nd.gov - The Official Portal for North Dakota State Government
North Dakota: Legendary. Follow the trail of legends
NDDHS logo ND Child Support Enforcement image

Child Support Division

Employers: Income Withholding

North Dakota Century Code

North Dakota state law regarding income withholding

14-09-09.3. Child support - Duties and liabilities of income payer under income withholding order.

  1. Any failure of an income payer to comply with this section or section 14-09-09.16 may be sanctioned as a contempt of court. The court shall first afford such income payer a reasonable opportunity to purge itself of the contempt.
  2. Any income payer who fails or refuses to withhold or deliver income pursuant to an income withholding order, when such income payer has had in its possession such income, is personally liable for the amount of such income which the income payer failed or refused to withhold or deliver, together with costs, interest, and reasonable attorney's fees. If an income payer fails or refuses to withhold or deliver income for more than fourteen business days after the date an obligor is paid, the court shall award damages in an amount equal to two hundred dollars or actual damages caused by the violation, whichever is greater, in addition to the amount of income that should have been withheld or delivered, costs, interest, late fees, and reasonable attorney's fees. Any damages awarded under this subsection must be allocated by the court between each affected obligor and obligee, or made payable on behalf of an obligor to the state disbursement unit for distribution under section 14-09-25. Each remedy authorized in this subsection is a remedial sanction as defined in section 27-10-01.1.
  3. Any employer who refuses to employ, dismisses, demotes, disciplines, or in any way penalizes an obligor on account of any proceeding to collect child support, on account of any order or orders entered by the court in such proceeding, on account of the employer's compliance with such order or orders, or on account of an income withholding order, is liable to the obligor for all damages, together with costs, interest thereon, and reasonable attorney's fees resulting from the employer's action. The employer may be required to make full restitution to the aggrieved obligor, including reinstatements and backpay.
  4. An income payer may be enjoined by a court of competent jurisdiction from continuing any action in violation of section 14-09-09.16.
  5. Any contempt proceeding against an income payer under this section must be commenced within one year after the income payer's act or failure to act upon which such proceeding is based.
  6. Compliance by an income payer with an income withholding order operates as a discharge of the income payer's liability to the obligor as to that portion of the obligor's income so affected.
  7. In considering an income withholding order issued by a court or administrative tribunal in a state other than the state of the obligor's principal place of employment, the income payer shall apply the law of the state of the obligor's principal place of employment in determining any withholding terms and conditions not specified in the income withholding order or in section 14-12.2-33.1.
  8. An employer who complies with an income withholding order that is regular on its face is not subject to civil liability to any individual or agency for conduct in compliance with the order.
  9. An income payer who fails to withhold or deliver income for more than seven business days after the date one or more obligors are paid may be charged a late fee equal to twenty-five dollars per obligor for each additional business day the payment is delinquent or seventy-five dollars for each additional business day the payment is delinquent, whichever is greater. A late fee charged under this subsection is payable fifteen days after service on the employer, by first-class mail, of notice of the imposition of the late fee. Failure to pay a late fee under this subsection may be sanctioned as a contempt of court. Any late fee assessed by the child support agency under this subsection must be paid to the state disbursement unit for distribution under section 14-09-25 and any remaining balance must be paid to the obligor. If an income payer has failed to withhold or deliver income for more than one obligor, any late fees collected under this section must be divided equally among all affected obligors.
  10. If an income payer makes an error in the remittal information the income payer provides to the state disbursement unit, the income payer has not complied with this section and is responsible for the error, but has a cause of action for reimbursement against any person that receives funds from the disbursement unit as a result of the error and refuses to return the funds upon request.

