What is wage garnishment, and how can I get the court to order it?
In any family court case, including a divorce case, parental relationship case, or a related case that involves children, the court may make orders that child support be paid. All court orders made in California include an automatic wage assignment order that the court is mandated to include pursuant to Family Code section 5230, which says, in part:
(a) When the court orders a party to pay an amount for support or orders a modification of the amount of support to be paid, the court shall include in its order an earnings assignment order for support that orders the employer of the obligor to pay to the obligee that portion of the obligor’s earnings due or to become due in the future as will be sufficient to pay an amount to cover both of the following:
(1) The amount ordered by the court for support.
(2) An amount which shall be ordered by the court to be paid toward the liquidation of any arrearage.
Thus, getting a wage assignment (Form FL-195) in place with a child support order is simple, as issuing such an order is required by the court.
Unpaid Child Support: When Things Get Complicated
Things get a bit more complicated when a spousal support order is made during the time a child support order is in effect.
In that case, you can obtain an earnings assignment order that covers both child support and spousal support (also on Form FL-195). If the Local Child Support Agency (LCSA) of the State Department of Child Support Services (DCSS) is enforcing the child support order, they will also collect the spousal support as part of their enforcement efforts.
To obtain an earnings assignment order in a spousal support case, the order for spousal support should include that a wage assignment be issued and this can be listed on Form FL-343, which will be attached to the Findings and Order on Form FL-340. The actual wage assignment form is called Earnings Assignment Order for Spousal or Partner Support, Form FL-435.
The issuance of such earnings assignment is also mandatory and is required by Family Code section 5230.
Wage Garnishment for Spousal Support
If the original court order for spousal support does not include the wage assignment language and you would like a wage assignment, you can submit a form, that must also be served on the paying party, called Ex Parte Application to Issue, Modify or Terminate an Earnings Assignment Order (Form FL-430).
This form could also be used to ask that an order to stay the earnings assignment until, say, the payee is late at least five days with payment, be modified and allow the issuance of the assignment order. The California Courts website explains the process of “staying” a wage assignment as:
When the LCSA is NOT involved, both parents can agree that payments can be made in some other way and can ask that service of the earnings assignment (sending the earnings assignment to the employer) be “stayed” (put on hold). In this situation, the former spouses/partners work out how spousal or partner support will be paid and handle it between them.
When the paying party does not follow the court order and it becomes difficult to collect the support payments from them, obtaining this sort of order can be done without a court hearing or an appearance, though the other party could object (Form FL-450) if they oppose this application. The term ex parte simply means a court action brought by one party without the “…participation or presence of the other party.”
The one thing to keep in mind here is that a wage assignment is only truly effective if the paying party (the obligor) actually has an employer so they have a paycheck from which earnings can be garnished.
If the paying party is self-employed, on disability, receives retirement benefits, or is otherwise not regularly employed, then the discussion of how to collect ongoing support payments from them is more difficult and is something you should discuss in depth with your experienced San Diego family law attorney.
A San Diego Family Law Attorney Can Help With Unpaid Child Support
Whether you’re going through a divorce or need assistance with other family law matters, an experienced attorney can help.
If you’re interested in obtaining an order for wage garnishment related to child support or spousal support, contact JWB Family Law to schedule a free consultation.