Colorado Revised Statutes Title 14 Domestic Matters § 14-14-1115 Income assignments for child support or maintenance

(1) Legislative declaration.  The general assembly hereby finds and declares that, for the good of the children of Colorado and to promote family self-sufficiency, there is a need to strengthen Colorado's child support enforcement laws and to simplify, streamline, and clarify the existing laws relating to wage assignments previously provided for in section 14-14-107 and immediate deductions for family support obligations previously provided for in section 14-14-111 .  In support of this effort, the general assembly hereby adopts the term “income assignment” to be used to provide consistency and standardization of the process for collecting child support and maintenance.

(2) Notice requirements for income assignments.  Notice of income assignments shall be given in accordance with the following provisions based upon the date on which the order sought to be enforced was entered:

(a) Orders entered before July 10, 1987.  (I) For orders entered before July 10, 1987, that do not include an order for income assignment as described in paragraph (a) of subsection (3) of this section or an order for immediate deductions for family support obligations as described in former section 14-14-111, as it existed prior to July 1, 1996, a notice of pending income assignment shall be sent by certified mail to the last-known address of the obligor, or such notice shall be personally served upon the obligor prior to the activation of an income assignment;  except that such notice shall not be required if the obligor was given such notice prior to July 10, 1987, and such notice was in substantial compliance with the requirements of this section.  The notice shall be given by the obligee, the obligee's representative, or the delegate child support enforcement unit.

(II) The notice of pending income assignment shall include the following information:

(A) That an income assignment may be activated immediately or at any other time at the request of the obligor, by agreement of the parties, or at the request of an obligee who is receiving support enforcement services from a delegate child support enforcement unit pursuant to section 26-13-106, C.R.S ., in accordance with state procedures.  Such state procedures require that the obligee request an income assignment in writing and that, after the delegate child support enforcement unit receives the request, it shall review the case to determine if it meets the criteria for requiring income assignment, which criteria are that the obligor is not meeting the terms of a written agreement for an alternative arrangement, or that the reason for the original good cause determination no longer exists, or that the obligor is currently paying child support but has threatened to stop and the obligee documents and substantiates that there has been a change in the obligor's circumstances that will lead the obligor to stop paying child support.  If none of the circumstances set forth in this sub-subparagraph (A) exists, then the income assignment shall remain pending unless the obligor fails to comply with the support order by not making a full payment on its due date.

(B) That the activation of an income assignment is the notification to the obligor's employer or employers, trustee, or other payor of funds to withhold income for payment of the support obligation and arrears, if any;

(C) That, if any arrears accrue or already have accrued, an additional payment on the arrears shall be added to the income assignment pursuant to subparagraph (V) of paragraph (b) of subsection (3) of this section;

(D) That the obligor has a right to object to the activation of the income assignment raising the defenses that are available pursuant to sub-subparagraph (B) of subparagraph (VII) of paragraph (b) of subsection (3) of this section;

(E) That the obligor shall notify the family support registry, if payments are required to be made through the registry, in writing, of any change of address or employment within ten days after the change.

(b) Orders entered on or after July 10, 1987, and before January 1, 1990.  For orders entered on or after July 10, 1987, and before January 1, 1990, no notice of pending income assignment as described in paragraph (a) of this subsection (2) shall be required.

(c) Orders entered in Title IV-D cases on or after January 1, 1990, and before January 1, 1994.  For orders entered on or after January 1, 1990, and before January 1, 1994, in cases in which the custodian of the child is receiving support enforcement services from a delegate child support enforcement unit pursuant to section 26-13-106, C.R.S ., no notice of pending income assignment as described in paragraph (a) of this subsection (2) shall be required.

(d) Orders entered in non-Title IV-D cases on or after July 10, 1987, and before January 1, 1994.  For orders entered on or after July 10, 1987, and before January 1, 1994, in cases in which the custodian of the child is not receiving support enforcement services from a delegate child support enforcement unit pursuant to section 26-13-106, C.R.S ., no notice of pending income assignment as described in paragraph (a) of this subsection (2) shall be required.

