Texas law provides for a court to enter a wage withholding order as a tool to help in collecting spousal maintenance (alimony) payments and child support payments. The order requires the employer of the party obligated to pay to withhold a portion of his paycheck.
The employer is also required to send that money to the person entitled to receive the money. Wage withholding can be involuntary or voluntary and can be done by a wage withholding order or a voluntary writ of withholding.
The withholding order is required to contain for how long the spousal maintenance payments are to be made and the amount of the payment. The combined amount of child support payments and spousal maintenance payments under a wage withholding order can be more than 50% of the responsible party’s “disposable earnings.”
The Texas Family Code defines “disposable earnings” as earnings after legally required deductions, union dues, non-discretionary retirement contributions, the cost of medical treatment, hospitalization and disability insurance for the party responsible to pay and his children.
If the court did not enter a wage withholding order with the divorce decree, the party to receive the payment can apply for a writ of withholding under the Family Code. A writ is filed with the court clerk rather than with the court itself, although the court must receive notice of the filing.
If the writ is not challenged, the process will often proceed to completion if it has been accurately drafted and contains all essential elements and both parties have signed the writ.
However, if the writ of withholding is challenged by the party responsible to pay, a hearing must be held by the court on the issue. A writ of withholding may be challenged by a motion to stay or by special exceptions if there is a defect in the writ.
When the employer receives a withholding order or writ, the employer must begin withholding funds beginning on the first paycheck after it has received the order or writ. The employer must continue to withhold funds and remit payment to the party named for the duration of time specified in the order or writ.
An employer who does not withhold funds properly or fails to remit funds to the proper party faces liability for the payment of those funds, fines and payment of attorneys’ fees.