Income withholding notices issued to employers are the most common way child support orders are enforced. When everything works as it should, employers dutifully obey such notices, withhold child support from the employee’s pay, and send payment off to the Illinois State Disbursement Unit (the “SDU”). The SDU then forwards the money on to the custodial parent, and keeps records in case there is ever a dispute over how much was paid and when. In places like DuPage County, Illinois, where judges place great emphasis on enforcement of child support orders, the Clerk of the Circuit Court automatically issues an income withholding notice to the non-custodial parent’s employer any time a child support order is entered in a case (provided the proper form is used).
But what happens if an employer fails to obey the income withholding notice? What happens if the employer never withholds the money for child support?
The law on point, called the Income Withholding for Support Act (the “Act”), places a duty on an employer who has been served with a notice of withholding to pay to the SDU. 750 ILCS 28/1 et seq. Further, the Act provides a severe penalty of $100 each day that a payor knowingly fails to pay ordered amounts to the State Disbursement Unit. 750 ILCS 28/35(a). As such, the Act demands strict compliance. The $100 per day penalties accumulate and run concurrently, meaning that each pay period in which the employer fails to comply is subject to a separate $100 per day penalty. For example, if an employer disobeys a withholding notice over the course of ten pay periods, the fines would accumulate at a rate of $1,000 per day. And, in case you were wondering, the penalties are to be paid to the custodial parent.
Over the course of several years, Illinois appellate courts routinely affirmed severe penalties against employers for failing to pay child support pursuant to an income withholding notice. As but one example, in Marriage of Gulla and Kanaval, the court affirmed a penalty of $369,000 against an employer. 382 ill.App.3d 498, 888 N.E.2d 585 (2d Dist. 2008). Such steep fines sent a strong, unambiguous message to employers that income withholding notices ought not be disregarded. Then came the case of Schultz v. Performance Lighting, 2013 IL App (2d), 120405 (Ill. App., 2013), and everything changed.
In the Schultz case, the court analyzed what information must be contained in an income withholding order for it to be valid. The Act contains specific requirements for the income withholding notice: “The income withholding notice shall,” among other things, “in bold face type, the size of which equals the largest type on the notice, state the duties of the payor and the fines and penalties for failure to withhold and pay over income and for discharging, disciplining, refusing to hire, or otherwise penalizing the obligor because of the duty to withhold and pay over income under this Section; and … include the Social Security number of the obligor.” 750 ILCS 28/20(c)(9) (emphasis added).
First, the definitions. The non-custodial parent who owes child support is known as the obligor. The non-custodial parent’s employer is therefore the payor. The custodial parent is the obligee.
Translation: in addition to all of the font size and fine print provisions, the income withholding notice must contain the non-custodial parent’s social security number.
However, another Illinois rule confounds the situation. Illinois Supreme Court Rule 138 requires that certain personal identity information, such as Social Security and individual-taxpayer identification numbers, driver’s license numbers, financial account numbers, and debit and credit card numbers, not be included in documents or exhibits filed with the court, which become public record. Certain exceptions exist for documents with redactions, including, for example, only the last four digits of the aforementioned numbers. Because the Clerk of the Circuit Court is ever mindful of Supreme Court Rule 138, all of the automatically-issued income withholding notices sent by the Clerk of the Circuit Court to employers everywhere contain only the last four digits of the non-custodial parent’s social security number. Most attorneys routinely do the same.
At this point, I am confident that you see where this is going. Income withholding notices must contain the non-custodial parent’s social security number. Income withholding notices are public records filed with the court. Supreme Court Rule 138 prohibits filing any documents with the court that contain anyone’s social security number. Thus, the notice of withholding sent to the non-custodial parent’s employer by the Clerk of the Circuit Court will not list his/her full Social Security number.
Such an omission came to a head (in Lake County, Illinois) in the case of Schultz v. Performance Lighting, Inc. In that case, ex-wife Jennifer served her ex-husband’s employer a notice of withholding, requiring her ex-husband to pay $600 in support every two weeks. Jennifer filed a lawsuit against her ex-husband’s employer for breaching its duty by knowingly failing to pay the support ordered to be withheld from her ex-husband’s paychecks. Jennifer also alleged that the employer’s breach triggered the $100 per day penalty. Unfortunately, Jennifer’s notice of withholding omitted her ex-husband’ Social Security number. The employer argued that because the notice did not contain everything that was required under the Act, its duty to withhold income from her ex-husband’s paycheck was never triggered. 2013 IL App (2d), 120405 (Ill. App., 2013). The trial court agreed with the employer.
On Jennifer’s appeal, the Appellate Court upheld the trial court’s ruling that Jennifer’s notice of withholding to the defendant (ex-husband’s employer) did not strictly comply with the Income Withholding for Support Act (“Act”), and as such, it invalided the notice. Because the notice was invalid, the employer was under no obligation to withhold for child support. Jennifer lost and did not collect.
What this means: Employers can get off the hook on a technicality. Unless the income withholding notice contains the non-custodial parent’s full social security number, an employer cannot be penalized for not withholding child support from the non-custodial parent’s pay.
What to do about it: Hire a good lawyer to handle your child support case. Lawyers should prepare their own Income Withholding Notices – including the non-custodial parent’s full social security number – and serve them on employers, even in counties where the Clerk of the Circuit Court typically does so automatically. A redacted copy may be filed with the court in compliance with Supreme Court Rule 138.