(e) Orders entered on or after January 1, 1994, and before July 1, 1996.  For orders entered on or after January 1, 1994, and before July 1, 1996, no notice of pending income assignment as described in paragraph (a) of this subsection (2) shall be required.

(f) Orders entered on or after July 1, 1996.  (I) Whenever an obligation for child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt is initially determined, whether temporary or permanent or whether modified, the amount of child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt shall be ordered by the court or delegate child support enforcement unit to be activated immediately as an income assignment subject to section 13-54-104 (3), C.R.S ., from the income, as defined in section 14-10-115 (3) , that is due or is to become due in the future from the obligor's employer, employers, or successor employers or other payor of funds, regardless of the source, of the person obligated to pay the child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt.

(II) Any order for support shall include the following, if available:

(A) The name, date of birth, and sex of each child for whom the support is ordered;

(B) The obligee's name, social security number, residential and mailing addresses, and date of birth;

(C) The total amount of current support to be paid monthly in each category of support;

(D) The date of commencement of the order and the date or dates of the month that the payments are due;

(E) The total amount of arrears that is due, if any, in each category of support as of the date of the order;  and

(F) The obligor's name, social security number, residential and mailing addresses, and date of birth.

(3) Activation of income assignment.  Income assignments shall be activated in accordance with the following provisions:

(a) Immediate activation of income assignments.  (I) Upon entry of an order for child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt during the time periods described in paragraph (c), (e), or (f) of subsection (2) of this section, the obligee, the obligee's representative, or the delegate child support enforcement unit shall cause a notice of income assignment to be served immediately as described in subsection (4) of this section.

(II) Exceptions to immediate activation of income assignments.  Income shall not be subject to immediate activation of an income assignment under this paragraph (a) in any case in which:

(A) One of the parties demonstrates, and the court or the delegate child support enforcement unit finds in writing, that there is good cause not to require immediate activation of an income assignment.  For the purposes of this sub-subparagraph (A), “good cause” means the following:  There is a written determination and explanation by the court or delegate child support enforcement unit stating why implementing immediate activation of an income assignment would not be in the best interests of the child;  and the obligor has signed a written agreement to keep the delegate child support enforcement unit, the obligee, or the obligee's representative informed of the obligor's current employer and information on any health insurance coverage to which the obligor has access;  and proof is provided that the obligor made timely payments without the necessity of income assignment in previously ordered child support obligations.

(B) A written agreement is reached between both parties that provides for an alternative arrangement.  For purposes of this sub-subparagraph (B), the delegate child support enforcement unit shall be considered a party in all cases in which the custodian of a child is receiving support enforcement services from a delegate child support enforcement unit pursuant to section 26-13-106(1), C.R.S ., and as such is required to consent to the alternative written agreement.  In all cases in which the custodian of a child is receiving support enforcement services from a delegate child support enforcement unit pursuant to section 26-13-106(2), C.R.S ., the obligee or the obligee's representative shall provide the delegate child support enforcement unit with notice of any agreement reached between the parties pursuant to this sub-subparagraph (B).

(b)(I) Activation of an income assignment following notice.  An income assignment based on an order entered during the time periods described in paragraph (a), (b), or (d) of subsection (2) of this section shall not be activated unless:

(A) The obligor requests that the income assignment be activated;  or

(B) The parties agree at the time of the entry or modification of a support order, or at any other time, that the income assignment is to be activated;  or

(C) The obligee files an advance notice of activation with any court having jurisdiction to enforce the support order because a payment was due under a support order and the obligor has failed to make a payment in full as ordered.

