TN 10 (08-11)
PR 04015.052 Virginia
A. PR 11-141 Is a signature needed on a Virginia Income Withholding for Support Form?
DATE: August 10, 2011
The Virginia Code, which establishes the requirements for child support in that State, does not include the requirement of an authorizing signature. In the absence of that requirement, a signature does not need to be provided on Income Withholding Orders.
Question Presented and Brief Answer
Does Virginia law require a signature on Income Withholding Orders?
No. The section of the Virginia Code that sets forth the requirements for orders to a child support obligor’s source of income does not include a signature requirement, and in the absence of an explicit requirement a signature does not need to be provided.
The Fredericksburg Virginia Field Office received an Income Withholding for Support form for a beneficiary who is not complying with his child support obligations. This document notifies the Field Office of its obligation to withhold the portion of his benefits necessary for the child support payment and to send the withheld income to the Virginia Division of Child Support Enforcement. This form is promulgated by the Office of Management and Budget, and the Office of Child Support Enforcement for the United States Department of Health & Human Services requires states to use this form when submitting a withholding notice/order to a federal agency. See http://www.acf.hhs.gov/programs/cse/newhire/employer/federal/income_withholding.htm.
The signature line for the issuing official on the second page of the form contains the following language: “Signature (if required by State or Tribal law).” The form received by the Fredericksburg Field Office did not include a signature and did not state whether a signature was required under Virginia law. Under the Social Security Act, the Agency may withhold benefits for child support, if the state procedural requirements are satisfied. See 42 U.S.C. § 659, 666(b)(4)(a).
Under the Virginia Code, a court order is not necessary for income withholding. Va. Code Ann. § 63.2-1923(A); Va. Code Ann. § 63.2-1903(A). The Virginia Department of Social Services is authorized by statute to issue administrative orders directing non-custodial parents to pay child support. Va. Code Ann. § 63.2-1923(A); Va. Code Ann. § 63.2-1903(A). These administrative orders have the force and effect of judicial orders. Va. Code. Ann. § 63.2-1915. Every administrative order must provide for immediate income withholding by employers. Va. Code Ann. § 63.2-1923(A). The Virginia Code sets forth a number of requirements for administrative orders for withholding – a signature by the administrative official is not one of those requirements. Va. Code. Ann. § 20-79.3. The requirements are:
The name and correct social security number of the obligor and the name and correct address of the payee;
That the employer shall withhold and pay out of the disposable income . . .a single monetary amount. . . for each regular pay period. . . ;
That the income deduction shall begin with the next regular pay period of the obligor following service of the order. . . ;
A statement of the maximum percentage . . . which may be withheld from the obligor’s disposable income;
That, to the extent required by the provisions for health care coverage contained in the order, the employee shall (i) enroll the employee. . . and the employee’s dependent children . . . as covered persons in a group health insurance plan . . ., and (ii) deduct any required premiums from the employee’s income to pay for the insurance. . . .;
That a fee of five dollars . . . may be charged by the employer and withheld from the obligor’s income . . . ;
That the order is binding upon the employer and obligor and withholding is to continue until further notice . . . ;
That the order shall have priority over any other types of liens . . .;
That the obligor’s rights are protected . . .and that no employer shall discharge any employee, take disciplinary action against an employee, or refuse to employ a person by reason of the fact that his income has been made subject to a deduction. . . ;
The address to which the withholding is to be sent. . . ;
That the employer shall be liable for payments which he fails to withhold . . . ;
That employers shall remit payments on each regular pay date . . . ;
That the employer shall be deemed to have complied with the order by (i) mailing on each regular pay date . . . any amount required to be deducted. . . ;
That the employer and obligor shall notify the Department promptly when the obligor terminates employment . . . ;
That amounts withheld from multiple employees . . . may be combined into a single payment when payable to the same payee;
No order or directive shall require employers of 10,000 or more employees to make payments other than by combined single payment . . .
Payment pursuant to an order issued under this section shall serve as full acquittance of the employer under any contract of employment;
Notice that any employer who fails to timely withhold payments pursuant to this section shall be liable for any amount not timely withheld;
That the employer shall provide to the employee a copy of the withholding order and the notice to the employee sent by the court.
Va. Code. Ann. § 20-79.3.
Therefore, the Virginia Code specifically enumerates the requirements for income withholding orders, and does not include a signature requirement. Moreover, the Virginia Department of Social Services has published guidelines for income withholding for employers. Nowhere do these guidelines require a signature. See http://www.dss.virginia.gov/family/dcse/income_witholding.pdf. Therefore, Virginia law does not require a judicial order, and the administrative order does not require a signature.
Income Withholding Orders/ Notices of Support sent by the Virginia Division of Child Support Services within the Virginia Department of Social Services are valid and enforceable even when they do not include a signature. Therefore, the SSA Field Offices in Virginia should comply with these administrative orders.
Eric P. K~
Acting Regional Chief Counsel, Region III
Edward C. T~
Assistant Regional Counsel
An “employer” is defined as “the source of any income.” Va. Code Ann. § 63.2-1900. Therefore, whether the child support obligor is an SSA employee or a beneficiary makes no difference – for withholding purposes the agency is the “employer” either way. Id.