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

1. SYLLABUS

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.

2. OPINION

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