(II) Notice of activation.  When an income assignment is activated pursuant to sub-subparagraph (C) of subparagraph (I) of this paragraph (b), a copy of the advance notice of activation and a form for the obligor to object to the activation listing the available defenses shall be mailed by the obligee or the obligee's representative to the obligor's last-known address.  The notice of activation shall contain the following information:

(A) The court that issued the support order;

(B) The case number;

(C) The date of the support order;

(D) The facts establishing that a full support payment was not made on or before it became due;

(E) The amount of overdue support owed;

(F) The amount of income to be withheld for current support and the amount to be withheld for arrears per month;

(G) A statement that, if section 13-54-104(3), C.R.S ., applies, the employer may not withhold more than the limitations set by said section;

(H) The name and address of the obligor's most recently known employer and a statement that the obligor is required to inform the court or the family support registry, if payments are to be made through the registry, of any new employment;

(I) A statement of the obligor's right to object to the activation of the income assignment within fourteen days after the date the advance notice of activation is sent to the obligor and the procedures available for such objection;

(J) The available defenses to the activation;

(K) A statement that failure to object to the activation of an income assignment within fourteen days after the date the advance notice of activation was sent to the obligor will result in the activation of the income assignment pursuant to subsection (4) of this section;

(L) A statement of the procedures the court will follow when an objection is filed by the obligor;

(M) A statement that, if the court denies the objection of the obligor, the income assignment shall be activated pursuant to subsection (4) of this section;

(N) A statement that the income assignment is a continuing assignment;  and

(O) A statement that, if arrears have accrued, an additional monthly payment shall be set pursuant to subparagraph (V) of this paragraph (b) and that this payment may be modified if additional arrears accrue.

(III) Affidavit requirements.  The party activating an income assignment based on an order entered during the time periods described in paragraph (a), (b), or (d) of subsection (2) of this section shall prepare an affidavit of arrears, which shall state the type and amount of support ordered per month and the date upon which the payment was due and, if the payments were to be made into the court registry or the family support registry, state that the full payment was not received by the registry on or before the due date or, if the payments were to be made to the obligee directly, state that the obligee did not receive the full payment on or before the due date, the date and amount of any modifications of the order, the period or periods of time the arrears accrued, the total amount of support that should have been paid, the total amount actually paid, and the total arrears, plus interest, due.  If the income assignment is being activated pursuant to sub-subparagraph (A) or (B) of subparagraph (I) of this paragraph (b), the affidavit shall be filed with the court at the time of activation.  If payments were ordered to be made through the family support registry, a copy of the payment record maintained by the family support registry shall be sufficient proof of payments made, and no affidavit shall be required.  If the income assignment is being activated pursuant to sub-subparagraph (C) of subparagraph (I) of this paragraph (b), the affidavit shall be filed with the advance notice of activation.

(IV) Agreement to activate.  When an income assignment is activated pursuant to sub-subparagraph (A) or (B) of subparagraph (I) of this paragraph (b) and arrears are owed, as verified by the affidavit of arrears, the parties may agree to an amount of payment on the arrears, or the court may determine an appropriate amount for payment.

(V) Arrears.  When an income assignment is activated pursuant to sub-subparagraph (C) of subparagraph (I) of this paragraph (b) and arrears are owed, as verified by the affidavit of arrears, the income assignment shall include a payment on the arrears in the amount of one-twenty-fourth of the total amount due up to the date of the activation of the income assignment.  The payment on the arrears shall remain the same until the arrears, plus interest, are paid unless the parties subsequently agree to a larger or smaller arrears payment amount or further arrears accrue.  The total arrears due, plus interest, may be updated periodically, and the amount of payment may be revised periodically, as appropriate.

(VI) A payment on arrears, plus interest, for support, if any, shall be included in an activated income assignment;  however, the combined payment on current support and arrears is subject to section 13-54-104(3), C.R.S .

(VII) Objections to income assignment.  (A) The obligor may file with the court a written objection to the activation of an income assignment pursuant to sub-subparagraph (C) of subparagraph (I) of this paragraph (b) within fourteen days after the advance notice of activation is sent to the obligor pursuant to subparagraph (II) of this paragraph (b) unless the obligor alleges that the notice was not received, in which case an objection may be filed no later than fourteen days after actual notice.  The obligor shall mail a copy of the written objection to the obligee or the obligee's representative.

(B) The objection shall be limited to the defense that there is a mistake of fact such as an error in the identity of the obligor or in the amount of the support.

(C) If an objection is filed by the obligor, a hearing shall be set and held by the court within forty-two days after the date the advance notice of activation was sent to the obligor pursuant to subparagraph (II) of this paragraph (b).  The court shall deny the objection without hearing if a defense in sub-subparagraph (B) of this subparagraph (VII) is not alleged.

