ILLINOIS SUPREME COURT RULES STIRCT COMPLIANCE FOR NOTICE OF WITHHOLDING FOR CHILD SUPPORT CASES

Pursuant to the Illinois Income Withholding for Support Act, individuals owed child support have the option to have the child support owed to them directly withheld from the obligors paycheck. Child support is not the only way to utilize money being withheld through a Notice to Withhold, you are also able to directly receive maintenance or what was formerly known as alimony.

In a recent case that was just decided by the Illinois Supreme Court, Schultz v. Performance Lighting Inc., 2013 IL 115738, a unanimous Illinois Supreme Court held that under state and federal law, a notice of withholding is valid even if the obligee fails to sign it. However, the notice is invalid and nonbinding if it does not contain all of the several pieces of information enumerated in and required by the state withholding act (750 ILCS 28/1, et seq.) and the federal Child Support Enforcement Act (42 U.S.C. § 651, et seq.).

In Schultz, the ex-wife’s lawyer served a notice of withholding on the ex-husband’s employer. Contained within the notice, the ex-wife was to include the ex-husband’s social security number, along with some other pieces of information expressly required by the Act. However, it did not include such information. The employer did not comply with the notice and never withheld any funds from the ex-husband’s paychecks because of such.

A little over two years later, the ex-wife sued the ex-husband’s employed under a provision of the Act that provides a penalty of $100 per day against employers who knowingly fail to comply with a court order for garnishment after having been served with a notice of withholding that is “regular on its face.”

The supreme court affirmed the lower court judgment for the ex-husband after finding that strict compliance with the provisions of the Act is required for withholding orders and notices, and the failure to include the ex-husband’s social security number in the notice prepared by the wife’s attorney meant that the document was not “regular on its face” and did not impose any duty to withhold on the employer.

Thus, since the ex-wife’s notice was invalid, the courts ruled that the ex-husband’s had no duty to garnish the ex-husband’s wages, and it was not liable for the monetary penalties in the state Act because the notice of withholding was not “regular on its face.”

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