14-09-09.10. Definitions. For the purposes of this chapter, unless the context or subject matter otherwise requires:

  1. "Arrears registry" means the registry maintained under section 50-09-02.7.
  2. "Business day" means every day that is not a Saturday or legal holiday.
  3. "Child support" means payments for the support of children and combined payments for the support of children and spouses or former spouses, however denominated, if the payment is required by the order of a court or other governmental agency having authority to issue such orders.
  4. "Child support agency" means the county social service board, any combination of county social service boards, or any entity created by a county social service board or any combination of county social service boards, in execution of the county social service board's duties under subsection 5 of section 50-09-03.
  5. "Delinquent" means a situation which occurs on the first working day after the day upon which a child support payment was identified as due and unpaid, and the total amount of unpaid child support is at least equal to the amount of child support payable in one month.
  6. "Disposable income" means gross income less deductions required by law for taxes and social security.
  7. "Employer" means income payer.
  8. "Health insurance" includes fees for service, health maintenance organization, preferred provider organization, comprehensive health association plan, accident and health insurance policies, group health plans as defined in section 607(1) of the Employee Retirement Income Security Act of 1974 [Pub. L. 99-272; 100 Stat. 281; 29 U.S.C. 1167(1)], and other types of coverage under which major medical coverage may be provided in a policy, plan, or contract which may legally be sold or provided in this state.
  9. "Income" means any form of payment, regardless of source, owed to an obligor, including any earned, unearned, taxable or nontaxable income, workforce safety and insurance benefits, disability benefits, unemployment compensation benefits, annuity and retirement benefits, but excluding public assistance benefits administered under state law.
  10. "Income payer" means any person, partnership, firm, corporation, limited liability company, association, political subdivision, or department or agency of the state or federal government owing income to an obligor and includes an obligor if the obligor is self-employed.
  11. "Monthly support obligation" means an amount of child support ordered by a court or administrative tribunal in a proceeding to establish or modify a child support obligation, including amounts that are deferred for payment at a later date. The term is defined without regard to any amount of child support that an obligor is required to pay to avoid being held in contempt of court. If an amount of past-due support has been ordered as a lump sum rather than determined on a monthly basis, "monthly support obligation" means one hundred sixty-eight dollars.
  12. "Obligee" means a person including a state or political subdivision to whom a duty of support is owed.
  13. "Obligor" means any person owing a duty of support.
  14. "Past-due support" means child support that is not paid by the earlier of:
    1. The date a court order or an order of an administrative process established under state law requires payment to be made; or
    2. The last day of the month or other period the payment was intended to over.
  15. Payday" means the day upon which the income payer pays or otherwise credits the obligor.

14--09-09.11. Income withholding order. When a judgment or order requires the payment of child support, it may be enforced by an income withholding order, as provided in this chapter, in addition to any other remedies provided by law.

14-09-09.12. Provision of notice of impact of income withholding law to obligors. Each judgment or order issued by a court in this state which includes an order for support of minor children, but which does not require immediate income withholding, must include a statement that a delinquency in payment of the support due or the approved request of the obligee will result in an income withholding order being issued in accordance with this chapter.>

14-09-09.13. Procedure - Notice to obligor. If immediate income withholding under section 14-09-09.24 has not been implemented and an obligor is delinquent, if an obligee's request for income withholding is approved, or if a court changes its finding that there is good cause not to require immediate income withholding, the child support agency shall serve the notice required under this section upon the obligor whenever issuing an income withholding order. The notice must state:

  1. That the obligor is delinquent in the payment of child support, that a request for withholding has been made by the obligee and approved by a child support agency, or that there is no longer good cause not to require immediate income withholding, as the case may be, and the obligor is therefore subject to an income withholding order on all income.
  2. The amount of child support owed and the amount of arrearage, if any.
  3. The total amount of money that will be withheld by the income payer from the obligor's income in each month as determined under section 14 09 09.30.
  4. That the income payer may withhold an additional sum of three dollars to cover the income payer's expenses.
  5. That the income withholding order has been issued without further order of the court.
  6. That the obligor may contest the issuance of the income withholding order by filing a written request for hearing within ten days of the date of the notice made under this section.
  7. That if the obligor contests the income withholding order pursuant to section 14 09 09.14, a hearing will be held and the court will determine and issue an order consistent with the requirements of section 14 09 09.14.
  8. That the income withholding order applies to any current or subsequent income payer or period of employment.

