Section 30-3-61

Section 30-3-61Withholding order required in child support orders; employer to withhold support from income due and pay to designee; income withholding order issued by another state; when order served on employer; delinquency of support payments.

(a) Any provision of Section 8-5-21, to the contrary notwithstanding, any original decree, judgment, or order issued by a court of this state for the payment of support, any decree or judgment entered pursuant to a petition to modify an original decree or award of support, any decree or judgment of contempt of court for failure to pay support as previously ordered by a court of this state, or any decree or judgment for criminal or civil nonsupport shall include as a separate section a withholding order subject to subsection (c) of this section directing any employer of the obligor to withhold and pay over to the clerk of the court or the Department of Human Resources, or its designee, whichever is appropriate, out of income due or to become due the obligor at each pay period, an amount ordered to be paid for support. The withholding order shall not under any circumstances be waived by mutual agreement of the parties to the case.



(b) The withholding order shall recite the amount of the obligor's continuing support obligation and shall require the withholding of the support obligation from the income due or becoming due to the obligor at each pay period and payment to the clerk of the court out of which the order is issued or the department or its designee, whichever is appropriate within seven business days of the date the obligor is paid the paycheck from which the support is withheld. Provided, if the obligor's support obligation is ordered to be paid monthly and the obligor's pay periods are at more frequent intervals, the employer may withhold at each pay period an amount cumulatively sufficient to equal the total monthly support obligation and pay the amount withheld at each pay period over to the clerk of the court or the department or its designee, within seven business days of the date the obligor is paid the paycheck from which the amount is withheld. The employer shall withhold the obligation amount as directed in the income withholding order, except that when an employer receives an income withholding order issued by another state, the employer shall apply the income withholding law of the state of the obligor's principal place of employment in determining the following:



(1) The employer's fee for processing an income withholding order.



(2) The maximum amount permitted to be withheld from an obligor's income.



(3) The time periods within which the employer is required to implement the income withholding order and forward the obligor's payment.



(4) The priorities for withholding and allocating income withheld for multiple child support obligees.



(5) Any withholding terms or conditions not specified in the order.



(c) The withholding order shall also recite the duty of the obligor and the employer to notify the collecting agency of any change in employment or termination of income of the obligor as provided in this article.



(d) A withholding order issued pursuant to this section shall be a continuing order and shall remain in effect and be binding upon any employer upon whom it is served until further order of the court. Where any order of support is entered or modified, the withholding order issued pursuant to this section shall be served immediately upon the obligor's employer and shall take effect immediately; except immediate withholding shall not be implemented in any case where one of the parties demonstrates, and the court finds, there is good cause not to require immediate income withholding, or a written agreement is reached between both parties which provides for an alternative arrangement. In such cases, income withholding shall be implemented if the absent parent fails to make payments in an amount equal to one month's support obligation, or the absent parent requests immediate withholding, or the payee or the department requests that withholding begin and the absent parent has failed to make a payment or payments on the date or dates due.



(e) In the event the obligor becomes delinquent in the support payments in a dollar amount equal to one or more month's support obligation, or a withholding order entered at the request of the department was not immediately served upon the employer, or at such time as the obligor wishes to have the income withholding order served upon his employer, the obligee or the obligor may file with the clerk of the court a sworn affidavit stating the appropriate basis upon which service of the income withholding order is now being sought. Upon the filing of the affidavit and the payment of a docket fee in the same amount as is prescribed by Section 12-19-75 for the filing of a garnishment proceeding, a copy of the withholding order issued pursuant to this section shall be served upon the employer pursuant to the Alabama Rules of Civil Procedure. A copy shall be served upon the obligor by first class mail. Provided, the cost of the filing shall not be prepaid if, upon the filing of an affidavit of substantial hardship, the obligee or obligor is found by the court to be incapable of prepaying the cost or if the affidavit is filed by the department or a representative of the department, but in such cases the cost of the filing shall be taxed as costs against the obligor at the time service of the order is requested and shall be withheld from the obligor's first pay period subjected to the income withholding order. Additionally, when service upon the employer is requested by means of certified mail, the actual cost of the service shall be prepaid in all cases at the time the service is requested.



(f) In the event that the obligor with a support obligation imposed by a support order issued or modified in the state before October 1, 1996, becomes delinquent in support payments in a dollar amount equal to one or more month's support obligation, the income of the obligor, if not otherwise subject to withholding, shall become subject to withholding, without the need for a judicial or administrative hearing.

(Acts 1984, No. 84-445, p. 1035, §2; Acts 1985, 2nd Ex. Sess., No. 85-989, p. 338, §2; Acts 1989, No. 89-660, p. 1312, §1; Acts 1991, No. 91-559, §1; Acts 1993, No. 93-321, p. 484, §1; Acts 1997, No. 97-447, p. 772, §11.)