QUESTION PRESENTED AND BRIEF ANSWER
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Question:
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Does West Virginia law require a signature on an Income Withholding for Support form?
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Answer:
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No. The section of the West Virginia Code that states what content must be included
in a notice to the 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 Charleston West Virginia Field Office received an Income Withholding for Support
form for one of its employees who is not complying with his child support obligations.
This document notifies the Field Office of its obligation to withhold the portion
of the employee’s wages necessary for the child support payment and to send the withheld
income to the West Virginia Bureau for Child Support Enforcement. The second page
of the form contains the following language: “Signature (if required by State or Tribal
law),” which is followed by a blank line on which the issuing official can sign his
or her name. The form received by the Charleston Field Office did not include a signature
and did not indicate whether a signature was required under West Virginia law.
DISCUSSION
First, it is important to note that the document in question is not actually an Income
Withholding Order issued by a court; it is a form generated and sent by the Bureau
for Child Support Enforcement for the purpose of simply providing notice to the obligor’s
employer. W. Va. Code §§ 48-14-401, 48-14-402, 48-14-404. Therefore, it does not require
the signature of a judge. W. Va. Code §§ 48-14-404. It does, however, have the same
binding legal effect as a court order, W. Va. Code § 48-14-402, and therefore it is
necessary to examine the relevant law in West Virginia to determine if the signature
of any issuing official is required.
West Virginia law on support orders for withholding income for the payment of child
support is governed by Part 4 (Withholding From Income of Amounts Payable As Support)
of Article 14 (Remedies For The Enforcement of Support Obligations) of Chapter 48
(Domestic Relations) of the West Virginia Code. Under West Virginia law, every child
support award issued by a court must include, or be deemed to include, language requiring
automatic income withholding. W. Va. Code §§ 48-14-401, 48-14-402. Thus, there is
no separate income withholding order from the judge. Instead, once the court issues
the child support award, the Bureau for Child Support Enforcement has the authority,
by statute, to enforce the withholding provision without any further judicial action.
W. Va. Code § 48-14-404. The Bureau for Child Support Enforcement need only issue
a notice – the document at issue here – to the employer for that employer to begin
withholding. W. Va. Code §§ 48-14-406, 48-14-407. West Virginia law imposes ten specifically
enumerated requirements for the content of that notice, such as the amount to be withheld,
that the employer must remit the withheld income to the Bureau for Child Support Enforcement,
that the employer may deduct a fee, etc. W. Va. Code § 48-14-407. Significantly, a
signature from the official at the Bureau for Child Support Enforcement is not one
of the specifically enumerated requirements. Id.
In addition, Oregon uses an “Income Withholding For Support” form that is nearly identical
to the one used by West Virginia. One crucial difference between the West Virginia
and Oregon forms, however, occurs on page 2 on the Oregon form. After the portion
of the form that asks for a “Signature (if required by State or Tribal law),” it states
“Signature not required by Oregon law (ORS 25.399).” O.R.S. § 25.399 lists the contents
that are required in a notice to withhold, and thus serves the same purpose as W.
VA. Code §§ 48-14-401, 48-14-401, and 48-14-407. Like the West Virginia statutes,
it does not specifically require a signature. Therefore, because the two states are
so similar in their procedural requirements for income withholding notices – and because
neither explicitly requires a signature – West Virginia’s statutes should be interpreted
the same way as Oregon’s, and no signature is necessary.
This interpretation is consistent with policies adopted by other states that use the
Income Withholding for Support Form. For example, Illinois’ Withholding Act of 19971 eliminated the requirement that a custodial parent complete a withholding order signed
by a judge and allowed income withholding orders “to be served and complied with by
employers without any judicial approval.”2 This aids custodial parents by limiting the number of procedural hurdles they need
to go through in order to obtain the support money to which they are entitled. West
Virginia’s use of the Income Withholding for Support form is a strong indicator that
it shares this policy goal with states like Illinois.
CONCLUSION
Income Withholding for Support notices sent by the West Virginia Bureau for Child
Support Enforcement are valid and enforceable even when they do not include a signature.
Therefore, the Charleston WV Field Office should comply with their instructions.
Sincerely,
Eric P. K~
Acting Regional Chief Counsel, Region III
By:______________________
Edward C. T~
Assistant Regional Counsel
1 750 ILCS 28/1, et seq.
2 Donald E. Ray, The Illinois Income “Withholding Notice” and S.B. 100, https://www.iicle.com/articles/Article.aspx?ID=44 (last visited July, 30, 2009).