14-09-09.14. Hearing upon obligor's request.

  1. If the obligor files a request for a hearing within ten days of the date of the notice made pursuant to section 14-09-09.13, the court shall hold a hearing within ten working days after the date of the request.
    1. The court may order that the income withholding order be withdrawn if at the hearing the obligor establishes:
      1. In a case where withholding would be based on an alleged delinquency, that there has been a mistake in the identity of the obligor; or
      2. In a case where an approved request for withholding has been made by the obligee, that the approval of the request constituted an abuse of discretion.
    2. If at the hearing the obligor establishes that there is an overstatement in the amount of support stated to be owed by the obligor, the court may amend the amount to be withheld.
    3. In the absence of a finding of a mistake of fact in a case where withholding would be based on an alleged delinquency, or in the absence of an abuse of discretion in the approval of an obligee's request for withholding, the court shall confirm the income withholding order. Payment of past-due support after issuance of notice under section 14 09 09.13 may not be the basis for an order that the income withholding order be withdrawn.
  2. An obligor is not precluded, by subsection 1, from seeking appropriate relief from a judgment or order affecting a child support obligation nor is the court precluded from granting such relief. An obligor's request for such relief, whether made by motion under rule 60(b) of the North Dakota Rules of Civil Procedure or otherwise, may not be considered during the hearing described in subsection 1.

14-09-09.15. Form - Effect of income withholding order. The income withholding order must be issued in the name of the state of North Dakota in the standard format for notice of the order prescribed by the secretary of the United States department of health and human services under authority of 42 U.S.C. 666(b)(6)(A)(ii), contain only the information necessary for the income payer to comply with the income withholding order, and be directed to all current and subsequent income payers of the obligor. The income withholding order is binding on the income payer until further notice by the child support agency and applies to all current and subsequent periods in which income is owed the obligor by the income payer. The income withholding order has priority over any other legal process against the same income.

14-09-09.16. Service of income withholding order on income payer.

  1. The child support agency shall serve the income withholding order on the income payer by first-class mail or in any other manner agreed to by the income payer, and upon the obligor by first-class mail to the obligor's last-known address.
  2. If the obligor is subject to immediate income withholding under section 14-09-09.24, an income withholding order must be served on any known income payer within two business days of the date of receipt of information necessary to carry out income withholding. Subject to the provisions of section 14-09-09.17, if service of an income withholding order has been or may have been properly made under this section, an income withholding order must be served on any subsequently identified income payer within two business days of the date of receipt of information necessary to carry out income withholding.
  3. An income withholding order may also be issued and served at the request of the obligor.
  4. The income payer shall withhold a stated amount, determined under section 14 09 09.30, from the obligor's income at the time the obligor is paid for transmittal to the child support agency within seven business days of the date the obligor is paid, together with a report of the date upon which the amount was withheld from the obligor's income.
  5. The income payer may also withhold and retain an additional sum of three dollars per month from the obligor's income to cover expenses involved in transmitting payment.
  6. The amount to be withheld, including amounts to cover expenses involved in transmitting payment, may not exceed fifty percent of the obligor's disposable income from this income payer, but a payment of an amount less than the ordered amount must be accompanied by a written calculation disclosing any of the obligor's income and disposable income which is payable by the income payer.
  7. The income payer shall begin withholding no later than the first payday that occurs after service of the income withholding order.
  8. If the income payer is served with more than one income withholding order issued under this chapter on a single obligor and the combined total amount to be paid under the income withholding orders exceeds fifty percent of the obligor's disposable income, the income payer shall withhold the maximum amount permitted and transmit to the child support agency that portion thereof which the obligee's claim bears to the combined total of all claims.
  9. The income payer shall notify the child support agency in writing of the termination of a duty to pay income to the obligor within seven business days of the termination. The notification must include the name and address of the obligor's subsequent income payer, if known.
  10. If the income payer is subject to income withholding orders for more than one obligor, the income payer may combine in a single payment the amounts for all obligors who have been ordered to pay the child support agency with identification of the amount attributed to each obligor.

