Since October 2020, the Office of Child Support Enforcement provided a new Federal income withholding for support form.
For the current Federal form, click here: https://www.acf.hhs.gov/css/resource/income-withholding-for-support-form.
I have updated the previous version of the Illinois form that melds the State specific requirements with the Federal form.
Feel free to give me a call if you wish to receive a fillable copy of one that conforms to the Federal and State requirements!
Note that the Federal Office of Child Support Enforcement granted an extension/grace period for the use of the expired form that expired 9.30.21.
Form Available on Illinois Supreme Court’s Website.
There is a Supreme Court Approved notice for income withholding. See: https://www.illinoiscourts.gov/forms/approved-forms/forms-circuit-court/divorce-child-support-maintenance
This form is remains problematic and should not be used since it did NOT include the “fill in the blanks” type language that HFS’s form correctly had incorporated. (*But see below). The form referenced is simply the current Federal form with an addendum. On the ISBA Family Law Section Listserve this issue has been addressed at some length by attorneys including Donald Ray of Rockford.
Expired Illinois Form.
If you are using an Illinois form that states at the bottom right corner 171-60 (Rev 12/17) you should know that you are using an outdated Illinois form. The current Federal form 970-154 has an expiration date of 9/30/23. Note that these forms are updated every four years.
Further, there is a provision in the Income Withholding for Support Act that uses the mandatory “shall” and states:
(c) The income withholding notice shall:
(1) be in the standard format prescribed by the federal Department of Health and Human Services…
So, using the current Federal form is mandatory for there to be proper income withholding. The form itself states on its face that under certain circumstances you must reject the form and return it to sender. This would include not using the current form, although doing so might involve a different set of unintended consequences if there is only a minor discrepancy.
Maximum Withholding Blank Often Not Included, etc.
Also note that many forms are completed incorrectly by either leaving a blank for the maximum withholding or using the incorrect figure. The appellate court recently addressed this issue in Burns v. Delta Airlines, Inc., 2021 IL App (2d) 200313. The maximum penalty is 65% but the penalty should be included based upon whether the obligor is supporting another family or has an arrearage. In each case, the maximum penalty increases.
Thus, the lawyer or legal assistant completing the form needs to know the Federal caps. It specifies that he federal limit is 50% of the disposable income if the obligor is supporting another family and 60% of the disposable income if the obligor is not supporting another family. However, those limits increase 5% –to 55% and 65% –if the arrears are greater than 12 weeks. And in the Burns case, the appellate court struck down the enforceability of the IWO based upon the form being completed in an ambiguous manner in this regard. See: Gitlin on Divorce: 10-16[c] Penalty against Employer for Failure to Pay.
*Illinois Supreme Court Rules Problem with Our Adopting a Problematic Form.
Another problem is that the Illinois Supreme Court approved amendments to Rule 10-101 regarding Standardized Court Forms. The amendments, effective September 1st, 2021, require courts to stop providing or using local forms for a legal remedy once a standardized court form for that same purpose is published.
The heart of the new Rule provides at (d) through (f):
(d) After a standardized court form is published, no court may
(1) maintain, create, or disseminate alternate court forms that seek the same legal remedy;
(2) require, promote, or encourage the use of any other court form that seeks the same legal remedy;
(3) require that a standardized court form be used in a manner that is contrary to its intended purpose of enhancing access to justice; or
(4) require that litigants or lawyers use a modified standardized court form, except as permitted in paragraph (e).
(e) A court may supplement a standardized court order as necessary or appropriate.
(f) A litigant or lawyer may add additional material to a standardized court form as long as the form is not altered.
Note that these problems only apply if one is having the court ENTER the form instead of simply serving an income withholding notice. And the caveat above is that the provisions in this Rule are contradictory in a sense because requiring the use of a deficient form that does not comply with our statutory requirements does not serve the intended purpose of “enhancing access to justice.”
So the good news is that we may now add material to the Federal form (which was what was done with with the form currently being used by HFS).
