Once the court orders you to pay spousal or partner support, you must make the monthly spousal or partner support payments starting on the date the judge orders.
In every case ordering spousal or partner support, the court will order that a wage assignment (also called “wage garnishment”) be issued and served. The wage assignment tells your employer to take the support payments out of your wages.
Generally, both parties can agree that payments can be made in some other way and can ask that service of the wage assignment (sending the wage assignment to the employer) be “stayed” (put on hold). In this situation, the parties work out how spousal or partner support will be paid and handle it between them.
In some cases, the local child support agency (LCSA) is involved. The LCSA is only involved if there is also a child support order in your case and 1 of you asked them for help enforcing all support payments (spousal/partner and child support). The LCSA may also be involved if 1 of you gets public assistance for your children (like CalWORKS). If the LCSA is involved, the LCSA has to agree to have the wage assignment “stayed.” If the spouse/partner getting child and spousal or partner support is NOT getting public assistance, the LCSA will probably agree to both of you working the payments out between you.
Earnings Assignments (Wage Garnishments)
After the court decides the amount of spousal or partner and/or child support, the earnings assignment (also called “wage garnishment”) tells the employer how much to deduct from each paycheck and where to send the payment.
With an earnings assignment, if you are regularly employed, the employer will take support payments directly out of your paycheck. Most support is paid this way, and federal and state laws require it in almost all support cases. It is the employer’s responsibility to withhold the wages if there is an earnings assignment. If you also have a child support earnings assignment in place, child support is deducted first. Spousal or partner support assignments come after child support earnings assignments.
If the local child support agency (LCSA) is involved in your case, they will automatically issue the earnings assignment and begin collecting from your paycheck through your employer.
If the LCSA is not involved in your case, your former spouse or domestic partner, or the court itself, will prepare a earnings assignment and send it to your employer.
How Payments Made by Earnings Assignment Work
- Once the earnings assignment is served on the employer, the employer has 10 days to start taking the money out from your next paycheck.
- If the local child support agency (LCSA) is involved in your case, the earnings assignment is sent to your employer within 15 days of the date the LCSA finds the employer. The employer must deduct the support from your wages and send it to the LCSA within 10 days.
If the earnings assignment is for spousal or partner support only, the employer will forward the payments to the supported spouse or partner directly.
When an earnings assignment includes child support, employers must send the payments withheld to the California State Disbursement Unit (SDU). This means that the spousal or partner support (with the child support) payments will probably come to the person getting support from the SDU and not directly from the paying person’s employer (or from the LCSA if they are involved in your case). Getting payments through the SDU does NOT mean that you have a case with the local child support agency.
If You Do Not Want Your Wages Garnished
In general, you cannot fight an earnings assignment (also called a “wage garnishment”) in court because earnings assignments are allowed by law. However, in some circumstances you can object to the earnings assignment issued to your employer. For instance, if you and your former spouse or partner have an agreement that says there will be no earnings assignment, it may be possible to ask the court to review your case.
Asking that the earnings assignment be quashed (“set aside” or “canceled”)
When an earnings assignment order is sent to your employer, your employer will give you a blank Request for Hearing Regarding Earnings Assignment (Form FL-450). You have 10 days from when you receive this form to ask for a hearing on the earnings assignment. On the form, you will have a chance to explain why you do not want your wages garnished. When you go to court, the judge will make a decision.
The reasons you can ask for the earnings assignment to be canceled are:
- You and your former spouse or partner have an agreement that you will pay your spousal or partner support directly (and if the LCSA is involved, they agree too).
- ALL of the following apply:
- You have made payments on time for the last 12 months without an earnings assignment;
- You do not owe any back spousal or partner support;
- The earnings assignments would cause an undue hardship; AND
- When child support is included, it would be in your children’s best interest to cancel the earnings assignment (if you have children and the earnings assignment includes child support).
Asking for service of the earnings assignment to be “stayed” (“put on hold”)
In some cases, you may be able to get a “stay” of (a “hold” on) the service of the earnings assignment, which means that the earnings assignment would not be sent to your employer and you would be able to pay on your own. Read the Stay of Service of Earnings Assignment Order (Form FL-455) for more information on the reasons you can request a stay.
In general, the reasons you can ask for a “stay” of the service of the earnings assignment are:
- If you have a history of making payments on time;
- If the earnings assignments would cause an undue hardship; or
- If the reason you are behind is that your checks to the other person have been undeliverable for 6 months.
To ask the judge to stay the earnings assignment:
1. Fill out the Stay of Service of Earnings Assignment Order (Form FL-455). On this form, mark the box that explains you have an agreement with your former spouse or partner (AND the LCSA if they are involved in your case) for another payment arrangement.
2. You will get a court hearing where you can ask the judge to stop service of the earnings assignment.
3. If the judge agrees with your request, he or she will sign the stay. This stops the earnings assignment from taking effect because it will not be served on your employer.
4. If you get a stay, it is very important you both keep good records of all the payments, in case there are any issues in the future.
See the Stay of Service of Earnings Assignment Order (Form FL-455) for more information on “staying” an earnings assignment.
If you do not follow your arrangement, your former spouse or domestic partner (or the LCSA if they are involved) can ask the court to end the stay on the earnings assignment and ask the employer to start garnishing (withholding) your wages.
If You Disagree With the Amount of the Earnings Assignment
When an earnings assignment order is sent to your employer, your employer will give you a blank Request for Hearing Regarding Earnings Assignment (Form FL-450). You have 10 days from when you receive this form to ask for a hearing on the earnings assignment. On the form, you will have a chance to explain why you think the amount of the earnings assignment is wrong. When you go to court, the judge will make a decision.
Remember that this is not the form you use to ask for a change in your spousal or partner support. It is used ONLY because you believe that the amount that will be taken from your paycheck is the wrong amount.
If You Cannot Afford to Pay the Amount of the Earnings Assignment
If your employer is taking too much out of your paycheck and you cannot afford it, there may be something you can do. It depends on what amounts are being taken from your check.
If your employer is just taking out the monthly spousal or partner support that the court ordered (without anything added to it), then there is probably nothing you can do except go to court to ask for your spousal or partner support to be changed. BUT if you just had a court hearing and that is the order the judge made and nothing has changed since the hearing, you probably will not succeed since the order shows the amount the judge ruled you have to pay.
If your employer is taking out an amount much higher than what your monthly spousal or partner support order says, you probably have a past due spousal or partner support balance. In this case, there may be something you can do. The court (and the LCSA if they are involved in your case) has a little more flexibility in how much money you have to pay every month to start paying off your past due support.
First, if they are involved, contact the local child support agency (LCSA) to see if you can make arrangements to lower your payments. If that does not work, you can file court forms to ask a judge to set a payment that you can afford. Remember, this payment is for the back spousal or partner support and probably child support.
If the LCSA is not involved in your case, you can file a request in court to set a payment amount that you can afford. Talk to your family law facilitator to learn what court forms would be best in your case.
from California Courts