One of the first questions I am asked about child or spousal support it, “How will I be paid my support?” My answer is always the same “depends.” In fact, “It depends” is my answer to most legal questions. In the case of support payments, it really depends on what you and the other party want to do. You can either choose direct payment or a wage assignment.
Direct payment is just as the name implies. The support payor pays the support payee directly. Usually this is paid via a check. Recently, I have noticed an increase in support being paid via “bill pay” services provided by a party’s bank or through Electronic Funds Transfer (EFT). What is nice about “bill pay” services or EFT is that you can usually set these up to be done automatically so you do not have to write a check each month or risk forgetting to do so.
A quick reminder for those who pay by check; never ask your child to deliver the check to the other parent. Also, do not leave the check in a child’s back pack. Children should not be saddled with the responsibility of delivering support payments. Even more importantly, most kids will end up losing the check if it’s in their backpack. If you decide to provide the check to the other side during an exchange of the children, make sure it is in an envelope.
It may seem counterintuitive, but direct payment of support is the exception, not the rule. Family Code §5230 states in relevant part:
“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…”
That means, unless the parties reach an agreement for direct payment, an Earnings assignment will be issued (discussed below). My advice is only agree to direct payment of support if the other party historically has paid support on time and in full. Also, if you agree to direct payment of support and later find the support payor is paying you late or less than the full amount, you can always submit an earnings assignment later.
An earnings assignment is an order that assigns a portion of the earnings of the person owing support to the person owed that support. It is also referred to as an Income Withholding Order, Wage Assignment, or Wage Garnishment. They all refer to the same thing; an order from a court that automatically takes a portion of the earnings of a support payor and gives it to the support payee. An Earnings assignment can include the payment of child support, spousal support, monthly payments for past due support, or other authorized court ordered payments due from one party to the other.
As discussed above, the Earnings assignment is mandatory in all support cases in California unless it is waived by the parties. The Earnings assignment is also automatic, but your attorney will still need to prepare the order and submit it for entry by the court. Once the wage assignment is returned by the court, it is sent to the payor’s employer and the support is deducted from their check automatically.
The payments are processed by the California State Disbursement Unit (SDU). How the SDU receives the funds, how they are paid, and what to do if there is a problem is far too complex for this blog entry. For more information, please visit http://www.childsup.ca.gov/
The advantages of an Earnings assignment is that the payment is done automatically and in full. There is no need to worry the other will forget to pay you or decide not to pay you.
The downside is they take a couple of months to put in place which means the other party will be required to pay you directly until the wage assignment is in place. This can cause a delay in you receiving support. Also, they do not protect you if the other party quits their job or is fired. Another downside is the time it takes to change or modify a support order. For example, if you are receiving $1,000 per month in support, you lose your job and as a result support increases to $3,000 per month, it may take 2-4 months before the new wage assignment takes effect. Finally, the process is run by a government agency, so there is always a chance that mistakes will be made.
It is important to discuss wage assignments with your attorney to decide if this is a route you want to take. It’s also worth discussing how the other party is likely to react. I have had many clients who were adamant that an earnings assignment not be served on their employer. One client even agreed to pay a higher support in exchange for an agreement not to serve an earnings assignment. (Note: That is a bad agreement and I advised that party not to agree…they did not listen. Sure enough a few months later the other party filed an earnings assignment anyhow.)
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.