(D) At a hearing on an objection, the sole issue before the court is whether there was a mistake of fact as specified in sub-subparagraph (B) of this subparagraph (VII).

(E) At a hearing on an objection, reasonable attorney fees and costs may be awarded to the prevailing party.

(F) If an objection is based on the amount of arrears, the income assignment may be activated and enforced as to current support obligations, and the activation of the income assignment as to arrears shall be stayed pending the outcome of a hearing on such objection.

(4) Notice to withhold income for support.  Fourteen days after the date the advance notice of activation is mailed to the obligor for income assignments on orders entered during the time periods described in paragraphs (a), (b), and (d) of subsection (2) of this section or immediately for income assignments on orders entered during the time periods described in paragraphs (c), (e), and (f) of subsection (2) of this section, an income assignment may be activated by the obligee, the obligee's representative, or the delegate child support enforcement unit by causing a notice to withhold income for support to be served upon the employer, trustee, or other payor of funds, by first-class mail or by electronic service, if such employer, trustee, or other payor of funds mutually agrees with the state child support enforcement agency to receive such income assignments electronically.  Receipt of notice by the employer, trustee, or other payor of funds confers jurisdiction of the court over the employer, trustee, or other payor of funds.  Income assignments activated for orders entered during the time periods described in paragraphs (c), (e), and (f) of subsection (2) of this section shall be paid through the family support registry pursuant to section 26-13-114, C.R.S .  In circumstances in which the source of income to the obligor is unemployment compensation benefits and the custodian of the child is receiving support enforcement services pursuant to section 26-13-106, C.R.S ., no notice to withhold income for support shall be required.  In such cases, the state child support enforcement agency shall electronically intercept the unemployment compensation benefits through an automated interface with the department of labor and employment.  In all other cases, the notice to withhold income for support shall contain the following information and, except in cases in which the obligee is receiving child support enforcement services pursuant to section 26-13-106, C.R.S ., shall have a certified copy of the support order attached thereto:

(a) The name and social security number of the obligor;

(b) A statement that withholding must begin no later than the first pay period that begins at least fourteen working days after the date on the notice to withhold income for support;

(c) Instructions concerning withholding the deductions, including:

(I) The amount to be withheld for current support and current maintenance when included in the child support order, the amount to be withheld for past due support, the amount to be withheld for past due maintenance when included in the child support order, the amount to be withheld for child support debt, the amount to be withheld for medical support, the amount to be withheld for current maintenance, the amount to be withheld for past due maintenance per month, and the amount to be withheld for processing fees, if any.  In the event that the pay periods of the employer are more frequent, the employer shall withhold per pay period an appropriate percentage of the monthly amount due so that the total withheld during the month will total the monthly amount due.

(II) A statement that the employer, trustee, or other payor of funds may deduct a fee to defray the cost of withholding and that such employer, trustee, or other payor of funds shall refer to the laws governing the work state of the employee for the allowable amount of such fee;

(III) That, if section 13-54-104(3), C.R.S ., applies, the employer, trustee, or other payor of funds may not withhold more than the limitations set by said section;

(d) Instructions about disbursing the withheld amounts, including the requirements that each disbursement:

(I) Shall be forwarded within seven working days after the date of each deduction and withholding would have been paid or credited to the employee;

(II) Shall be forwarded to the address indicated on the notice;

(III) Shall be identified by the case number, the name and social security number of each obligor, the date the deduction was made, the amount of the payment, and the family support registry account number for cases ordered to be paid through the family support registry;  and

(IV) May be combined with other disbursements in a single payment to the family support registry, if required to be sent to the registry, if the individual amount of each disbursement is identified as required by subparagraph (III) of this paragraph (d);

(e) A statement specifying whether or not the obligor is required to provide health insurance for the children who are the subject of the order;

(h) A statement that, if the employer, trustee, or other payor of funds fails to withhold income as the notice to withhold income for support directs, the employer, trustee, or other payor of funds shall be liable for both the accumulated amount that should have been withheld from the obligor's income and any other penalties set by state law;

