What Happens When An Employer Fails To Withhold Child Support?

Whether it is due to an agreement by the parties or because of a problem with missed payments, often times child support payments are made via income withholding. In an ideal world this is great for both parents. So long as the support-paying parent stays at a job, the custodial parent can rely on consistent payments.

On the flip side the support-paying parent does not have to remember to make payments and has an easy way to keep track and prove that payments have been made. This system falls apart, however, when an employer drops the ball and the withholding does not happen or the support is being withheld but then not reaching the custodial parent.

The Illinois Income Withholding Support Act

Income withholding for child support is governed by the Income Withholding Support Act. This law, which went into effect in 1999, combined all of the various withholding statutes into one Act rather than having them spread throughout the Illinois law books. One portion of this act deals with an employer’s failure to properly administer child support payments withheld from its employee’s wages. Under Section 35 of the Withholding Act a court can assess a $100-per-day penalty each time that an employer violates the act. Each time an employer knowingly fails to remit an amount that has been withheld from an employee’s paycheck, a new violation has occurred so a new penalty can be assessed. This can be collected in a civil action. Similarly, if an employer is failing to withhold the support to begin with, a similar $100-per-day penalty can be assessed, and the total penalty amount can climb as high as $10,000.

What is a Knowing Violation?

The difficulty in getting this penalty assessed is that under Illinois law one has to be able to prove that the employer “knowingly” violated the law. Statutorily there is a presumption that the violation is knowing if the employer, on more than one occasion, fails to pay the amounts withheld to the State Disbursement Unit within seven days of when the funds would have been paid to the employee. But this is only a presumption, which means that the employer can try to refute it.

Call Sullivan Taylor, Gumina & Palmer, P.C.

If you are supposed to be receiving or making child support payments via a withholding order, but the withholding is not happening, you need the help of an Illinois child support attorney. You should call the family law lawyers at Sullivan Taylor, Gumina & Palmer, P.C., P.C. We can help you straighten the situation out so that your children do not have to suffer for an employer’s mistake. Our phone number is (630) 756-5112.