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THE LEGAL EAGLE

GARNISHMENT AND INVOLUNTARY ALLOTMENT

INTRODUCTION: As a service to our legal assistance clients, we have prepared this handout with frequently asked questions involving garnishment and involuntary allotments for child support. It is, of course, very general in nature since no handout can answer your specific questions. We do ask, however, that you read over these questions and answers carefully in connection with your visit to our legal assistance attorneys so that you may have the fullest information available to help you with your family law problem. Comments, corrections and suggestions regarding this pamphlet should be sent to the address at the end of the last page.

1. Q. I AM OWED CHILD SUPPORT BY A SOLDIER UNDER A COURT ORDER. HOW DO I COLLECT IT IF THE SOLDIER REFUSES TO PAY?

A. There are two methods of collecting unpaid child support: Garnishment and Involuntary Allotment.

2. Q. WHAT IS GARNISHMENT?

A. Garnishment means going to court to get direct payments of support from a person ? s employer, deducted from his paycheck each month (just like taxes and Social Security). All pay after taxes is garnishable. That includes basic pay, hazardous duty pay, severance pay, sick pay, cash awards, pensions, retirement, etc. However, allowances, such as BAH (Basic Allowance for Housing), BAS (Basic Allowance for Subsistence) and Family Separation Allowances cannot be garnished. Garnishment may be used to enforce a soldier's obligation to pay child support (and/or alimony, too if state law allows it).

3. Q. CAN I USE GARNISHMENT PROCEEDINGS IN ALL STATES?

A. Yes. All states allow garnishment of pay or property to enforce a soldier's obligation to pay child support. Overseas, however, it may be another matter. For example, if you have a German court order and the soldier returns to the U.S., the soldier's pay is usually still within reach of the German courts, with only a little bit more effort. (There are a few states, which require a brand new action to be brought in that state's courts, but they are the exception.) A German court order must be obtained and forwarded to the U.S. court nearest where the soldier is living. The U.S. courts will decide whether there is sufficient evidence upon which to hold the soldier liable for payment of support. Some states allow the German prosecutor to file the action on its own, while other states require the mother's written consent. If the court accepts the German court's decision, it will honor the German court ? s support order and will require the garnishment of the soldier's wages.

4. Q. HOW DO I START A GARNISHMENT PROCEEDING FOR CHILD SUPPORT AGAINST A SOLDIER?

A. You must first have a court order requiring the soldier to pay child support. Secondly, you will probably need to hire a civilian attorney (or visit the child support enforcement agency, or CSEA) to obtain a garnishment order from the local court. Once the garnishment order is obtained from the local court, it must be served on the Defense Finance and Accounting Service (DFAS). The order should name DFAS as the garnishee and should contain enough identifying information to enable the garnishment order to be processed. The following identifying information about the individual owing child support (the other parent) is requested: full name, date of birth, Social Security number, military component (Army, Air Force, etc.), official duty station or worksite, and status of the other parent (active-duty military, civilian, Civil Service, etc.).

5. Q. HOW MUCH OF AN INDIVIDUAL ? S PAY MAY THE COURT GARNISH?

A. There are state and federal limitations on the amount of pay that can be garnished. Unless a lower maximum garnishment limitation is provided by state law, the maximum amount subject to garnishment will not exceed 50 percent of the disposable pay if the soldier is remarried and supporting a spouse and/or dependent child; or 60 percent if the soldier is single. An additional 5 per cent will apply to each maximum limit if the order states that the soldier is behind 12 weeks or more in support payments.

6. Q. CAN THE SOLDIER DO ANYTHING TO STOP THE GARNISHMENT?

A. The only way a soldier can stop the garnishment is to go to the court that issued it and ask the court to remove or reduce it. You must be notified if he or she tries to do this so that you can object.

7. Q. CAN THE ARMY WITHHOLD MONEY FROM A SOLDIER'S PAYCHECK WITHOUT GARNISHMENT?

A. Yes. The process is called Involuntary Allotment. Involuntary Allotment can be initiated if the soldier is at least two months behind in court-ordered child support and/or alimony payments, but only if the payments were payable through a state official, such as a clerk of court or CSEA.

8. Q. HOW CAN I REQUEST AN INVOLUNTARY ALLOTMENT?

A. To start an allotment, DFAS must receive a certified copy of the court order and written notice from an authorized person, agency, or court that the soldier is a least two months behind in the support payments. DFAS must provide notice to the soldier and the soldier's commander. The soldier may consult with a lawyer about the legal and other factors involved with respect to the soldier's support obligation and the failure to make payments under the obligation. The allotment will take effect 30 days after notice is given to the affected soldier, regardless of whether the soldier has consulted with a lawyer. If the order so provides, the amount may include arrearages as well as the amounts for current support.

9. Q. WHAT IS THE MAXIMUM AMOUNT OF THE INVOLUNTARY ALLOTMENT?

A. The amount of the allotment shall not exceed 60% of the soldier's salary unless the soldier is more than 3 months behind, in which case it can be 65%. The allotment may be discontinued or adjusted, but only upon notice from the authorized state official, and not by the soldier alone.

10. Q. WHAT OTHER LOCAL RESOURCES ARE THERE LOCALLY THAT CAN HELP ME?

OTHER LOCAL RESOURCES: ______________________________. [Here fill in details on local offices or agencies that can assist the reader, for example: For persons in the Kaiserslautern area, the Jugendamt (Youth Office) is very successful in enforcing U.S. and German child support orders. Their office is in the Rathaus, Willi Brandt Eins. Their phone number is 0631-3652709, and they speak English.]

11. Q. IF I HAVE OTHER QUESTIONS, WHAT SHOULD I DO?

A. See a legal assistance attorney or private attorney as soon as possible. Your lawyer can answer many questions and help you to make a fair and intelligent decision about your choices, options and alternatives. Our legal assistance office stands ready, willing and able to help you in these matters. Be sure to bring along with you to the interview a copy of any documents or court papers that might be helpful to your attorney. You may also want to read a copy of our LEGAL EAGLE handouts, ? Child Support Enforcement ? and ? Setting Child Support.

Location and hours of your Legal Assistance Office:__________________________

Information on local agencies, offices and resources:___________________

[rev. 1/08]

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THE LEGAL EAGLE SERIES OF CLIENT HANDOUTS IS PREPARED BY MARK E. SULLIVAN, CHAIR OF THE MILITARY COMMITTEE, ABA FAMILY LAW SECTION AND AUTHOR OF THE MILITARY DIVORCE HANDBOOK (AM. BAR ASSN. 2006). COMMENTS AND SUGGESTIONS SHOULD BE SENT TO HIM AT: 2626 GLENWOOD AVENUE , STE. 195, RALEIGH, N.C. 27608 [919-832-8507]; E-MAIL— MARK.SULLIVAN@NCFAMILYLAW.COM

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