14-14-111.5. Income assignments for child support or maintenance.
Statute text
(1) Legislative declaration. The general assembly hereby finds and declares that, for the good of the children of Colorado and to promote family self-sufficiency, there is a need to strengthen Colorado's child support enforcement laws and to simplify, streamline, and clarify the existing laws relating to wage assignments previously provided for in section 14-14-107 and immediate deductions for family support obligations previously provided for in section 14-14-111. In support of this effort, the general assembly hereby adopts the term "income assignment" to be used to provide consistency and standardization of the process for collecting child support and maintenance.
(2) (a) Whenever an obligation for child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt is initially determined, whether temporary or permanent or whether modified, the amount of child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt shall be ordered by the court or delegate child support enforcement unit to be activated immediately as an income assignment subject to section 13-54-104 (3), from the income, as defined in section 14-10-115 (3), that is due or is to become due in the future from the obligor's employer, employers, or successor employers or other payor of funds, regardless of the source, of the person obligated to pay the child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt.
(b) Any order for support must include the following, if available:
(I) The name, date of birth, and sex of each child for whom the support is ordered;
(II) The obligee's name, residential and mailing addresses, and date of birth;
(III) The total amount of current support to be paid monthly in each category of support;
(IV) The date of commencement of the order and the date or dates of the month that the payments are due;
(V) The total amount of arrears that is due, if any, in each category of support as of the date of the order; and
(VI) The obligor's name, residential and mailing addresses, and date of birth.
(3) Activation of income assignment. Income assignments must be activated in accordance with the following provisions:
(a) Immediate activation of income assignments. (I) (A) Upon entry of an order for child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt, the obligee, the obligee's representative, or the delegate child support enforcement unit shall cause a notice of income assignment to be served immediately as described in subsection (4) of this section.
(B) Unless an income assignment is required to be immediately activated pursuant to subsection (3)(a)(I)(A) of this section, or the income assignment is not subject to immediate activation pursuant to subsection (3)(a)(II) of this section, an income assignment may be immediately activated by the obligee, the obligee's representative, or the delegate child support enforcement unit by causing a notice to withhold income for support to be served upon the employer, trustee, or other payor of funds pursuant to subsection (4) of this section.
(II) Exceptions to immediate activation of income assignments. Income is not subject to immediate activation of an income assignment pursuant to this subsection (3)(a) in any case in which:
(A) One of the parties demonstrates, and the court or the delegate child support enforcement unit finds in writing, that there is good cause not to require immediate activation of an income assignment. For the purposes of this sub-subparagraph (A), "good cause" means the following: There is a written determination and explanation by the court or delegate child support enforcement unit stating why implementing immediate activation of an income assignment would not be in the best interests of the child; and the obligor has signed a written agreement to keep the delegate child support enforcement unit, the obligee, or the obligee's representative informed of the obligor's current employer and information on any health insurance coverage to which the obligor has access; and proof is provided that the obligor made timely payments without the necessity of income assignment in previously ordered child support obligations.
(B) A written agreement is reached between both parties that provides for an alternative arrangement, and such agreement is reviewed and approved in the record by the court. For purposes of this subsection (3)(a)(II)(B), the delegate child support enforcement unit is considered a party in all cases in which the custodian of a child is receiving support enforcement services from a delegate child support enforcement unit pursuant to section 26-13-106 (1) and as such must consent to the alternative written agreement. In all cases in which the custodian of a child is receiving support enforcement services from a delegate child support enforcement unit pursuant to section 26-13-106 (2), the obligee or the obligee's representative shall provide the delegate child support enforcement unit with notice of any agreement reached between the parties pursuant to this subsection (3)(a)(II)(B).
(b) (I) to (III) Repealed.
(IV) Agreement to activate. When an income assignment is activated pursuant to this subsection (3) and arrears are owed, as verified by the affidavit of arrears, the parties may agree to an amount of payment on the arrears, or the court or delegate child support enforcement unit may determine an appropriate amount for payment.
(V) Repealed.
(VI) A payment on arrears, plus interest, for support, if any, shall be included in an activated income assignment; however, the combined payment on current support and arrears is subject to section 13-54-104 (3), C.R.S.
