Once the court orders you to pay spousal or partner support, you must make the monthly spousal or partner support payments starting on the date the judge orders.
In every case ordering spousal or partner support, the court will order that a wage assignment (also called “wage garnishment”) be issued and served. The wage assignment tells your employer to take the support payments out of your wages.
Generally, both parties can agree that payments can be made in some other way and can ask that service of the wage assignment (sending the wage assignment to the employer) be “stayed” (put on hold). In this situation, the parties work out how spousal or partner support will be paid and handle it between them.
In some cases, the local child support agency (LCSA) is involved. The LCSA is only involved if there is also a child support order in your case and 1 of you asked them for help enforcing all support payments (spousal/partner and child support). The LCSA may also be involved if 1 of you gets public assistance for your children (like CalWORKS). If the LCSA is involved, the LCSA has to agree to have the wage assignment “stayed.” If the spouse/partner getting child and spousal or partner support is NOT getting public assistance, the LCSA will probably agree to both of you working the payments out between you.
IMPORTANT!! If the reason you cannot pay your spousal or partner support or are falling behind is you lost your job, your income went down, you went to jail, or some other important change happened, you need to ask the court to change your spousal or partner support amount. DO NOT WAIT. Even if you lose your job, you will be responsible for the full amount of spousal or partner support until a new order is made.
After the court decides the amount of spousal or partner and/or child support, the earnings assignment (also called “wage garnishment”) tells the employer how much to deduct from each paycheck and where to send the payment.
With an earnings assignment, if you are regularly employed, the employer will take support payments directly out of your paycheck. Most support is paid this way, and federal and state laws require it in almost all support cases. It is the employer’s responsibility to withhold the wages if there is an earnings assignment. If you also have a child support earnings assignment in place, child support is deducted first. Spousal or partner support assignments come after child support earnings assignments.
If the local child support agency (LCSA) is involved in your case, they will automatically issue the earnings assignment and begin collecting from your paycheck through your employer.
If the LCSA is not involved in your case, your former spouse or domestic partner, or the court itself, will prepare a earnings assignment and send it to your employer.
If the earnings assignment is for spousal or partner support only, the employer will forward the payments to the supported spouse or partner directly.
When an earnings assignment includes child support, employers must send the payments withheld to the California State Disbursement Unit (SDU). This means that the spousal or partner support (with the child support) payments will probably come to the person getting support from the SDU and not directly from the paying person’s employer (or from the LCSA if they are involved in your case). Getting payments through the SDU does NOT mean that you have a case with the local child support agency.
If you have any questions about the SDU, contact the SDU directly at 1-866-901-3212 or visit the California State Disbursement Unit's website.
In general, you cannot fight an earnings assignment (also called a “wage garnishment”) in court because earnings assignments are allowed by law. However, in some circumstances you can object to the earnings assignment issued to your employer. For instance, if you and your former spouse or partner have an agreement that says there will be no earnings assignment, it may be possible to ask the court to review your case.
Asking that the earnings assignment be quashed (“set aside” or “canceled”)
When an earnings assignment order is sent to your employer, your employer will give you a blank Request for Hearing Regarding Earnings Assignment (Form FL-450). You have 10 days from when you receive this form to ask for a hearing on the earnings assignment. On the form, you will have a chance to explain why you do not want your wages garnished. When you go to court, the judge will make a decision.
The reasons you can ask for the earnings assignment to be canceled are:
Asking for service of the earnings assignment to be “stayed” (“put on hold”)
In some cases, you may be able to get a “stay” of (a “hold” on) the service of the earnings assignment, which means that the earnings assignment would not be sent to your employer and you would be able to pay on your own. Read the Stay of Service of Earnings Assignment Order (Form FL-455) for more information on the reasons you can request a stay.
In general, the reasons you can ask for a “stay” of the service of the earnings assignment are:
To ask the judge to stay the earnings assignment:
1. Fill out the Stay of Service of Earnings Assignment Order (Form FL-455). On this form, mark the box that explains you have an agreement with your former spouse or partner (AND the LCSA if they are involved in your case) for another payment arrangement.
