H*4010 Session 110 (1993-1994)
H*4010(Rat #0577, Act #0510) General Bill, By J.S. Shissias
A Bill 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.
04/14/93 House Introduced and read first time HJ-28
04/14/93 House Referred to Committee on Judiciary HJ-28
05/18/94 House Committee report: Favorable Judiciary HJ-14
05/26/94 House Read second time HJ-52
05/26/94 House Unanimous consent for third reading on next
legislative day HJ-53
05/27/94 House Read third time and sent to Senate HJ-6
05/31/94 Senate Introduced and read first time SJ-8
05/31/94 Senate Referred to Committee on General SJ-8
06/01/94 Senate Recalled from Committee on General SJ-57
06/01/94 Senate Read second time SJ-57
06/01/94 Senate Ordered to third reading with notice of
amendments SJ-57
06/02/94 Senate Read third time and enrolled SJ-82
06/02/94 Ratified R 577
08/31/94 Signed By Governor
08/31/94 Effective date 08/31/94
09/13/94 Copies available
(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."
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Approved the 31st day of August, 1994. |