinquency occurs and the obligor's case is a Title IV-D case. The intercept of unemployment insurance benefits must be in accordance with Section 41-35-140.
(G) (1) The clerk of court may suspend income withholding because of inability to deliver the income withheld to the obligee due to the obligee's failure to provide a mailing address or other means of delivery. Upon relocating the obligee and upon meeting the requirements of notice and service pursuant to this section, income withholding must be reinstated.
(2) An obligor may petition the court at any time to terminate income withholding pursuant to a notice to withhold:
(a) if there is no longer a current order for support and all arrearages are paid; or
(b) if the obligor requests termination and withholding has not been terminated previously and subsequently reinstated and the obligor meets the conditions for an alternative arrangement.
However, if termination is granted and subsequently a delinquency occurs, the clerk of court shall reinstate withholding procedures by complying with all requirements for notice and service pursuant to this section.
(3) The clerk of court shall serve on the payor by regular mail a copy of any order entered pursuant to this subsection or subsection (E)(4) that affects the duties of the payor. If service cannot be effected as set forth in this subsection, the payor may be served as prescribed for service in civil actions.
(4) The notice to withhold continues to be binding upon the payor until service of any order of the court entered under this subsection or subsection (E)(4) or until notice is served on the payor by the clerk of court that the underlying order is, for other reasons such as expiration of the support obligation, no longer in effect.
(H) (1) An obligee who is receiving income withholding payments under this section shall notify the clerk of court of any change of address within seven days of the change.
(2) An obligee who is a recipient of public aid must send a copy of any notice of delinquency filed pursuant to subsection (D) to the Division of Child Support of the South Carolina Department of Social Services.
(3) An obligor whose income is being withheld or who has been served with a notice of delinquency pursuant to this section shall notify the clerk of court of any new payor and of the availability of health insurance for any children for whom support is ordered within seven days after employment commences.
(4) Upon receiving any other support payment including, but not limited to, a tax offset under federal or state law or any payment toward an arrearage, the Department of Social Services, within the time permitted by Title IV-D of the Social Security Act, shall provide notice of the payment to the clerk of court.
(5) Any clerk of court who collects, receives, or disburses payment pursuant to an order for support or a notice to withhold shall maintain complete, accurate, and clear records of all payments and their disbursements. Certified copies of payment records maintained by the clerk of court must without further proof be admitted into evidence in any legal proceedings in which child support is an issue.
(6) The Department of Social Services and the Office of Court Administration shall design suggested legal forms for proceeding under this section and Section 20-7-1316 and shall make available to the courts for distribution to parties in support actions these forms and informational materials which describe the procedures and remedies set forth in this section and Section 20-7-1316.
(I) (1) If a payor wilfully fails to withhold or pay over income pursuant to a notice to withhold, the court upon notice and hearing may enter judgment and direct the issuance of an execution against the payor for the total amount that the payor wilfully failed to withhold. A payor who wilfully refuses to hire or who discharges or otherwise penalizes an obligor as prohibited by subsection (F)(9) or who fails to notify the clerk of the availability of health insurance is subject to a civil fine not to exceed five hundred dollars which may be imposed by the court in its discretion.
(2) If an obligor, obligee, or the Department of Social Services wilfully initiates a false proceeding under this section or wilfully fails to comply with the requirements of this section, punishment for contempt may be imposed.
(J) The rights, remedies, duties, and penalties created by this section are in addition to any other rights, remedies, duties, and penalties otherwise provided by law.
(K) The Office of Court Administration after consultation with the Department of Social Services is authorized to promulgate those regulations necessary to implement this section."
SECTION 2. This act takes effect upon approval by the Governor.
Approved the 31st day of August, 1994.