Income Execution Issued By Attorney vs By Court

When child support is ordered, the Supreme Court and the Family Court can issue an income execution on the wages of the party charged with payment.  The easy one to discuss is the one issued by the Court.  In a child support proceeding the Judge or Support Magistrate can issue an income execution and direct the payment to be made and collected by the Child Support Enforcement Bureau (CSEB).  Generally, the Supreme Court does not typically due so until there is a final divorce order, although they have the power to do so earlier.  In contrast, the Family Court will routinely issue such an order as soon as the receiving party asks for it so long as there is either a temporary or final order of child support.

The more problematic area is when people are in the middle of a divorce case and there is a child support order issued by the Supreme Court and the case is not yet over.  If the paying person falls behind (there is a definition of what constitutes "arrears") then the attorney can issue an income execution without need for a further court order.  The more difficult part is describing what is the support amount to be collected as the income execution has to be easy for the employer to follow.  So an order that states that $1,000/mos is to be paid for child support is easy.  An order that states pay 50% of child care is not easy as that amount may change every week/month and therefore can't be determined every week by the employer.  An order that states pay the car lease is specific because the monthly amount will be the same and so the employer does not have to calculate anything.

Before the income execution can be sent by the attorney to the employer, it first has to be sent to the employee who has 15 days plus 5 for mailing to file a "mistake of fact" petition.  The mistake of fact petition claims that there is a mistake in the deduction order and therefore if timely objected to prevents the attorney from serving the employer until the Court determines if there is a mistake.  Therefore, in my opinion it is better to keep it simple and get the "low hanging fruit" rather then get tied up in a dispute about amounts that vary.

This blog cannot go into all of the many other details and procedures, but does give a very brief overview.  For more information I recommend that you consult with an experienced matrimonial attorney.