Since 2020, the Office of Child Support Enforcement provided its current 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 Illinois form that melds the State specific requirements with the Federal form. Call me 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
But this form in some cases will be incorrect. The Family Law Section Listserve this issue has been addressed at some length by attorneys including Donald Ray of Rockford. One of the problems with the currently required Illinois form is provides: “If you cannot withhold the full amount of support for any or all orders for this employee/obligor, withhold 65 % of disposable income for all orders.” 65 percent as discussed below is the maximum withholding-not the amount that should be withhold. The form also does not complete where to remit the form.
The addendum to the form is not complete.
It does not include the language:
1. Pursuant to 750 ILCS 28/20(c)(1.1) this Income Withholding for Support is based upon a court order dated .
2. Pursuant to 750 ILCS 28/20(c)(5) the employer withholding fee shall not exceed $ 5.00 per month pursuant to state law 750 ILCS 28/35(a).
That should be at the beginning of the addendum to comply with Illinois law. Illinois law provides that the income withholding must provide:
in bold face type, the size of which equals the largest type on the notice, state the duties of the payor and the fines and penalties for failure to withhold and pay over income and for discharging, disciplining, refusing to hire, or otherwise penalizing the obligor because of the duty to withhold and pay over income under this Section.
The Illinois addendum has some of the payor and the fines and penalties but it neglects others. It is urged that incorporating generally the IWSA by reference is contrary to Illinois law. Another quibble is that the font size is not the largest type on the notice.
Expired Illinois Form.
If you are using an Illinois form that states at the bottom right corner 171-60 (Rev 12/17), 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. So look for a newly updated form.
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 Federal 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.
Withholding Percentage if Insufficient Funds: Blank or Pre-Filled at 65% Creates Problems.
Note that many forms are completed incorrectly by either leaving a blank for the maximum withholding or using the incorrect figure. The appellate court addressed this issue in Burns v. Delta Airlines, Inc., 2021 IL App (2d) 200313. The maximum penalty is 65%—but the penalty is 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:
- The 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.
- Those limits increase 5% –to 55% and 65% –if the arrears are greater than 12 weeks.
In Burns, the appellate court struck down the enforceability of the IWO based on the form being completed in an ambiguous manner. See: Gitlin on Divorce: 10-16[c] “Penalty against Employer for Failure to Pay.”
*Illinois Supreme Court Rules Create 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 this 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 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).