14-09-09.17. Amendment - Termination of income withholding order. Upon amendment or termination of an income withholding order, the child support agency shall send appropriate notice to the income payer. An income withholding order is to be amended by the child support agency when the total amount of money to be withheld is changed by elimination of arrearages or by court-ordered change in amount of child support. An income withholding order is to be terminated when the duty to support ceases and all child support arrearages have been paid. When two or more income payers have been subjected to income withholding orders with respect to a child support obligation, the child support agency shall suspend the income withholding order directed to one or more income payers, provided that the amount of child support withheld by the remaining income payer or payers equals the amount determined under section 14-09-09.30. The child support agency shall immediately reinstate any suspended income withholding order should any child support obligation of the obligor thereafter become delinquent. The child support agency shall provide a copy of the reinstated income withholding order, by first-class mail, to the obligor and the income payer.

14-09-09.18. Interstate income withholding - Initiation by this state to other state. On application of a resident of this state, an obligee or an obligor of a support order issued by this state, or an agency to which an obligee has assigned support rights, the child support agency shall request the child support enforcement agency of another state in which the obligor of a support order derives income to enter the order for the purpose of obtaining income withholding against such income. The child support agency shall make that request within twenty days of the later of the date income withholding is determined appropriate or the date of receipt of any information necessary to carry out withholding. The child support agency shall compile and transmit to the child support agency of the other state all documentation required to enter an order for this purpose. The child support agency shall also transmit to the child support agency certified copies of any subsequent modifications of the support order. If the child support agency receives notice that the obligor is contesting the income withholding in another state, it shall immediately notify the individual obligee of the date, time, and place of the hearings and of the obligee's right to attend.

14-09-09.24. Immediate income withholding.

  1. Except as provided in subsection 2 or 3, each judgment or order which requires the payment of child support, issued or modified on or after January 1, 1990, subjects the income of the obligor to income withholding, regardless of whether the obligor's support payments are delinquent.
  2. If a party to a proceeding, who would otherwise be subject to immediate income withholding under subsection 1, demonstrates, and the court finds that there is good cause not to require immediate withholding, or if the parties, including any assignee of support rights, reach a written agreement that provides for an alternative arrangement for assuring the regular payment of child support, the court need not subject the income of the obligor to immediate withholding.
  3. If an obligor, who would otherwise be subject to immediate income withholding under subsection 1 in at least one case in which services are being provided by a child support agency under title IV-D, demonstrates, and a child support agency finds there is good cause not to require immediate income withholding, the child support agency may enter into a written agreement with an obligor that provides for an alternate payment arrangement in lieu of immediate income withholding. Notwithstanding section 14-09-09.13, any failure to comply with an agreement under this subsection subjects the income of the obligor to income withholding under this section. Any obligee aggrieved by a finding of a child support agency under this subsection may seek review of the finding under subsection 2 of section 50-09-14.
  4. A finding that there is good cause not to require immediate income withholding under subsection 2 or 3 must be based on at least:
    1. A written determination that, and an explanation of why, implementing immediate income withholding would not be in the best interests of the child;
    2. Proof of timely payment of previously ordered support; and
    3. A requirement that the obligor keep the clerk and the child support agency informed of any employment-related health insurance to which the obligor has access.
  5. A written agreement for an alternative arrangement for assuring the regular payment of child support is effective only if the agreement at least, in addition to other conditions the parties agree to:
    1. Provides that the obligor shall keep the clerk and the child support agency informed of any employment-related health insurance to which the obligor has access;
    2. Describes the provisions by which regular payment of child support is assured; and
    3. Is reviewed and approved by the court and entered into the court's records.

14-09-09.25. Requests by obligee for income withholding - Approval - Procedures and standards.

