In a Texas divorce or child custody case the court will apportion financial responsibility for the well-being of the children by ordering child support. The Texas Family Code deals extensively with ordering, paying and enforcing child support orders. A child support order involves several people and entities–not all lawyers–who need to understand and follow a child support order.
Most child support in Texas and other states is paid through payroll deductions by employers and sent to a state agency empowered to monitor child support.
To simplify and clarify the process, most states like Texas utilize a federal income withholding order form which is easy to read for parents and employers.
Consistency across states allows orders to follow an obligor parent from state to state without risking the enforceability of the child support order in a new state.
This form order, referred to as an Income Withholding Order or Income Withholding for Support form, is a relatively simple order form that can be quickly read and understood.
An income withholding order is an order to the obligor parent’s employer ordering the employer to make payroll deductions and send them to the state. It is not an order directed to the parents or other parties to a divorce or child custody case. Using a simplified child support withholding order makes it easier for non-lawyers to understand the order and what needs to be done to comply with the order.
Today’s post will discuss the income withholding order for child support in Texas, why you need one and what to do once you have one.
What is a withholding order in Texas?
In Texas, like all other states, a judge typically orders child support in a divorce with children or a child custody case. Child support orders ensure that the children receive financial support by both parents to provide for their health, safety, housing, education and other needs.
Under Chapter 154 of the Texas Family Code the judge in a divorce with children or child custody case must consider and order provisions regarding financial support for the children. Family courts have broad authority under the Texas Family Code to consider support amounts and then to enforce child support if unpaid. The most common way child support orders are fulfilled by the obligor parent is through an income withholding order that deducts child support payments from the obligor’s paychecks.
Why is a written child support income withholding order is necessary in Texas?
When a family court in Texas orders child support the judge must sign an order clearly describing child support and the terms under which it must be paid. If the judge does not sign a written order then the court cannot enforce child support and the obligor (the parent ordered to pay child support) may not have a legal duty to pay.
The most common way a parent pays child support in Texas is through a wage order deducting child support from paychecks. By ordering withholding from paychecks for child support the court can reasonably ensure payment of child support from income due to the obligor parent. The parent’s employer then must also comply with the order and send deductions to the government entity assigned responsibility for monitoring child support payments in this case.
An income withholding order for child support describes how much child support must be deducted by the employer for child support and where it must be sent on the obligor parent’s behalf.
What is the Texas Income Withholding for Support form?
In Texas family courts use the income withholding for support form as a child support order to provide employers to establish payroll deductions for child support. The income withholding order (IWO) used by Texas and other states was created by the federal Department of Health & Human Services for easy application across states (and tribes). This form is OMB 0970-0154. The income withholding order form is available as a fill in the blank form from the Attorney General of Texas.
The income withholding for support form is generally completed by either the attorney for the parent seeking child support or the judge. The judge will then sign the form turning it into a court order. The order is then delivered to the obligor parent’s employer who must comply.
The income withholding order must clearly describe the issues not just for legal reasons but to make it easier on the employer, payroll and HR staff and the parents, to understand what the order requires.
If the order does not comply with the requirements of Chapter 154 of the Texas Family Code it may be defective and unenforceable. Using a form order eliminates questions about the required content or complexity of language.
The written order must include specific elements such as:
- Identify the obligor parent required to pay child support;
- Identify the obligee parent or conservator who will receive child support;
- Name the children who require support under the order;
- The employer ordered to comply with income withholding;
- The amount of child support ordered by the court;
- Breakdown the amounts to be paid per paycheck;
- Who must receive the child support payments;
- A warning that entities failing to comply may suffer penalties;
- Warnings about failing to pay child support.
If the obligor parent’s employer fails to comply with the child support income withholding order then it may also face penalties so it is important that employers can understand their duties under the order without having to pay attorneys to review the language and potentially contest an invalid order.
Why do I need an Income Withholding for Support form for child support in Texas?
As discussed above a court must issue a written order to legally require any person or entity to do anything. That written order must comply with legal requirements more complex that the focus of this post. Any written order must identify exactly who is subject to the order and what they must do under that order to comply.
The Texas Family Code identifies specific requirements for a child support order and an income withholding order. If an income withholding order does not comply with the basic legal requirements under Texas law or the more specific requirements of the Texas Family Code then the employer may have no legal duty to comply with the order.
The IWO form is reasonably clear to understand (at least as far as a legal document goes) so it helps remove barriers to employer compliance with the income withholding order. Obligees who receive child support payments want an easy process to obtain payments. The easier it is for the employer to comply the more likely child support will be paid from wages.
If you do not obtain an income withholding order than the employer has no duty and under Texas employment law cannot withhold child support from the obligor’s paycheck. The obligor still owes child support monthly but without income withholding it will be more difficult for the obligee to receive payments.
How do I fill out an Income Withholding Order form in Texas?