(VII) Objections to income assignment. (A) The obligor may file with the court a written objection to the activation of an income assignment pursuant to this subsection (3) no later than fourteen days after actual notice. The obligor shall mail a copy of the written objection to the obligee or the obligee's representative.
(B) The objection shall be limited to the defense that there is a mistake of fact such as an error in the identity of the obligor or in the amount of the support.
(C) If the obligor files an objection, the court shall set and hold a hearing within forty-two days after the date the income assignment was issued. The court shall deny the objection without hearing if a defense in subsection (3)(a)(VII)(B) of this section is not alleged.
(D) At a hearing on an objection, the sole issue before the court is whether there was a mistake of fact as specified in sub-subparagraph (B) of this subparagraph (VII).
(E) At a hearing on an objection, reasonable attorney fees and costs may be awarded to the prevailing party.
(F) If an objection is based on the amount of arrears, the income assignment may be activated and enforced as to current support obligations, and the activation of the income assignment as to arrears shall be stayed pending the outcome of a hearing on such objection.
(4) Notice to withhold income for support. (a) Except as provided in subsection (4)(b) of this section, a notice to withhold income for support must be served upon the employer, trustee, or other payor of funds by first-class mail or by electronic service if the employer, trustee, or other payor of funds mutually agrees with the state child support enforcement agency to receive such income assignments electronically. Receipt of notice by the employer, trustee, or other payor of funds confers jurisdiction of the court over the employer, trustee, or other payor of funds.
(b) A notice to withhold income for support is not required if the obligor's source of income is unemployment compensation benefits and the custodian of the child is receiving support enforcement services pursuant to section 26-13-106. In such cases, the state child support enforcement agency shall electronically intercept the unemployment compensation benefits through an automated interface with the department of labor and employment.
(c) A notice to withhold income for support must be provided on a federal office of management and budget-approved income withholding for support form and must contain the following information and, except in cases in which the obligee is receiving child support enforcement services pursuant to section 26-13-106, must include a certified copy of the support order:
(I) The name and social security number of the obligor;
(II) A statement that withholding must begin no later than the first pay period that begins at least fourteen working days after the date on the notice to withhold income for support;
(III) Instructions concerning withholding the deductions, including:
(A) The amount to be withheld for current support and current maintenance when included in the child support order, the amount to be withheld for past due support, the amount to be withheld for past due maintenance when included in the child support order, the amount to be withheld for child support debt, the amount to be withheld for medical support, the amount to be withheld for current maintenance, the amount to be withheld for past due maintenance per month, and the amount to be withheld for processing fees, if any. In the event that the pay periods of the employer are more frequent, the employer shall withhold per pay period an appropriate percentage of the monthly amount due so that the total withheld during the month will total the monthly amount due.
(B) A statement that the employer, trustee, or other payor of funds may deduct a fee to defray the cost of withholding and that the employer, trustee, or other payor of funds shall refer to the laws governing the work state of the employee for the allowable amount of such fee; and
(C) That, if section 13-54-104 (3) applies, the employer, trustee, or other payor of funds shall not withhold more than the limitations set by said section;
(IV) Instructions about disbursing the withheld amounts, including the requirements that each disbursement:
(A) Must be forwarded within seven working days after the date of each deduction and withholding would have been paid or credited to the employee;
(B) Must be forwarded to the address indicated on the notice;
(C) Must be identified by the remittance identifier, the name and social security number of each obligor, the date the deduction was made, the amount of the payment, and the family support registry account number for cases ordered to be paid through the family support registry; and
(D) May be combined with other disbursements in a single payment to the family support registry, if required to be sent to the registry, if the individual amount of each disbursement is identified as required by subsection (4)(c)(IV)(C) of this section;
(V) A statement specifying whether or not the obligor is required to provide health insurance for the children who are the subject of the order;
(VI) A statement that, if the employer, trustee, or other payor of funds fails to withhold income as the notice to withhold income for support directs, the employer, trustee, or other payor of funds is liable for both the accumulated amount that should have been withheld from the obligor's income and any other penalties set by state law;
(VII) A statement that the employer, trustee, or other payor of funds is subject to a fine determined pursuant to state law for discharging an obligor from employment, refusing to employ an obligor, or taking disciplinary action against an obligor because of a notice to withhold income for support;