  1. An obligee may apply to a child support agency for approval of an income withholding request. The income of the obligor becomes subject to income withholding on the date an approved request is made.
  2. The child support agency shall establish procedures and standards for the approval of obligee requests for income withholding. The standards established must include consideration of:
    1. An obligor's threat to discontinue child support payments; and
    2. An obligor's having made child support payments sufficient to avoid a delinquency but insufficient to conform to the ordered amount.
  3. Upon application of an obligee requesting income withholding, the child support agency shall promptly approve or disapprove the request. The child support agency may not approve the obligee's request in a case where the court has determined that there is good cause not to require immediate income withholding unless the court first changes its determination.

14-09-09.29. Coordination of income withholding activities. The child support agency shall assume responsibility for administration of income withholding and the receipt and disbursement of child support payments.

14-09-09.30. Monthly amount due.

  1. If there is a current monthly support obligation, the sum of the obligor's current monthly support obligation; and
    1. The amount the obligor is ordered to pay toward any outstanding arrearage; or
    2. If no order to repay an arrearage exists, an amount for application to any arrearage equal to twenty percent of the obligor's current monthly support obligation; or
  2. If there is no current monthly support obligation:
    1. An amount equal to the greater of:
      1. The amount the obligor is ordered to pay toward any outstanding arrearage; or
      2. The sum of the obligor's most recent monthly support obligation and twenty percent of the obligor's most recent monthly support obligation;
    2. An amount the obligor is ordered to pay toward an arrearage during periods when the supported child resides with the obligor pursuant to a court order; or
    3. An amount the obligor is ordered to pay toward an arrearage if that amount is included in an order issued when there is no current monthly support obligation.
  3. The total amount of child support due in each month under this section may be increased at the request of the obligor to repay an arrearage or by agreement with the child support agency.

14-09-09.34. Lump sum payments.

  1. An income payer who has been served with an income withholding order issued under section 14-09-09.15 for an obligor which includes an amount for past-due support shall notify the child support agency before making any lump sum payment of one thousand dollars or more to the obligor and may report a lump sum payment of an amount less than one thousand dollars or of an amount yet to be determined. "Lump sum payment" includes pay in lieu of vacation or other leave, bonus, commission, and any other payment to an obligor but does not include periodic payments made on regular paydays as compensation for services and does not include reimbursement for expenses incurred by the obligor on behalf of the income payer.
  2. An income payer who provides notice of a lump sum payment to the child support agency under subsection 1 may not make more than one-half of the payment to the obligor for thirty days from the date of the notice to the child support agency or until the income payer receives written authorization from the child support agency to make the lump sum payment to the obligor, whichever occurs first.
  3. Notwithstanding subsection 2, an income payer who provides notice of a lump sum payment to the child support agency under subsection 1 may not make a lump sum payment to an obligor if the income payer has been notified that an execution, garnishment, attachment, or other process has been initiated regarding the lump sum payment to satisfy a child support obligation of the obligor.
  4. An income payer who owes a lump sum payment under this section is subject to the duties and liabilities in section 14-09-09.3 unless the context indicates otherwise.
  5. This section does not apply to any portion of a lump sum payment that must be paid to satisfy an income withholding order issued under section 14-09-09.15.

14-09-34. Electronic remittal of funds withheld under an income withholding order. An income payer that employs more than twenty-four employees at any time and has received more than four income withholding orders under this chapter shall remit any withheld funds by an electronic method approved by the child support agency. An income payer that employs more than twenty-four employees at any time and has received fewer than five income withholding orders under this chapter may choose to opt out of an electronic method approved by the child support agency only through a written request. An income payer that does not comply with this section is deemed to have failed to deliver income under section 14-09-09.3. The child support agency may waive, upon a showing of good cause, the requirement to remit funds electronically.

