Current Illinois law requires that the what is referred to an “income withholding notice.” Federal law uses the acronym IWO (Income Withholding Order) referring both to notices and order although Illinois does not require a judge’s signature.
Illinois law also states that the IWO form must provide all the rights and duties of employers. A new Illinois law creates a duty on employers which went into effect July 1, 2017. This was the result of the legislature largely gutting the previous law regarding penalties upon employers who fail to withhold and the attendant problems for DHFS in IV-D type cases, etc.
The Federal OMB form itself technically expires July 2017. However, the post July 2017 form has not been approved by the Federal OMB yet. As of this date, we are not certain when it will be released. Don Ray Esq, of Rockford has informed me that as of July 2017, the close to final bill has been circulated with the majority of the updates, etc., that will be incorporated into the newest version.
The changes to Illinois law regarding Income Withholding forms is yet one more area where child support in Illinois had a triple witching “hour” on midnight June 30, 2017.
The previously effective statutory scheme will no longer exists regarding child support;
- Pub. Act 100-15 (on June 30, 2017, effective July 1, 2017) is now the law in Illinois.
- Withholding Notice “Expiration” Date: The form withholding notice approved by the OMB technically will go out of date. The current form is available here:
- https://www.acf.hhs.gov/css/resource/income-withholding-for-support-form — OMB 970-0154. Now that the form states, “OMB Expiration Date – 7/31/2017. The OMB Expiration Date has no bearing on the termination date of the IWO; it identifies the version of the form currently in use.”
- The new form is being formulated and should be available soon. For the April draft form that had been subject to commentary click here:
Illinois family lawyers seeking to enforce child support should also be aware of new provisions added to the Income Withholding for Support Act: 750 ILCS 28/50.5. It is titled, “Administrative fines imposed by the Department of Healthcare and Family Services.”
And this goes to the importance and need for a unified state form income withholding notice, as updated from time to consider both the ongoing requirements of the Federal form as well as continuing developments in Illinois law. Accordingly, the form currently being used for income withholding notices is no longer be consistent with the statutory requirements as of July 1, 2017. All Illinois lawyers should be aware of this!
The new legislation providing for an enhanced remedy available to DHFS that provides:
(a) The administrative fines provided for under this Section are in addition to any existing fines or penalties against a payor provided for in other Sections of this Act and do not affect who would be entitled to receive those existing fines and penalties. In addition to any fines or penalties provided for in this Act, when a payor wilfully fails, after receiving 2 reminders from the Department of Healthcare and Family Services, to withhold or pay over income pursuant to a properly served income withholding notice or otherwise fails to comply with any duties imposed by this Act, the Department may impose a fine upon the payor not to exceed $1,000 per payroll period. The fine shall be payable to the Department of Healthcare and Family Services and may be used to defray the costs incurred by the Department in the collection of the past-due support and penalties provided for in this Act. The Department of Healthcare and Family Services shall place the fines collected into a special fund created to implement the purposes of this Section and the fines shall be utilized for the purposes provided for in this Section. After deducting the costs incurred by the Department of Healthcare and Family Services in the collection of the past-due support and penalties provided for in this Act, the remainder of the fines collected under this Section shall be distributed proportionally to the counties based on their population. The counties shall use these funds to assist low income families in defraying the costs associated with seeking parenting time.
(b) The Department of Healthcare and Family Services may collect the fine through administrative liens and levies on the real and personal property of the payor as provided in Sections 10-25 and 10-25.5 of the Illinois Public Aid Code.
(c) The payor may contest the fine as provided in Sections 10-25 and 10-25.5 of the Illinois Public Aid Code. ***
Gunnar J. Gitlin