TITLE 15
Domestic Relations

CHAPTER 15-16
Income Withholding

SECTION 15-16-5


§ 15-16-5 Requirement of income withholding – Support orders issued in this state or other jurisdictions.

(a)(1) In the case of each obligor against whom a support order: (i) has been issued or modified in this state; or (ii) has been issued or modified in another jurisdiction; or (iii) has been issued or modified in another jurisdiction and has been filed and registered with the department in accordance with § 15-16-13, and in either case the order is being enforced under the state plan; so much of an obligor's income must be withheld in an amount sufficient to comply with the order for current support when the obligor has failed to make payment of support as provided in this section or when the obligor or obligee has requested withholding in accordance with the requirements of this section.

(2) If an obligor owes a support arrearage in addition to the amount to be withheld to comply with the order for current support, the order to withhold income must include an amount equal to ten percent (10%) of the current support order, which amount shall be applied toward liquidation of support arrearages; provided, that the additional withholding to satisfy arrearages, when added to the amounts withheld to pay current support and to provide for the withholding agent's fee provided in § 15-16-10, may not exceed the limit permitted under § 303(b) of the Consumer Credit Protection Act, 15 U.S.C. § 1673(b).

(3) Upon petition by an obligor, the court in its discretion may reduce the amount required to be withheld in liquidation of support arrearages to a nominal or token amount, if the court finds that additional withholding would work an undue hardship on the obligor. The income withholding must occur without the need for any amendment to the support order involved or for any further action by the court or other entity which issued the order.

(b) With respect to a support order issued or modified in this state, an obligor shall become subject to income withholding and the income withholding may be initiated by the department:

(1) When the obligor has failed to make a support payment in full within fourteen (14) days of the due date for the support payment, notwithstanding that payment of the arrearage may be made subsequent to the obligor's receipt of notice of income withholding or prior to the date of the hearing; or

(2) The date on which the obligor requests, in writing, that the income withholding begin, whichever is earliest.

(c) With respect to an order issued or modified in this state, the department may initiate income withholding:

(1) Utilizing and relying on the information officially recorded on the CSE system as to support orders and arrearages; or

(2) After receipt of a certified copy of the support order with all modification, together with the sworn statement of the obligee as to support arrearages and stating the name and address of the obligor and his or her employer or withholding agent.

(d) With respect to a support order issued or modified in another jurisdiction, income withholding shall be initiated by the department when the support order has been filed and registered in accordance with § 15-16-13, and the department and/or the court shall apply the law of the other jurisdiction as to amount or duration of support arrearages necessary to commence income withholding. In all other respects, the provisions of this chapter and the laws of this state shall apply.

(e)(1) The only basis for contesting income withholding initiated under this section is a mistake of fact. For purposes of this section, mistakes of fact shall be limited to the following:

(i) An error in the amount of current support or support arrearage;

(ii) The mistaken identity of the obligor;

(iii) An error in the amount of income to be withheld in payment of current support and arrearages; or

(iv) The amount to be withheld exceeds the maximum amount permitted under § 303(b) of the Consumer Credit Protection Act, 15 U.S.C. § 1673(b).

(2) The burden shall be on the obligor to establish a defense of mistake of fact.

(f) The department shall provide the obligor with notice required in § 15-16-6 regarding the income withholding initiated under this section and the procedures the obligor should follow if he or she desires to contest the income withholding on the grounds that the income withholding is not proper because of mistakes of fact. The notice shall be sent by regular mail at the obligor's most recent address of record.

(g) An obligor may contest the income withholding by filing or mailing a written statement with the department within fourteen (14) days of the mailing of the notice under § 15-16-6, which statement shall specify the mistake or mistakes of fact claimed by the obligor.

(h) Payment by an obligor of the support arrearage stated in the notice to the obligor is not a valid defense to income withholding.

History of Section.
(P.L. 1987, ch. 163, § 1; P.L. 1990, ch. 478, § 2; P.L. 1996, ch. 129, § 6; P.L. 1996, ch. 131, § 6; P.L. 1996, ch. 132, § 6; P.L. 1996, ch. 133, § 6; P.L. 1997, ch. 170, § 6.)