14-12.2-33. (501) Employer's receipt of income-withholding order of another state. An income-withholding order issued in another state may be sent to the person or entity defined as the obligor's employer under section 14-09-09.10 without first filing a petition or comparable pleading or registering the order with a tribunal of this state.
(Contingent effective date - see note) (501) Employer's receipt of income-withholding order of another state. An income-withholding order issued in another state may be sent by or on behalf of the obligee, or by the support enforcement agency, to the person defined as the obligor's employer under section 14-09-09.10 without first filing a petition or comparable pleading or registering the order with a tribunal of this state.

14-12.2-33.1. (502) Employer's compliance with income-withholding order of another state.

  1. Upon receipt of an income-withholding order, the obligor's employer shall immediately provide a copy of the order to the obligor.
  2. The employer shall treat an income-withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of this state.
  3. Except as otherwise provided by subsection 4 and section 14 12.2 33.2, the employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order which specify:
    1. The duration and amount of periodic payments of current child support, stated as a sum certain;
    2. The person or agency designated to receive payments and the address to which the payments are to be forwarded;
    3. Medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor's employment;
    4. The amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee's attorney, stated as sums certain; and
    5. The amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
  4. An employer shall comply with the law of the state of the obligor's principal place of employment for withholding from income with respect to:
    1. The employer's fee for processing an income-withholding order;
    2. The maximum amount permitted to be withheld from the obligor's income; and
    3. The times within which the employer must implement the withholding order and forward the child support payment.
    (Contingent effective date - see note) (502) Employer's compliance with income-withholding order of another state.
    1. Upon receipt of an income-withholding order, the obligor's employer shall immediately provide a copy of the order to the obligor.
    2. The employer shall treat an income-withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of this state.
    3. Except as otherwise provided by subsection 4 and section 14-12.2-33.2, the employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order which specify:
    a. The duration and amount of periodic payments of current child support, stated as a sum certain;
    b. The person designated to receive payments and the address to which the payments are to be forwarded;
    c. Medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor's employment;
    d. The amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee's attorney, stated as sums certain; and
    e. The amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
    4. An employer shall comply with the law of the state of the obligor's principal place of employment for withholding from income with respect to:
    a. The employer's fee for processing an income-withholding order;
    b. The maximum amount permitted to be withheld from the obligor's income; and
    c. The times within which the employer must implement the withholding order and forward the child support payment.

14-12.2-33.2. (503) Compliance with multiple income-withholding orders. If an obligor's employer receives multiple income-withholding orders with respect to the earnings of the same obligor, the employer satisfies the terms of the multiple orders if the employer complies with the law of the state of the obligor's principal place of employment to establish the priorities for withholding and allocating income withheld for multiple child support obligees.
(Contingent effective date - see note) (503) Employer's compliance with two or more income-withholding orders. If an obligor's employer receives two or more income-withholding orders with respect to the earnings of the same obligor, the employer satisfies the terms of the orders if the employer complies with the law of the state of the obligor's principal place of employment to establish the priorities for withholding and allocating income withheld for two or more child support obligees.

14-12.2-33.3. (504) Immunity from civil liability. An employer who complies with an income-withholding order issued in another state in accordance with this chapter is not subject to civil liability to an individual or agency with regard to the employer's withholding of child support from the obligor's income.
(Contingent effective date - See note) (504) Immunity from civil liability.
An employer that complies with an income-withholding order issued in another state in accordance with this chapter is not subject to civil liability to an individual or agency with regard to the employer's withholding of child support from the obligor's income.

14-12.2-33.4. (Contingent expiration date - See note) (505) Penalties for noncompliance. An employer who willfully fails to comply with an income-withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state. (Contingent effective date - See note) (505) Penalties for noncompliance. An employer that willfully fails to comply with an income-withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.
(Contingent effective date - See note) (505) Penalties for noncompliance. An employer that willfully fails to comply with an income-withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.

 

Return to the top of the page Top of page   Go back to the previous page Back to previous page


 Get Adobe Acrobat Reader Tested for W3C WAI AA Accessibility Tested for W3C Well-Formed XHTML Code Tested for W3C Well Formed Cascading Style Sheet Code