I’ve been divorced for over a year now and have been paying child support every month without fail. Now, the state of Mississippi is telling me that the federal law says I must pay my support through them because my ex-wife is receiving food stamps. I provided the state proof that I am current on my support payments only to receive a call from the Human Resources department at my office a month later. HR is now telling me that they received an order of garnishment from the state of Mississippi. I called the state and again they told me it’s a federal law that if I have a job, support must be taken from my paycheck. It’s an embarrassment at work and I feel it is all because my wife refuses to work. How do you recommend I handle this?
Commencing in the early 1990’s, Federal law required states had to implement child support withholding mechanisms to meet minimum Federal requirements. Payroll withholding is the default method for payment of support under these requirements. Such payments are not considered "garnishments" in the sense of involuntary taking of your pay, but are a "withholding" or "allotment" to facilitate your support of your children. I appreciate that these titles may be irrelevant to how the withholding affects your pay and employment.
The parties may agree to alternate payment methods, such as direct payment to your ex or personal payment to the state instead of withholding, subject to court approval of the plan. I advise clients that the payroll withholding is in the paying party’s interest, as it creates a presumptive record of payment. If you pay directly to your ex or to the state, you are responsible for maintaining the proof of payment, essentially forever, to avoid a later claim that you did not pay. State statutes of limitations on liability for back child support vary. I have had clients with claims made against them for unpaid support years, even decades, after the child has turned 18. The clients who did not have proof of payment were faced with substantial expense in attempting to prove the ex received the support payments or payment of the support twice.
If you wish to take the risk of direct payment and your ex will agree, you may be able to obtain court approval of a direct payment arrangement. However, some judges will not approve such agreements, simply to avoid the claims in future years as to alleged non-payment of support.
Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.
Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.