2. You will get a court hearing where you can ask the judge to stop service of the earnings assignment.
3. If the judge agrees with your request, he or she will sign the stay. This stops the earnings assignment from taking effect because it will not be served on your employer.
4. If you get a stay, it is very important you both keep good records of all the payments, in case there are any issues in the future.
See the Stay of Service of Earnings Assignment Order (Form FL-455) for more information on “staying” an earnings assignment.
If you do not follow your arrangement, your former spouse or domestic partner (or the LCSA if they are involved) can ask the court to end the stay on the earnings assignment and ask the employer to start garnishing (withholding) your wages.
When an earnings assignment order is sent to your employer, your employer will give you a blank Request for Hearing Regarding Earnings Assignment (Form FL-450). You have 10 days from when you receive this form to ask for a hearing on the earnings assignment. On the form, you will have a chance to explain why you think the amount of the earnings assignment is wrong. When you go to court, the judge will make a decision.
Remember that this is not the form you use to ask for a change in your spousal or partner support. It is used ONLY because you believe that the amount that will be taken from your paycheck is the wrong amount. Click if you want to change the amount of spousal or partner support you have to pay.
If your employer is taking too much out of your paycheck and you cannot afford it, there may be something you can do. It depends on what amounts are being taken from your check.
If your employer is just taking out the monthly spousal or partner support that the court ordered (without anything added to it), then there is probably nothing you can do except go to court to ask for your spousal or partner support to be changed. BUT if you just had a court hearing and that is the order the judge made and nothing has changed since the hearing, you probably will not succeed since the order shows the amount the judge ruled you have to pay.
If your employer is taking out an amount much higher than what your monthly spousal or partner support order says, you probably have a past due spousal or partner support balance. In this case, there may be something you can do. The court (and the LCSA if they are involved in your case) has a little more flexibility in how much money you have to pay every month to start paying off your past due support.
First, if they are involved, contact the local child support agency (LCSA) to see if you can make arrangements to lower your payments. If that does not work, you can file court forms to ask a judge to set a payment that you can afford. Remember, this payment is for the back spousal or partner support and probably child support.
If the LCSA is not involved in your case, you can file a request in court to set a payment amount that you can afford. Talk to your family law facilitator to learn what court forms would be best in your case.
If you decide to do it on your own, the procedures may vary from court to court, but in general, you will have to follow these steps:
1. Fill out your court forms
On your Form FL-300, check the box at item 8 (“Other Relief”) and write in “Set monthly liquidation payment of $ (write in a reasonable amount).” The “liquidation payment” is the payment that goes toward your back spousal or partner support.
It is very important that you fill out Form FL-150 very carefully and completely. That form will show the court why you cannot afford the high rate of payments the earnings assignment is asking for to pay off your balance.
2. Have your forms reviewed
Ask your court’s family law facilitator to review your paperwork. The facilitator can make sure you filled it out properly before you move ahead with your case.
3. Make at least 2 copies of all your forms
One copy will be for you; another copy will be for your former spouse or domestic partner. The original is for the court. If the LCSA is involved in your case, make 3 copies.
4. File your forms with the court clerk
Turn in your forms to the court clerk. The clerk will keep the original and return the copies to you, stamped “Filed.” You may have to pay a filing fee. If you cannot afford the fee, you can ask for a fee waiver.
5. Get your court date
The clerk will give you a court date and write it on your Form FL-300.
6. Serve your papers on your former spouse/partner (and the LCSA, if they are involved)
Serve your spouse or partner (and the LCSA, if they are involved) with a copy of your papers and a blank Responsive Declaration to Request for Order (Form FL-320) and blank Income and Expense Declaration (Form FL-150) before your court date. Remember, someone else — NOT you — must serve the papers.
Get more information about “service.” Look at the front of Form FL-300 to see if the court ordered you to serve any other documents.7. File your proof of service
8. Go to your court hearing
Go to your court hearing and take a copy of all your papers and your proofs of service. Also take proof of your income, like recent pay stubs and/or tax returns.
Read Going to Court to find out how to prepare for your court hearing.
At your hearing, the judge will determine how much you will have to pay toward your back spousal or partner support. Remember, this amount is in addition to the regular monthly spousal or partner support payments that you were already ordered to pay.