(i) A statement that the employer, trustee, or other payor of funds shall be subject to a fine determined under state law for discharging an obligor from employment, refusing to employ, or taking disciplinary action against an obligor because of a notice to withhold income for support;

(j) A statement that the employer shall notify the family support registry, in writing, if payments are required to be made through the registry promptly after the obligor terminates employment and shall provide the family support registry, in writing, with the obligor's name, date of separation, case identifier which shall be the family support registry account number, last-known home address, and the name and address of the obligor's new employer, if known;

(j.5) A statement that withholding under the notice to withhold income for support has priority over any other legal process under state law against the same income, that federal tax levies in effect before receipt of this notice to withhold income for support have priority, and that the requesting agency should be contacted if there are federal tax levies in effect;

(k) A statement that as long as the obligor is employed by the employer, the income assignment shall not be terminated or modified, except upon written notice by the obligee, the obligee's representative, the delegate child support enforcement unit, or the court;

(k.5) A statement that the employer, trustee, or other payor of funds may be required to report and withhold amounts from lump sum payments such as bonuses, commissions, or severance pay;

(l.5) A statement that Colorado employers, trustees, or other payors of funds must comply with this section;

(m) A statement that, if the designated field on the notice to withhold income for support is checked, the employer, trustee, or other payor of funds is required to provide a copy of the notice to withhold income for support to the obligor;

(n) A statement that a fraudulent submission of a notice to withhold income for support shall subject the person submitting the notice to an employer, trustee, or other payor of funds to a fine of not less than one thousand dollars and court costs and attorney fees.

(4.5) When a Colorado employer receives an income assignment, or its equivalent, issued by another state, the employer shall apply the income assignment law of the obligor's principal state of employment.  The obligor's principal state of employment shall be presumed to be Colorado unless there is a specific employment contract to the contrary.

(5) When activated, an income assignment shall be a continuing income assignment and shall remain in effect and shall be binding upon any employer, trustee, or other payor of funds upon whom it is served until further notice from the obligee, the obligee's representative, the delegate child support enforcement unit, or the court.

(6) Priority.  (a) A notice of income assignment for support shall have priority over any garnishment, attachment, or lien.

(b) If there is more than one income assignment for support for the same obligor, the total amount withheld, which is subject to the limits specified in section 13-54-104(3), C.R.S ., shall be distributed in accordance with the priorities set forth in this paragraph (b):

(I)(A) First priority shall be given to income assignments for orders for current monthly child support obligations and maintenance when included in the child support order.

(B) If the amount withheld is sufficient to pay the current monthly support and maintenance for all orders, the employer or other payor of funds shall distribute the amount to all orders and proceed to the second priority to distribute any remaining withholding.  If the amount withheld is not sufficient to pay the current monthly support and maintenance in all orders, the employer shall add the current monthly support and maintenance in all orders for a total and then divide the amount of current monthly support and maintenance in each order by the total to determine the percent of the total for each order.  The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.

(II)(A) Second priority shall be given to income assignments for all orders for medical support when there is a specific amount ordered for medical support.

(B) If the amount withheld is sufficient to pay the medical support for all orders, the employer shall distribute the amount to all orders and proceed to the third priority to distribute any remaining withholding.  If the amount withheld is not sufficient to pay the medical support in all orders, the employer shall add the medical support in all orders for a total and then divide the amount of medical support in each order by the total to determine the percent of the total for each order.  The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.

(III)(A) Third priority shall be given to income assignments for child support debt and support arrears, including medical support arrears.

(B) If the amount withheld is sufficient to pay the child support debt and support arrears for all orders, the employer shall distribute the amount to all orders and proceed to the fourth priority to distribute any remaining withholding.  If the amount withheld is not sufficient to pay the child support debt and support arrears in all orders, the employer shall add the child support debt and support arrears in all orders for a total and then divide the amount of child support debt and support arrears in each order by the total to determine the percent of the total for each order.  The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.

(IV)(A) Fourth priority shall be given to income assignments for orders for maintenance only.

