Louisiana Revised Statutes 46:236.3 – Enforcement of support by income assignment
Terms Used In Louisiana Revised Statutes 46:236.3
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Clerk of court: An officer appointed by the court to work with the chief judge in overseeing the court's administration, especially to assist in managing the flow of cases through the court and to maintain court records.
- Department: means the Department of Children and Family Services or the Louisiana Department of Health. See Louisiana Revised Statutes 46:1
- Garnishment: Generally, garnishment is a court proceeding in which a creditor asks a court to order a third party who owes money to the debtor or otherwise holds assets belonging to the debtor to turn over to the creditor any of the debtor
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- Service of process: The service of writs or summonses to the appropriate party.
A. For purposes of this Section, the following words have the meaning ascribed to them by this Section unless the context clearly indicates a different meaning:
(1) “Delinquent of an amount equal to one month’s support” means that an obligor becomes delinquent of an amount equal to one month’s support obligation on the day after a payment is due, and the total amount owed equals or exceeds one month’s support obligation. A delinquency includes any judgment awarding retroactive support in accordance with La. Rev. Stat. 9:315.21 and 399.
(2) “Department” means the Department of Children and Family Services, office of children and family services, child support enforcement section.
(3) “Income” means any form of singular or periodic payment to an individual, regardless of source, including but not limited to wages, salary, interest, commission, compensation as an independent contractor, disability income, unemployment compensation, workers’ compensation, bonuses, judgments, settlements, annuity and retirement benefits, and any other payments made by any person, private entity, federal or state government, any unit of local government, school district, or any entity created by public act.
(4) “Obligee” means the person for whom support has been ordered, or the person whose support rights have been assigned to the department or for whom the department is providing support enforcement services, or the department.
(5) “Obligor” means the person ordered to pay support.
(6) “Payor” means the payor of any income to a person ordered to pay support, or any financial institution in which the obligor has assets.
(7) “Support” means child support, spousal support, and medical support established by a court order and any amounts ordered under La. Rev. Stat. 46:236.5.
B.(1) Upon entry of any court order for the establishment or modification of support, the court shall order an immediate income assignment, which shall be effectuated immediately by providing a written notice to the payor or payors of income, unless there is a written agreement between the parties or the court finds good cause not to require immediate income assignment. This income assignment may be effectuated by providing a written notice to any payor or payors of income, advising the payor to withhold an amount for current support, any judgments entered for the costs of genetic testing, plus an additional amount, to be determined by the obligee, toward any arrearage.
(2)(a) For purposes of this Subsection, a “written agreement” means a written alternative arrangement signed by both the custodial parent and the noncustodial parent, and signed by the state in cases in which there is an assignment of support rights to the state.
(b) For purposes of this Subsection, “good cause” exists if the court or the department finds that implementing an immediate income assignment would not be in the best interests of the child or finds proof of timely payment of previous support awards within the immediate past twelve consecutive months.
C.(1) In any case in which the department is not providing services and in which an immediate income assignment has not been issued, the case shall be subject to immediate income assignment upon a delinquency of an amount equal to one month’s support. To effectuate an income assignment under this Subsection, the obligee shall provide the obligor written notice that there is a delinquency and that the obligee intends to seek the issuance of an income assignment order. The notice shall include a form petition to stay service. The notice shall be served by any method provided by law for service of process. The cost of such service shall be paid by the person for whom support has been ordered.
(2) The person ordered to pay support may prevent an income assignment order from being served by filing a petition to stay service with the clerk of court within fifteen days after the notice.
(3)(a) Upon receipt of a petition to stay service, the clerk of court shall certify the petition and forward it to the appropriate court, which shall set a hearing on the petition within forty-five days.
(b) The court shall notify the person ordered to pay support and the person for whom support has been ordered or the department or its representative of the time and place of the hearing on the petition to stay service.
(4) If the obligor does not file a petition to stay service, any payor or payors of income may be served with a notice to withhold an amount for current support, plus an additional amount toward any arrears, to be determined by the court.
D.(1) In any case in which the department is providing services and in which an income assignment has not been issued, the case shall be subject to an immediate income assignment upon a delinquency of an amount equal to one month’s support. In such cases, the department may provide a written notice to the payor or payors of income to withhold an amount for the current support, plus an additional amount, determined by the department, toward any arrears. Subsequently, the department shall provide the obligor with a notice advising that an arrearage exists and that a notice of an immediate income assignment has been served on the payor of income. The notice may be by certified mail, regular mail, transmission by electronic means, or personal or domiciliary service upon the payor or payors of income. The notice to the obligor may be served at the obligor’s last known address. The cost of service of the notice upon the payor and notice to the obligor shall be borne by the department.
