Current through September 24, 2024
(1) Criteria
for Issuance.
(a) Income Withholding for
Support shall be ordered by the court for any order of child support issued,
modified, or enforced on or after July 1, 1994 unless the provisions of T.C.A.
§
36-5-501(a)(2) or
§
36-5-116(a)(1)
apply.
(b) The Income Withholding
for Support Order shall be issued by the Clerk of the Court, or by the
Department or its contractors in Title IV-D cases, regardless of whether
support payments are in arrears on the date of the order and shall include an
amount sufficient to satisfy an accumulated arrearage, if any, within a
reasonable time.
(c) When any
Income Withholding for Support Order is issued, for purposes of calculating any
arrears, it shall be rebuttably presumed that one-half of the amount payable
for current support shall be a reasonable amount which should be ordered for
making a reduction of an arrearage.
(d) The Income Withholding for Support Order
may include an amount to pay medical expenses which the obligor is obligated or
ordered to pay.
(e) The amount
withheld shall not exceed fifty percent (50%) of the obligor's income after
FICA, withholding taxes, and a health insurance premium which covers the child
are deducted.
(f) The Income
Withholding shall include an amount necessary to cover the fee due the Court
Clerk or the Department, as appropriate. Court Clerks or the Department may
issue an Income Withholding Order to recover court costs or fees which the
obligor fails to pay.
(2) In all cases in which the court has
ordered immediate income assignment, the Clerk of the Court, or the Department
of Human Services or its contractor in Title IV-D support cases, shall within
two (2) business days issue an Income Withholding Order as described in
1240-02-02-.04 to an employer
once the employer of a support obligor is identified.
(3) No order of the court shall be necessary
to issue an Income Withholding Order in circumstances where no previous Income
Withholding Order has issued or in circumstances in which the obligor of child
support was not subject to income withholding pursuant to the provisions of
T.C.A. §
36-5-501(a)(2),
and the records of the court or the Department show the obligor to be in
arrears as defined in T.C.A. §
36-5-101(f)(1)
and T.C.A. §
36-5-501(b)(1)(G).
(4) If the support payments were previously
ordered paid directly to the custodial parent, guardian or other caretaker of
the child, and the obligor is in arrears as defined in T.C.A. §
36-5-101(f)(1)
and T.C.A. §
36-5-501(b)(1)(G),
the custodial parent, guardian or custodian may complete an Affidavit of
Arrearage pursuant to
1240-02-02-.11 to request the
issuance of an Income Withholding for Support Order by, respectively, the Clerk
or the Department of Human Services. No order of the court shall be necessary
for the issuance of an Income Withholding for Support Order pursuant to this
paragraph.
(5) Income Withholding
for Support Order issued by the Clerk in Non-Title IV-D Cases.
(a) When an Income Withholding for Support
Order is issued by the Clerk of the Court in non-Title IV-D cases, and if the
obligor requests a hearing pursuant to T.C.A. §
36-5-501(c)(1)
regarding the withholding within fifteen (15) days of the date of the notice,
or the date of personal service, if used, the Clerk shall promptly docket the
case with the magistrate or court as provided by Tennessee Code Annotated,
Title 36, Chapter 5, Part 4 and shall give notice to all parties, and shall
take any other action as is necessary to ensure that the court meets the time
frame in subparagraph (b).
(b) In
all cases in which the obligor requests a hearing, the magistrate or court
shall conduct a hearing and make a determination, and the Clerk shall notify
the obligor and the employer of the decision of the court or magistrate within
forty-five (45) days of the date of the issuance of the Income Withholding for
Support.
(6)
Transmission of Orders and Notices.
(a) The
notices and orders required to be issued pursuant to this Chapter shall be
transmitted to any employer of an obligor and to obligors by any method chosen
by the Court or the Department, including but not limited to: certified mail,
return receipt requested; regular mail; electronic mail; facsimile
transmission; or by personal service, and may be generated by computer or on
paper. If a notice or order is returned or otherwise not deliverable, then
service shall be had by any alternative method chosen by the Court or the
Department, as described in the preceding sentence. Service by mail is complete
upon mailing.
(b) In all cases in
which an immediate assignment of income has not been previously ordered, or in
which an obligor who is ordered to pay child support in which either an
immediate income assignment was not required by the court due to good cause
provisions as found by the court, or in which there is a written agreement by
the parties for alternative payment arrangements, the Notice of Income
Assignment required by this Chapter to be sent to an obligor shall be issued
within two (2) business days of the date the Income Withholding for Support is
sent to the employer. The notice must be sent to the address of the obligor, if
known, or to the obligor at the address of the employer of the obligor if the
obligor's employer's address is unknown.
(c) The notices and orders required by this
chapter need not be entered in the minutes of the court, but shall be in the
records of the case in the court when an Income Withholding for Support Order
is issued.
(d) Before taking action
against an employer or other payer of income for failure to comply with this
part, the Court or Department or its contractor shall ensure that service of
the notice and order was made by certified mail, return receipt requested, or
by personal service.
(e)
Electronically reproduced signatures, if necessary, shall be effective to issue
any orders or notices pursuant to this Chapter.
(7) Proof of mailing the Income Withholding
for Support Order and notices sent by the Department or its contractors shall
be evidenced by a screen print from the TCSES computer system showing the date
of mailing which shall be prima facie evidence of the date of
mailing.
(8) The local Title IV-D
child support office will be responsible for defending all administrative
appeals of any such orders in Title IV-D support cases and appeals filed
pursuant to T.C.A. §
36-5-1003.
Authority: T.C.A. §§
4-5-202,
36-5-501,
71-1-132(c), 42
U.S.C. §§651 et seq., 42 U.S.C. §§652(a)(11), 654(9)(E),
654a(g)(1)(A)(ii) and 666(a)(8) and (b), 45 C.F.R. §§303.6(c)(1),
303.7, and 303.100.
