• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Deduction from paycheck for child support

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

TinkerBelleLuvr

Senior Member
What is the name of your state (only U.S. law)? CA/ FL

I received in an Income Withholding Order/Notice for Support for one of our wait staff. The order is out of California; the employer is in Florida.

Our wait staff are paid below minimum wage, and tips make up the difference to minimum wage.

According to the paperwork, the maximum amount you withhold may not exceed 50% of the employee's net disposable earnings unless the court order specifies a higher percentage.

As I look at the amounts they are looking to deduct, it's even higher than his net weekly check. I can understand WHY there is an arrearage.

Basic Provisions/Requirements

Wage garnishment occurs when an employer withholds the earnings of an individual for the payment of a debt as the result of a court order or other equitable procedure. Title III prohibits an employer from discharging an employee because his or her earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it. Title III does not, however, protect an employee from discharge if the employee's earnings have been subject to garnishment for a second or subsequent debt.

Title III also protects employees by limiting the amount of earnings that may be garnished in any workweek or pay period to the lesser of 25 percent of disposable earnings or the amount by which disposable earnings are greater than 30 times the federal minimum hourly wage prescribed by Section 6(a)(1) of the Fair Labor Standards Act of 1938. This limit applies regardless of how many garnishment orders an employer receives. The federal minimum wage is $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.

In court orders for child support or alimony, Title III allows up to 50 percent of an employee's disposable earnings to be garnished if the employee is supporting a current spouse or child, and up to 60 percent if the employee is not doing so. An additional five percent may be garnished for support payments over 12 weeks in arrears. The restrictions noted in the preceding paragraph do not apply to such garnishments.

"Disposable earnings" is the amount of earnings left after legally required deductions (e.g., federal, state and local taxes, Social Security, unemployment insurance, and state employee retirement systems) have been made. Deductions not required by law (e.g., union dues, health and life insurance, and charitable contributions) are not subtracted from gross earnings when the amount of disposable earnings for garnishment purposes is calculated.

Title III specifies that garnishment restrictions do not apply to bankruptcy court orders and debts due for federal and state taxes. Nor do they affect voluntary wage assignments, i.e., situations where workers voluntarily agree that their employers may turn over a specified amount of their earnings to a creditor or creditors.
The current order for regular support and arrearages is $165.86 per week.

The question is: in the summer, they MIGHT get lucky and work 20 hours. They report their tips, and we take out the appropriate federal withholding, SS & Medicare against the amount of wages paid and tips. So, the net check gets pretty small. Do I take 50% of that pretty miniscule check now? I'm talking about a net check currently of about $120 per week.

In calculating the 30 times the Federal Minimum Wage, it works out to $196.50/week.

So, do I take half of that tiny net check?
 


pattytx

Senior Member
Not exactly. First of all, tips are not part of subject earnings for this purpose.

According to OCSE, tips received by an employee in cash or on a debit/credit card receipt are not part of the employee’s earnings under the CCPA. However, amounts paid to the employee by the employer from service charges added to a customer’s bill are earnings subject to child support withholding.
This is from the APA's Payroll Source, often referred to by the payroll community as the "Payroll Bible".

Secondly, the "federal minimum wage X 30%" applies to creditor-type garnishments only (under the CCPA). It does not apply to child support withholding orders.

So, basically, it's the cash earnings (before tips) less taxes, then 50% of that.

If you have any questions, you can always call the court and discuss the calculations with them.
 
Last edited:

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top