(2) The obligor may contest the effectuation of the income assignment by filing a petition to stay service with the court within fifteen days after receipt of the notice. The petition to stay shall stop the income assignment. The grounds to stay service shall be limited to a dispute concerning the existence or amount of the delinquency. The hearing on the petition to stay shall be scheduled within thirty days of filing the petition. If the court rules against the obligor, he shall pay all court costs, including reimbursing the department the cost of service to the payor and notice to the obligor.
E.(1)(a) Upon receipt of a notice to withhold, the payor of income shall withhold from the income of the obligor the amount ordered for support, as it becomes due, together with an additional sum, determined by the obligee, subject to the limitations provided by La. Rev. Stat. 13:3881, to discharge the past due amount, and shall continue the withholding each pay period or each singular or periodic payment until further order of the court or until the requirements in Subparagraph (b) of this Paragraph have been met. The payor of income shall implement withholding no later than the first pay period or first singular or periodic payment that occurs following receipt of the notice of income assignment and shall remit amounts withheld within seven days.
(b) An income assignment may be terminated by the obligor by complying with all of the following:
(i) Provide the payor and the obligee with an affidavit for the termination of the income assignment order which states current support is no longer due and no arrears are present and due.
(ii) The affidavit or a true copy thereof must be sent within three days after the affidavit is executed, by certified mail to last known addresses of both the payor and the obligee. The affidavit or a true copy thereof must be filed with the court which issued the income assignment order. The obligee has thirty days from the date the affidavit was executed to notify both the payor and the obligor, by certified mail, of an objection to the termination.
(iii) If the payor does not timely receive an objection to the affidavit for the termination of the income assignment order from the obligee, the payor shall stop withholding from the obligor’s income no later than the first pay period or first singular or periodic payment that occurs thirty days after the affidavit was executed.
(iv) If the payor timely receives notice of the obligee’s objection to the affidavit for the termination of the income assignment order, the payor shall continue withholding income according to the assignment order until further order of the court.
(v) If the payor receives an objection to the obligor’s affidavit for the termination of the assignment from the obligee after the income assignment has been terminated pursuant to this Subsection and within ninety days from the date the affidavit for the termination was executed by the obligor, the income assignment order shall be reinstated by the payor no later than the first pay period or first singular or periodic payment of income.
(vi) The nonprevailing party shall pay all court costs and attorney fees of the prevailing party if a court order to terminate the income assignment is requested because of an objection made by the obligee.
(2) If the income seized is from disposable earnings, the sum shall not exceed the percentage of disposable earnings subject to seizure as defined in La. Rev. Stat. 13:3881 for the payment of a support obligation.
(3) The total amount withheld, including the name and social security number of the obligor, shall be forwarded within seven days as provided in the income assignment order. If the payor is withholding more than one support payment for a person ordered to receive support or the department or its representative per pay period or per singular or periodic payment of income, the payor may combine the payments into one check each pay period or singular or periodic payment of income, but shall identify the amount withheld from each person ordered to pay support and the date on which the money was withheld. In all cases in which the department is providing services, the payor shall include the case number or numbers, as indicated on the notice to withhold, with each check submitted.
(4) The payor may deduct a five-dollar processing fee from the income of the person ordered to pay support per each pay period or per singular or periodic payment during which the income assignment order is in effect.
(5) When two or more orders to withhold income for support are received, the orders shall be prorated; however, the total amount withheld for all support orders shall not exceed the percentage of disposable earnings subject to seizure as defined in La. Rev. Stat. 13:3881 for the payment of a support obligation. If there are insufficient funds available to satisfy all orders, the orders for current support shall be given priority on a pro rata basis.
(6)(a) For the purpose of this Paragraph, “lump-sum payment” means a single payment made all at once from any source, in lieu of recurring payments that would be received by an obligor over a period of time.
(b)(i) When a payor intends to issue a lump-sum payment in the amount of three hundred dollars or more to an obligor, the payor shall notify the department at least fifteen days prior to its issuance of the lump-sum payment. Nothing in this Paragraph shall prevent a payor from reporting a lower lump-sum payment at the payor’s discretion.
(ii) Notice of the lump-sum payment shall be provided in a method approved by the department. The department shall provide information regarding all approved methods on its website.
(c) If, after fifteen days from the date the payor notifies the department, the payor has not received any verification from the department as to any withholdings of the lump-sum payment, then the payor may dispense the lump-sum payment in full to the obligor.