(VIII) A statement that the employer shall notify the family support registry, in writing, if payments are required to be made through the registry promptly after the obligor terminates employment and that the employer shall provide the family support registry, in writing, with the obligor's name; date of separation; case identifier, which is the family support registry account number; last-known home address; and the name and address of the obligor's new employer, if known;
(IX) A statement that withholding under the notice to withhold income for support has priority over any other legal process under state law against the same income, that federal tax levies in effect before receipt of this notice to withhold income for support have priority, and that the requesting agency should be contacted if there are federal tax levies in effect;
(X) A statement that as long as the obligor is employed by the employer, the income assignment must not be terminated or modified, except upon written notice by the obligee, the obligee's representative, the delegate child support enforcement unit, or the court;
(XI) A statement that the employer, trustee, or other payor of funds is required to report and withhold amounts from lump sum payments such as bonuses, commissions, or severance pay;
(XII) A statement that Colorado employers, trustees, or other payors of funds must comply with this section;
(XIII) A statement that, if the designated field on the notice to withhold income for support is checked, the employer, trustee, or other payor of funds is required to provide a copy of the notice to withhold income for support to the obligor; and
(XIV) A statement that a fraudulent submission of a notice to withhold income for support subjects the person submitting the notice to an employer, trustee, or other payor of funds to a fine of not less than one hundred dollars and court costs and attorney fees.
(4.5) When a Colorado employer receives an income assignment, or its equivalent, issued by another state, the employer shall apply the income assignment law of the obligor's principal state of employment. The obligor's principal state of employment shall be presumed to be Colorado unless there is a specific employment contract to the contrary.
(4.7) Income assignments must be paid through the family support registry pursuant to section 26-13-114.
(5) When activated, an income assignment shall be a continuing income assignment and shall remain in effect and shall be binding upon any employer, trustee, or other payer of funds upon whom it is served until further notice from the obligee, the obligee's representative, the delegate child support enforcement unit, or the court.
(6) Priority. (a) A notice of income assignment for support shall have priority over any garnishment, attachment, or lien.
(b) If there is more than one income assignment for support for the same obligor, the total amount withheld, which is subject to the limits specified in section 13-54-104 (3), C.R.S., shall be distributed in accordance with the priorities set forth in this paragraph (b):
(I) (A) First priority shall be given to income assignments for orders for current monthly child support obligations and maintenance when included in the child support order.
(B) If the amount withheld is sufficient to pay the current monthly support and maintenance for all orders, the employer or other payer of funds shall distribute the amount to all orders and proceed to the second priority to distribute any remaining withholding. If the amount withheld is not sufficient to pay the current monthly support and maintenance in all orders, the employer shall add the current monthly support and maintenance in all orders for a total and then divide the amount of current monthly support and maintenance in each order by the total to determine the percent of the total for each order. The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.
(II) (A) Second priority shall be given to income assignments for all orders for medical support when there is a specific amount ordered for medical support.
(B) If the amount withheld is sufficient to pay the medical support for all orders, the employer shall distribute the amount to all orders and proceed to the third priority to distribute any remaining withholding. If the amount withheld is not sufficient to pay the medical support in all orders, the employer shall add the medical support in all orders for a total and then divide the amount of medical support in each order by the total to determine the percent of the total for each order. The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.
(III) (A) Third priority shall be given to income assignments for child support debt and support arrears, including medical support arrears.
(B) If the amount withheld is sufficient to pay the child support debt and support arrears for all orders, the employer shall distribute the amount to all orders and proceed to the fourth priority to distribute any remaining withholding. If the amount withheld is not sufficient to pay the child support debt and support arrears in all orders, the employer shall add the child support debt and support arrears in all orders for a total and then divide the amount of child support debt and support arrears in each order by the total to determine the percent of the total for each order. The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.
(IV) (A) Fourth priority shall be given to income assignments for orders for maintenance only.
(B) If the amount withheld is sufficient to pay the maintenance only for all orders, the employer shall distribute the amount to all orders. If the amount withheld is not sufficient to pay the maintenance only in all orders, the employer shall add the maintenance only in all orders for a total and then divide the amount of maintenance only in each order by the total to determine the percent of the total for each order. The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.
