Use of the Federal Order/Notice to Withhold Income for Child Support
DATE: February 2, 2001
TO: State IV-D Directors
FROM: Frank Fuentes
Office of Child Support Enforcement
RE: Clarification on Use of the Federal Order/Notice to Withhold Income for Child Support
Our goal in issuing this PIQ is to clarify the appropriate use of the Federal Income Withholding Form. We have received a number of inquiries, from State IV-D agencies and employers, questioning whether the form has been issued with the proper underlying authority to do so. Concerns have also been raised about the authority needed to redirect payments to an entity other than that indicated in the underlying support or income withholding order. PIQ-99-02, dated February 8, 1999, responds to earlier inquiries for clarification on the use of the standardized Federal income withholding form.
Question 1: May an individual or entity send the "Order/Notice to Withhold Income for Child Support" to an employer if there is no underlying support order or if there is no underlying income withholding order, and the individual or entity has no authority under State law to issue a support order or a withholding order?
Answer: No. Section 466(b)(1) of the Social Security Act requires withholding "in the case of each noncustodial parent against whom a support order is or has been issued or modified in the State." Therefore, the first condition for withholding is an underlying support order issued in accordance with Federal requirements and State law.
Section 466(b)(6)(A)(i) of the Act directs that an employer of a noncustodial parent, "upon being given notice as described in clause (ii), must be required to withhold from such noncustodial parent's income the amount specified by such notice133" Clause (ii) of that section requires that the "notice given to the employer shall be in a standard format prescribed by the Secretary [of HHS], and contain only such information as may be necessary for the employer to comply with the withholding order." PIQ-99-02 indicates in the answer to Question 2 that the form "must be used to notify employers of an order to withhold." [emphasis added] Income withholding orders may be included as part of a support order or may be issued as a separate order by a tribunal or an appropriate authority under State law.
Only a tribunal or entity authorized to issue orders under State law may issue the Federal "Order/Notice to Withhold Income for Child Support" as a withholding order. The form may also be sent by an individual, agency or entity as a notice to an employer to withhold income, but only if it is based on an underlying withholding order issued by an appropriate authority under State law. If sent as a notice to an employer to initiate income withholding, information about the underlying withholding order and who issued it must be included on the Notice.
Question 2: If an individual or entity in one State sends directly to an employer in another State an Order/Notice to Withhold Child Support that is based on an another State's order, may the individual or entity change the payee or redirect payments to a designation other than the designation in the other State's order or a designation subsequently authorized by the tribunal or authority in the other State that issued the underlying order?
Answer: No. Section 501 of the Uniform Interstate Family Support Act (UIFSA) authorizes that an income withholding order of another State may be sent directly to the obligor's employer in another State without filing a pleading or registering the order. There is no restriction under UIFSA on who may send the income withholding order to the employer. Section 502(c)(2) of UIFSA mandates the employer to "withhold and distribute funds as directed in the withholding order by complying with the terms of the order which specify (2) the person or agency designated to receive payments and the address to which payments are to be forwarded;" Therefore, if a support order or income withholding order issued by one State designates the person or agency to receive payments and the address to which payments are to be forwarded, an individual or entity in another State may not change the designation when sending an Order/Notice to Withhold Child Support.
Question 3: May a State IV-D agency use its administrative authority required under section 466(c)(1)(E) of the Act to change the payee or redirect payments from the designation of the person or agency to receive payments and the address to which payments are to be forwarded that is included in a support or income withholding order issued by another State?
Answer: No. Section 466(c)(1)(E) of the Act requires States to have laws under which, in cases in which support is subject to an assignment to the State or to a requirement to pay through the State disbursement unit, upon notice to the obligor and obligee, the IV-D agency may direct the obligor or other payor to change the payee to the appropriate government entity. States therefore must have the authority to administratively change the payee or redirect payments under an order issued in their State without obtaining an order from any other judicial or administrative tribunal in their own State. This requirement does not authorize a State IV-D agency to administratively change the payee or the agency designated to receive payments from any designation in, or subsequently authorized in, an order issued by another State.