(d) The provisions of this Paragraph apply only when the department is providing support enforcement services.
(e) A payor who complies with the requirements of this Paragraph shall not be subject to the penalties provided for in Subsection K of this Section.
F. When the court renders judgment in an action brought pursuant to this Section, attorney fees and court costs may be awarded to the prevailing party.
G. Any person whose income is assigned under the provisions of this Section shall advise the court of any change in his employment during the effective period of assignment and shall advise the court of the name and address of any new payor of any singular or periodic payment of income. The information required herein shall be filed with the clerk of court on a form which shall be developed and distributed by the Department of Children and Family Services. The payor of a person whose income is assigned under the provisions of this Section shall inform the assignee in writing within ten days when the obligor terminates employment or the payment of income terminates and provide the obligor’s last known address and the name and address of the obligor’s new employer, if known. Any person who violates the provisions of this Subsection may be found guilty of contempt of court.
H. A support order issued pursuant to this Section shall be given preference to any other garnishment proceeding.
I.(1) The notice to withhold shall operate as an assignment and shall be binding, fourteen days after mailing or other transmission, or from the department by administrative order of income assignment, upon any existing or future employers or payors of income of the person ordered to pay support.
(2) Notwithstanding any provision of this Section, a payor may choose to receive notices to withhold in an electronic format from the department in accordance with the provisions of 42 U.S.C. § 654a(g)(1)(A).
J. No payor shall discharge, discipline, or otherwise penalize any person ordered to pay support because of the duty to withhold income.
K. When a payor willfully fails to withhold or pay over income pursuant to a valid income assignment order or willfully discharges, disciplines, or otherwise penalizes a person ordered to pay support, or otherwise fails to comply with any duties imposed by this Section, the court, upon due notice and hearing:
(1) Shall enter judgment against the payor and direct the issuance of an execution for the total amount that the payor failed to withhold or pay over.
(2) May impose a fine against the payor, up to fifty dollars per day, for the failure to withhold or pay over the support in accordance with the provisions of the income assignment notice.
(3) May order reinstatement of or restitution to the person ordered to pay support, or both, where the person has been discharged, disciplined, or otherwise penalized by the payor as prohibited in this Section.
L.(1) When a person failing to comply with an order of support derives income from self-employment, commission, or from any payor not subject to the jurisdiction of the court, or any other type of employment which makes the application of Subsection E of this Section impractical, the court may require the person to enter into bond to the court in the amount of the past due support plus a sum fixed by the court to ensure the payment of support as it becomes due for a period of not less than three months, with sureties approved by the court, conditioned upon the person making payment as previously ordered.
(2) The court may order the cancellation of the bond upon proof of full payment of past due and current support pursuant to the support order as follows:
(a) The court may order cancellation of a bond issued pursuant to an initial order twelve months after proof of full payment of past due and current support payments.
(b) The court may order the cancellation of a bond issued pursuant to a second or subsequent order twenty-four months after proof of full payment of past due and current support payments.
M. Any person who willfully initiates a false proceeding under this Section or who willfully fails to comply with the requirements of this Section shall be punished as in cases of contempt of court.
N. The rights, remedies, duties, and penalties created by this Section are in addition to and not in substitution for any other rights, remedies, duties, and penalties created by any other law.
O. A payor who complies with a notice to withhold issued in accordance with this Section shall not be subject to civil liability to any person or agency with regard to the payor’s withholding of support from the obligor’s income.
Acts 1990, No. 743, §1, eff. July 24, 1990; Acts 1991, No. 503, §2; Acts 1993, No. 145, §2; Acts 1995, No. 426, §1; Acts 1995, No. 480, §1; Acts 1997, No. 1250, §1, eff. July 1, 1997; Acts 1998, 1st Ex. Sess., No. 7, §1, eff. April 24, 1998; Acts 1999, No. 563, §1; Acts 2001, No. 564, §1; Acts 2001, No. 859, §1, eff. June 26, 2001; Acts 2003, No. 1068, §2, eff. July 2, 2003; Acts 2004, No. 510, §1, eff. June 25, 2004; Acts 2008, No. 444, §3; Acts 2010, No. 358, §1; Acts 2010, No. 686, §1, eff. June 29, 2010; Acts 2010, No. 877, §3, eff. July 1, 2010; Acts 2012, No. 64, §1; Acts 2012, No. 255, §7; Acts 2015, No. 80, §2, eff. Oct. 1, 2015; Acts 2016, No. 102, §1; Acts 2018, No. 206, §5.