Typically in a child custody case or divorce with children your family law attorney will take care of drafting the income withholding order (IWO) for you. If you do not have an attorney then the judge may be willing to complete the order for you. If the judge does not complete the order then you will have to complete it and submit it with the other orders in your case.
The income withholding order form is simple to fill out if you have a child support order setting out the amounts due in child support. The Department of Health & Human Services form is a fillable pdf which makes it easy to complete without any special software. The information you will need to complete the order includes:
- The obligor parent’s name, SSN and date of birth;
- The obligor parent’s employer’s name and contact info;
- The employer’s federal tax ID;
- The child support payments ordered by the court;
- What state agency will act as the child support registry for your case.
It is a good idea to review the IWO form before you attempt to fill it out so you can obtain all of the information to complete the form at once. If you do not have a paycheck stub from the obligor parent with the employer’s information you will need that parent’s assistance or use a discovery tool to obtain that information.
Sometimes people will complete the IWO directed to any employer of the obligor parent. In my experience not all judges in Texas will sign an IWO drafted that way. There are reasonable questions about the legality of an order directed to an unnamed party.
In Texas most child support cases will use the Attorney General of Texas as a state disbursement unit (SDU) but if you appear in court without an attorney and you filed your case in a large county there may be a separate SDU available that provides additional family court services to unrepresented parties. The court clerk may be able to direct you to the county or district SDU if one exists.
What do I do with my Texas Income Withholding for Support form after I fill it out?
Once you have an income withholding order signed by the Texas judge in your case you must serve the IWO on the obligor’s employer. Until the employer receives the order it cannot withholding child support.
If you have an attorney then your attorney will take care of serving the order.
If you don’t have an attorney then you can ask the court clerk to serve a certified copy of the IWO on the employer. The court clerk will send the order to the employer by certified mail, return receipt requested. This can be a surprisingly expensive request in some counties.
Technically you can send the IWO by certified mail, return receipt requested; however, if the employer does not comply it may defend that it received your mail but the order wasn’t in it. The cost of having the court clerk serve the IWO can be insurance against that argument.
No matter how the IWO reaches the employer it is important that you serve the IWO as soon as the judge signs it. There are several reasons why you should not delay serving the IWO. First, the sooner you serve the order the sooner the employer will begin deducting support payments and send them to the SDU for processing and payment.
Second, child support obligation begins to accrue based on the date in the child support order. If the employer does not get the IWO for even a couple months then by the time the SDU starts receiving payments the obligor is already in arrears.
Interest may begin to accrue and the SDU may initiate enforcement proceedings to force the obligor to get caught up. Sometimes an obligor who is a month or two behind stays off the Attorney General’s radar but loses a job for a few months and quickly gets behind. The Attorney General may initiate enforcement proceedings after the first month of unemployment because their registry of payments shows several months of nonpayment. The Attorney General is not generous with considering the obligor’s situation.
I’ve seen more than a few working co-parent relationships become unpleasant due to an enforcement action neither parent expected.
What happens to the Income Withholding Order if the obligor parent changes jobs?
If the obligor parent changes jobs then either the obligee or the SDU must send an IWO to the new employer. If the order is directed to “any employer” then it is as simple as sending a certified copy to the new employer. The SDU also needs to know about the change in employment which often can be done online. If the IWO names an employer then you or the SDU will need to obtain an amended order with the new employer named.
What happens to the Income Withholding Order if the obligor parent moves states?
Moving states does not change the support order and may not even require a new IWO. If the obligor continues to work for the same company then the IWO stays in effect with the employer. If the obligor moves to a new state and starts working for a new employer then the new employer needs to receive an IWO.
Employers in another state are not bound by an order issued by a court without jurisdiction over it. Depending upon circumstances involved it may be necessary to have the child support order confirmed by a state court where the obligor moved and have that court issue a new IWO.
Family law differs among states both in law and procedure so it is best in these cases to either hire an experienced family law attorney or at least talk to the SDU in your support case.
What happens to the IWO if the Texas support order changes?
There are several reasons why the amount of support owed changes over time. When there are multiple kids involved the support order will change as each child reaches the age of majority and support stops for that child. Either party may seek modification of the support order to increase or decrease support over time.
If the support obligation changes then usually the withholding changes, too. In that case you, your attorney, or the SDU will need to ask the court to sign a new IWO and serve it on the employer.
Hiring child custody lawyers for child support in Texas
Although the IWO is a simple form to complete the process to obtain a child support order and ensure full payment of the order is not so easy. Navigating a child custody case or divorce with children carries legal, financial and family consequences for you and your children. Balancing the financial, legal and relationship issues in a family law proceeding is rarely a simple task. Experienced child custody lawyers understand these issues and the importance of balancing your goals and issues in the case. Your child custody lawyer can advise you on the tactical considerations and consequences of decisions. Talk to child custody lawyers in your area today about your situation.