(7) No employer, trustee, or other payer of funds who complies with a notice of income assignment issued pursuant to this section and as provided in subsection (8) of this section shall be liable to the obligor for wrongful withholding.
(8) An employer, trustee, or other payer of funds subject to this section who:
(a) Fails to abide by the terms enumerated in the notice of income assignment may be held in contempt of court;
(b) Wrongfully fails to withhold income or distribute payment in accordance with the provisions of this section is liable for the accumulated amount the employer, trustee, or other payer of funds should have withheld and not disbursed from the obligor's income, including, upon personal service pursuant to rule 4 of the Colorado rules of civil procedure, being subject to the jurisdiction of the court for purposes of entry of judgment pursuant to sections 13-52-101 to 13-52-111 and rule 54 of the Colorado rules of civil procedure, up to the amount wrongfully withheld and costs associated with establishing and enforcing the judgment and any other penalties set by state law;
(c) Discharges, refuses to hire, or takes disciplinary action against an employee because of the entry or service of an income assignment pursuant to this section may be held in contempt of court or be subject to a fine.
(9) If an employer discharges an employee in violation of the provisions of this section, the employee may, within ninety-one days, bring a civil action for the recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall be lost wages not to exceed six weeks, costs, and reasonable attorney fees.
(10) (a) The obligee, the obligee's representative, the delegate child support enforcement unit, or the court shall promptly notify the employer, trustee, or other payer of funds, in writing, when an income assignment is modified or terminated.
(b) An income assignment must be modified when:
(I) The support order is modified by the court; or
(II) The arrears payment is modified pursuant to subsection (3)(b)(IV) of this section.
(c) An income assignment shall be terminated when all current maintenance when included in the child support order, past due support, past due maintenance when included in the child support order, child support debt, medical support, current monthly child support, current maintenance, past due maintenance, and processing fees, if any, owed under the support order are paid in full.
(11) Disbursements received from the employer, trustee, or other payer of funds by a delegate child support enforcement unit shall be promptly distributed.
(12) The clerk of the court shall provide, upon request, any information required by the parties about any support order or any order affecting an order for support, including judgments and registered orders.
(13) The department of human services is hereby designated as the income withholding agency as required by the federal "Social Security Act", as amended.
(14) This section applies to any action brought under this article or article 5, 6, or 10 of this title or under article 4 or 6 of title 19, C.R.S., or under article 13.5 of title 26, C.R.S.
(15) Nothing in this section shall affect the availability of any other method for collecting child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt.
(16) Income assignments under this section shall be issued by a delegate child support enforcement unit under the provisions of the "Colorado Administrative Procedure Act for the Establishment and Enforcement of Child Support", created in article 13.5 of title 26, C.R.S.
(16.3) The employer, trustee, or other payer of funds shall include with the first disbursement an indication of whether dependent health insurance coverage is available to the obligor and whether the obligor has elected to enroll the dependents who are the subject of the order in such coverage and that such information shall be included in a disbursement at least annually thereafter or at the next disbursement in the event of any change in the status of health insurance availability or coverage.
(16.5) The employer shall not be required to collect, possess, or control the obligor's tips, and any such tips shall not be owed by an employer to an obligor.
(16.7) The employer, trustee, or other payer of funds may extract a processing fee of up to five dollars per month from the remainder of the obligor's income after the deduction and withholding.
(17) For purposes of this section, unless the context otherwise requires, "income" means wages as defined in section 14-14-102 (9).
(18) (Deleted by amendment, L. 2000, p. 1704, 2, effective July 1, 2000.)
(19) A person submitting a fraudulent notice to withhold income for support to an employer, trustee, or other payor of funds is subject to a fine of not less than one hundred dollars plus court costs and attorney fees.
