Section 1240-02-02-.03 - ISSUANCE OF INCOME WITHHOLDING FOR SUPPORT(1) Criteria for Issuance.(a) Income Withholding for Support shall be ordered by the court for any order of child support issued, modified, or enforced on or after July 1, 1994 unless the provisions of T.C.A. § 36-5-501(a)(2) or § 36-5-116(a)(1) apply.(b) The Income Withholding for Support Order shall be issued by the Clerk of the Court, or by the Department or its contractors in Title IV-D cases, regardless of whether support payments are in arrears on the date of the order and shall include an amount sufficient to satisfy an accumulated arrearage, if any, within a reasonable time.(c) When any Income Withholding for Support Order is issued, for purposes of calculating any arrears, it shall be rebuttably presumed that one-half of the amount payable for current support shall be a reasonable amount which should be ordered for making a reduction of an arrearage.(d) The Income Withholding for Support Order may include an amount to pay medical expenses which the obligor is obligated or ordered to pay.(e) The amount withheld shall not exceed fifty percent (50%) of the obligor's income after FICA, withholding taxes, and a health insurance premium which covers the child are deducted.(f) The Income Withholding shall include an amount necessary to cover the fee due the Court Clerk or the Department, as appropriate. Court Clerks or the Department may issue an Income Withholding Order to recover court costs or fees which the obligor fails to pay.(2) In all cases in which the court has ordered immediate income assignment, the Clerk of the Court, or the Department of Human Services or its contractor in Title IV-D support cases, shall within two (2) business days issue an Income Withholding Order as described in 1240-02-02-.04 to an employer once the employer of a support obligor is identified.(3) No order of the court shall be necessary to issue an Income Withholding Order in circumstances where no previous Income Withholding Order has issued or in circumstances in which the obligor of child support was not subject to income withholding pursuant to the provisions of T.C.A. § 36-5-501(a)(2), and the records of the court or the Department show the obligor to be in arrears as defined in T.C.A. § 36-5-101(f)(1) and T.C.A. § 36-5-501(b)(1)(G).(4) If the support payments were previously ordered paid directly to the custodial parent, guardian or other caretaker of the child, and the obligor is in arrears as defined in T.C.A. § 36-5-101(f)(1) and T.C.A. § 36-5-501(b)(1)(G), the custodial parent, guardian or custodian may complete an Affidavit of Arrearage pursuant to 1240-02-02-.11 to request the issuance of an Income Withholding for Support Order by, respectively, the Clerk or the Department of Human Services. No order of the court shall be necessary for the issuance of an Income Withholding for Support Order pursuant to this paragraph.(5) Income Withholding for Support Order issued by the Clerk in Non-Title IV-D Cases. (a) When an Income Withholding for Support Order is issued by the Clerk of the Court in non-Title IV-D cases, and if the obligor requests a hearing pursuant to T.C.A. § 36-5-501(c)(1) regarding the withholding within fifteen (15) days of the date of the notice, or the date of personal service, if used, the Clerk shall promptly docket the case with the magistrate or court as provided by Tennessee Code Annotated, Title 36, Chapter 5, Part 4 and shall give notice to all parties, and shall take any other action as is necessary to ensure that the court meets the time frame in subparagraph (b).(b) In all cases in which the obligor requests a hearing, the magistrate or court shall conduct a hearing and make a determination, and the Clerk shall notify the obligor and the employer of the decision of the court or magistrate within forty-five (45) days of the date of the issuance of the Income Withholding for Support.(6) Transmission of Orders and Notices.(a) The notices and orders required to be issued pursuant to this Chapter shall be transmitted to any employer of an obligor and to obligors by any method chosen by the Court or the Department, including but not limited to: certified mail, return receipt requested; regular mail; electronic mail; facsimile transmission; or by personal service, and may be generated by computer or on paper. If a notice or order is returned or otherwise not deliverable, then service shall be had by any alternative method chosen by the Court or the Department, as described in the preceding sentence. Service by mail is complete upon mailing.(b) In all cases in which an immediate assignment of income has not been previously ordered, or in which an obligor who is ordered to pay child support in which either an immediate income assignment was not required by the court due to good cause provisions as found by the court, or in which there is a written agreement by the parties for alternative payment arrangements, the Notice of Income Assignment required by this Chapter to be sent to an obligor shall be issued within two (2) business days of the date the Income Withholding for Support is sent to the employer. The notice must be sent to the address of the obligor, if known, or to the obligor at the address of the employer of the obligor if the obligor's employer's address is unknown.(c) The notices and orders required by this chapter need not be entered in the minutes of the court, but shall be in the records of the case in the court when an Income Withholding for Support Order is issued.(d) Before taking action against an employer or other payer of income for failure to comply with this part, the Court or Department or its contractor shall ensure that service of the notice and order was made by certified mail, return receipt requested, or by personal service.(e) Electronically reproduced signatures, if necessary, shall be effective to issue any orders or notices pursuant to this Chapter.(7) Proof of mailing the Income Withholding for Support Order and notices sent by the Department or its contractors shall be evidenced by a screen print from the TCSES computer system showing the date of mailing which shall be prima facie evidence of the date of mailing.(8) The local Title IV-D child support office will be responsible for defending all administrative appeals of any such orders in Title IV-D support cases and appeals filed pursuant to T.C.A. § 36-5-1003.Tenn. Comp. R. & Regs. 1240-02-02-.03
Original rule filed December 17, 1985; effective January 14, 1986. Amendment filed October 17, 1986; effective January 27, 1987. Amendment filed August 25, 1989; effective October 13, 1989. Repeal and new rule filed December 7, 1994; effective February 20, 1995. Repeal and new rule filed October 14, 1999; effective December 28, 1999. Amendment filed September 8, 2009; effective December 7, 2009.Authority: T.C.A. §§ 4-5-202, 36-5-501, 71-1-132(c), 42 U.S.C. §§651 et seq., 42 U.S.C. §§652(a)(11), 654(9)(E), 654a(g)(1)(A)(ii) and 666(a)(8) and (b), 45 C.F.R. §§303.6(c)(1), 303.7, and 303.100.