(B) If the amount withheld is sufficient to pay the maintenance only for all orders, the employer shall distribute the amount to all orders.  If the amount withheld is not sufficient to pay the maintenance only in all orders, the employer shall add the maintenance only in all orders for a total and then divide the amount of maintenance only in each order by the total to determine the percent of the total for each order.  The percent for each order derived from such calculation shall be multiplied by the total amount withheld to determine what proportionate share of the amount withheld shall be paid for each order.

(7) No employer, trustee, or other payor of funds who complies with a notice of income assignment issued pursuant to this section and as provided in subsection (8) of this section shall be liable to the obligor for wrongful withholding.

(8) An employer, trustee, or other payor of funds subject to this section who:

(a) Fails to abide by the terms enumerated in the notice of income assignment may be held in contempt of court;

(b) Wrongfully fails to withhold income in accordance with the provisions of this section shall be liable for both the accumulated amount the employer, trustee, or other payor of funds should have withheld from the obligor's income and any other penalties set by state law;

(c) Discharges, refuses to hire, or takes disciplinary action against an employee because of the entry or service of an income assignment pursuant to this section may be held in contempt of court or be subject to a fine.

(9) If an employer discharges an employee in violation of the provisions of this section, the employee may, within ninety-one days, bring a civil action for the recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee.  Damages recoverable shall be lost wages not to exceed six weeks, costs, and reasonable attorney fees.

(10)(a) The obligee, the obligee's representative, the delegate child support enforcement unit, or the court shall promptly notify the employer, trustee, or other payor of funds, in writing, when an income assignment is modified or terminated.

(b) An income assignment shall be modified when:

(I) The support order is modified by the court;

(II) The arrears payment is modified by agreement between the parties pursuant to subparagraph (V) of paragraph (b) of subsection (3) of this section;  or

(III) The arrears payment is modified when updated periodically pursuant to subparagraph (V) of paragraph (b) of subsection (3) of this section.

(c) An income assignment shall be terminated when all current maintenance when included in the child support order, past due support, past due maintenance when included in the child support order, child support debt, medical support, current monthly child support, current maintenance, past due maintenance, and processing fees, if any, owed under the support order are paid in full.

(11) Disbursements received from the employer, trustee, or other payor of funds by a delegate child support enforcement unit shall be promptly distributed.

(12) The clerk of the court shall provide, upon request, any information required by the parties about any support order or any order affecting an order for support, including judgments and registered orders.

(13) The department of human services is hereby designated as the income withholding agency as required by the federal “Social Security Act”, as amended.  1

(14) This section applies to any action brought under this article or article 5, 6, or 10 of this title or under article 4 or 6 of title 19, C.R.S., or under article 13.5 of title 26, C.R.S.

(15) Nothing in this section shall affect the availability of any other method for collecting child support, maintenance, child support when combined with maintenance, retroactive support, medical support, child support arrears, or child support debt.

(16) Income assignments under this section shall be issued by a delegate child support enforcement unit under the provisions of the “Colorado Administrative Procedure Act for the Establishment and Enforcement of Child Support”, created in article 13.5 of title 26, C.R.S.

(16.3) The employer, trustee, or other payor of funds shall include with the first disbursement an indication of whether dependent health insurance coverage is available to the obligor and whether the obligor has elected to enroll the dependents who are the subject of the order in such coverage and that such information shall be included in a disbursement at least annually thereafter or at the next disbursement in the event of any change in the status of health insurance availability or coverage.

(16.5) The employer shall not be required to collect, possess, or control the obligor's tips, and any such tips shall not be owed by an employer to an obligor.

(16.7) The employer, trustee, or other payor of funds may extract a processing fee of up to five dollars per month from the remainder of the obligor's income after the deduction and withholding.

(17) For purposes of this section, unless the context otherwise requires, “income” means wages as defined in section 14-14-102(9) .

(19) A person submitting a fraudulent notice to withhold income for support to an employer, trustee, or other payor of funds shall be subject to a fine of not less than one thousand dollars and court costs and attorney fees.

1 42 U.S.C.A. § 301 et seq.

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