Introduction
Under Arizona law, parents have a legal responsibility to provide “all reasonable support” for their biological or adopted children (ARS 25-501). While there aren’t specific dollar-amounts for “reasonable support” imposed on custodial parents, a non-custodial parent is obligated to pay child support according to the state’s Child Support Guidelines. This amount is often included in the divorce decree and is typically deducted directly from the non-custodial parent’s paychecks.
If you have two jobs and the state is unable to garnish sufficient income to cover your child support payments from your primary employer, the state has the right to garnish wages from your second job to bridge the gap.
It’s also possible for the state to garnish wages from your second job if you are behind on your child support payments. While this can place a significant burden on someone who is working two jobs to make ends meet, Arizona law places the obligation to pay child support above all other financial obligations, and the courts have a duty to act in the best interests of the child.
That said, there are limitations on how much the state can garnish from your paycheck. These limitations are based on the Consumer Credit Protection Act and are primarily based on your disposable income. You also have the ability to petition for modification of child support under certain conditions.
Income Withholding Requirements
In most cases, state law naturally requires child support orders include an income withholding order for the non-custodial parent. This allows the state to deduct child support payments directly from your paycheck, just like the government does with income taxes.
The income withholding order can be waived if both parents voluntarily sign a waiver, but the custodial parent and the state child support enforcement agency have the right to reissue an income withholding order at any time—especially if you’re behind on your child support payments.
Your Employer’s Obligation to Comply
If your employer receives an income withholding notice from the state, your employer is legally obligated to comply with the child support withholding order (in other words, your employer has no choice in the matter).
However, your employer is also bound to the income withholding limits contained in the Consumer Credit Protection Act (CCPA), so the employer can’t withhold more than a certain percentage of your paycheck. That said, the state is well aware of the limitations in the CCPA, so your income withholding order should be within those limitations.
Keep in mind that while your employer may not be too thrilled with their obligation to garnish your wages, they can’t fire you because of it. Federal and state law prohibit employers from firing employees because of the extra paperwork and administrative work required to comply with a garnishment order. However, if you have multiple garnishment orders from creditors, that may unfortunately be cause for termination.
Garnishment Limitations
Child support payments are generally calculated based on the needs of the child and the income of the non-custodial parent. While the needs of the child and the parent’s obligation to support their wellbeing are the first priority, there are restraints on how much a parent can pay. These limits are determined based on whether the non-custodial parent is financially supporting another family, and if the parent is behind on their child support payments.
Garnishment limitations are based on a percentage of your net income (sometimes referred to as disposable income). Your net income is the amount you take home after federal, state, local, Social Security, and Medicare taxes are deducted from your gross paycheck. Note that this doesn’t include other pretax amounts that are withheld by your employer such as retirement plan contributions or health insurance payments.
Under the Consumer Credit Protection Act, your employer cannot deduct more than 50% of your net income if you are supporting a second family and you are up to date on your child support payments. This limit stays in place if you fall a little behind on your payments, but when you are 12 weeks past due on child support payments the maximum garnishment amount increases to 55%. If you are not supporting a second family and you are at least 12 weeks overdue on your child support payments, your employer can withhold up to 65% of your net income.
If a situation arises where your primary employer cannot withhold enough to satisfy your child support obligation, the state may issue an income withholding notice to your second employer to cover the difference. However, the amount withheld by your second employer is bound by the same CCPA limitations, and as long as you are current on your child support payments, the total amount withheld between the two employers shouldn’t exceed the amount in the original withholding order.
Garnishing Past-due Child Support
When a non-custodial parent owes past-due child support, the state may modify the income withholding notice to your employer in order to collect the balance in arears. The employer is still bound by the limitations of the CCPA, but you may find yourself being garnished for more than the amount in your original income withholding order. If you have a second job, it’s likely that the state will issue an income withholding order to that employer, too, up to the CCPA limitations.
If the value garnished by your employers isn’t enough, you’re still responsible for paying the amount of unpaid child support in arears. Depending on the amount owed, you could be penalized with a lien on your property, revocation of your driver’s license, or even jailtime in some extreme situations.
In these cases, it’s critical to consult with an attorney as soon as possible, as you may be able to modify the child support agreement to lower your obligation, and you may be able to reach an agreement with your former spouse and the state to avoid harsher penalties.
Modifying Child Support
When the court issues a child support order, that order lasts until the child turns 18, or if the child is still in high school, until they turn 19. The child support order is intended to be permanent until that point, but there are options in place to protect against the financial devastation of a parent.
ARS 25-503 allows for the modification or termination of a child support order if the court finds evidence of “a showing of changed circumstances that is substantial and continuing.” While the language is intentionally broad, it’s generally interpreted to include circumstances such as significant pay decreases, termination (being laid off or fired), and substantial changes in health insurance plans. However, the law does not provide protection for non-custodial parents who quit their job for the primary purpose of lowering their disposable income.
If you have experienced or anticipate a qualifying “changed circumstance,” you’ll need to file a petition with the court to obtain an order modifying the original child support obligation. If your petition is granted, the modified order may be retroactive to the day that you filed the petition for modification, though it’s often only retroactive to the first day of the month following notice of the petition (ARS 25-327). That means you are still responsible for any child support payments in arrears.
Call the Family Law Team at (480) 467-4348 to discuss your case today.