History
Source: L. 96: Entire section added, p. 600, 12, effective July 1. L. 97: (2)(f), IP(4), (4)(d)(I), (4)(i), and (8)(c) amended and (4.5) and (18) added, p. 1271, 10, effective July 1. L. 98: (3)(b)(III) amended, p. 766, 15, effective July 1. L. 99: (2)(f)(II) amended, p. 1085, 3, effective July 1. L. 2000: (2)(a)(II)(E), IP(4), (4), (8)(b), (10)(c), and (18) amended and (4)(m), (4)(n), (16.3), (16.5), (16.7), and (19) added, pp. 1704, 1708, 2, 3, effective July 1. L. 2002: IP(4) amended, p. 23, 2, effective July 1. L. 2007: (2)(f)(I) amended, p. 108, 4, effective March 16. L. 2011: IP(4) amended, (SB 11-123), ch. 46, p. 119, 4, effective August 10. L. 2012: (3)(b)(II)(I), (3)(b)(II)(K), (3)(b)(VII)(A), (3)(b)(VII)(C), IP(4), and (9) amended, (SB 12-175), ch. 208, p. 835, 38, effective July 1. L. 2021: (2), IP(3), (3)(a)(I), IP(3)(a)(II), (3)(a)(II)(B), (3)(b)(IV), (3)(b)(VII)(A), (3)(b)(VII)(C), (4), and (10)(b) amended, (3)(b)(I), (3)(b)(II), (3)(b)(III), and (3)(b)(V) repealed, and (4.7) added (HB 21-1220), ch. 212, p. 1121, 4, effective July 1; (19) amended, (SB 21-271), ch. 462, p. 3159, 161, effective March 1, 2022. L. 2023: (4)(c)(XIV), (8)(b), and (19) amended, (SB 23-173), ch. 330, p.1975, 5, effective June 2.
Annotations
Cross references: For the legislative declaration contained in the 1997 act amending subsection (2)(f), the introductory portion to subsection (4), and subsections (4)(d)(I), (4)(i), and (8)(c) and enacting subsections (4.5) and (18), see section 1 of chapter 236, Session Laws of Colorado 1997.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "Legislative Update", see 12 Colo. Law. 1257 (1983). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985).
Annotator's note. Since 14-14-111.5 is similar to 14-14-107 as it existed prior to the 1996 repeal of said section, relevant cases construing that provision have been included in the annotations to this section.
Pursuant to the fourteenth amendment's due process clause, before a forward-looking income withholding order is issued, direct-pay child support obligors must be afforded advanced notice and an opportunity to be heard. Nakauchi v. Cowart, 2022 COA 77, 519 P.3d 397.
Statutory language is clear that an order for wage assignment is mandatory if the obligor cannot establish one of the two specified defenses. Purpose of new subsection (2) was to effect a mandatory and expedited procedure for wage assignment when default in a child support payment occurred; provision for a limited hearing was included to afford the obligor due process. In re Barnes, 692 P.2d 329 (Colo. App. 1984).
Section clearly applies to maintenance, whether or not combined with child support. In re Connell, 831 P.2d 913 (Colo. App. 1992).
Defense against wage assignment that the full amount claimed is not due is contemplated by section and therefore success on such defense authorizes an award of attorney fees under section. In re Watters, 782 P.2d 1220 (Colo. App. 1989); In re Sabala, 802 P.2d 1163 (Colo. App. 1990).
Attorney fee award to obligor must be reconsidered by trial court where obligee also prevails in part. In re Sabala, 802 P.2d 1163 (Colo. App. 1990).
There was a hearing on an objection where the amount due was stipulated prior to the hearing because the issues at the hearing are limited to the identity of the obligor and the amount of the obligation, and an award of fees to the prevailing party is intended to discourage exaggerated claims or attempts to delay payment of valid claims. In re Vivens, 885 P.2d 301 (Colo. App. 1994).
Wage assignment is mandatory if the obligor cannot establish one of the specified defenses. In re Barnes, 692 P.2d 329 (Colo. App. 1984); In re Sabala, 802 P.2d 1163 (Colo. App. 1990); In re Connell, 831 P.2d 913 (Colo. App. 1992).
Obligor may be subjected to more than one wage assignment. In re Sabala, 802 P.2d 1163 (Colo. App. 1990).
Denver department of social services entitled to keep proceeds from wage assignment even though assignment by ex-wife would take precedence since ex-wife did not file wage assignment. Department's actions did not deprive ex-wife of right or ability to receive current support since she could file her own assignment. People in Interest of D.C., 797 P.2d 840 (Colo. App. 1990).
Accumulated deductions in a PERA member's contribution account are not subject to assignment for payment of future child support obligations. In re Riggs, 786 P.2d 504 (Colo. App. 1989), cert. denied, 797 P.2d 744 (Colo. 1990).