Question Presented and Brief Answer
Question:
Does Virginia law require a signature on Income Withholding Orders?
Answer:
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.
BACKGROUND
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).
DISCUSSION
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). [1] 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:
-
1.
The name and correct social security number of the obligor and the name and correct
address of the payee;
-
2.
That the employer shall withhold and pay out of the disposable income . . .a single
monetary amount. . . for each regular pay period. . . ;
-
3.
That the income deduction shall begin with the next regular pay period of the obligor
following service of the order. . . ;
-
4.
A statement of the maximum percentage . . . which may be withheld from the obligor’s
disposable income;
-
5.
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.
. . .;
-
6.
That a fee of five dollars . . . may be charged by the employer and withheld from
the obligor’s income . . . ;
-
7.
That the order is binding upon the employer and obligor and withholding is to continue
until further notice . . . ;
-
8.
That the order shall have priority over any other types of liens . . .;
-
9.
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.
. . ;
-
10.
The address to which the withholding is to be sent. . . ;
-
11.
That the employer shall be liable for payments which he fails to withhold . . . ;
-
12.
That employers shall remit payments on each regular pay date . . . ;
-
13.
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. . . ;
-
14.
That the employer and obligor shall notify the Department promptly when the obligor
terminates employment . . . ;
-
15.
That amounts withheld from multiple employees . . . may be combined into a single
payment when payable to the same payee;
-
16.
No order or directive shall require employers of 10,000 or more employees to make
payments other than by combined single payment . . .
-
17.
Payment pursuant to an order issued under this section shall serve as full acquittance
of the employer under any contract of employment;
-
18.
Notice that any employer who fails to timely withhold payments pursuant to this section
shall be liable for any amount not timely withheld;
-
19.
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.
Conclusion
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.
Sincerely,
Eric P. K~
Acting Regional Chief Counsel, Region III
By_____________
Edward C. T~
Assistant Regional Counsel