Ariz. Rev. Stat. § 25-504

Current through L. 2024, ch. 259

Section 25-504 - Order of assignment; ex parte order of assignment; responsibilities; violation; termination

A. In a proceeding in which the court orders a person to pay support the court shall, and in a proceeding in which the court orders a person to pay spousal maintenance the court may, assign to the person or agency entitled to receive the support or spousal maintenance that portion of the person's income necessary to pay the amount ordered by the court. In a proceeding in which spousal maintenance is ordered to be paid the court shall order the assignment on either party's request.

B. A person who is obligated by an order to pay support or spousal maintenance, the person to whom support or spousal maintenance is ordered to be paid or the department or its agent in a title IV-D case may file a verified request with the clerk of the superior court requesting the clerk to issue an ex parte order of assignment for support or spousal maintenance. The ex parte order of assignment may include a payment for current support and any other support, current spousal maintenance, spousal maintenance arrearages and interest on spousal maintenance arrearages. A request filed by the department or its agent need not be verified. The request shall state:

1. The name of the person or agency entitled to receive support or spousal maintenance.

2. The monthly amount of any current support and the monthly amount of any spousal maintenance ordered by the court.

3. The specific amount requested for any support arrearages, spousal maintenance arrearages or interest.

4. The name and address of the payor to whom it is requested the order of assignment be directed and the name of the person obligated to pay support or spousal maintenance.

C. After receipt of a request for an ex parte order of assignment the clerk of the superior court, without a hearing or notice to the person obligated to pay support or spousal maintenance, shall issue an order of assignment of that portion of the person's income as is sufficient to pay the amount requested to the person or agency entitled to receive the support or spousal maintenance. The order of assignment shall include the social security number of the obligated person. On issuance of an ex parte order of assignment, the clerk shall issue a notice directed to the obligor in substantially the following form, which shall also be in Spanish:

Notice

To: The obligor (the person ordered to pay support or spousal maintenance)

This is to notify you that part of your income or other monies is being taken away by the enclosed order of assignment that was issued on a request for an order of assignment that also is enclosed. The order of assignment has been issued for currently accruing child support or spousal maintenance, or both, based on the requesting party's claim that you are obligated to pay this. In addition, the requesting party may be claiming a right to collect other support, as defined in section 25-500, Arizona Revised Statutes, arrearages on spousal maintenance or interest on a judgment for unpaid spousal maintenance.

If you believe the enclosed order of assignment is improper or unlawful, that your property is exempt by law or that your employer or other payor is withholding more than is permitted by law, you may request a hearing before the superior court. You must file a request to terminate or adjust the order of assignment on forms provided by the clerk of the court within seven days after your receipt of the order for assignment, request for an order of assignment and this notice. If you request a hearing, it will be held no more than ten days after you file your request with the court.

Here are some other important things you should know:

The order of assignment is effective immediately on service of the order on your employer or another payor. The first employer or payor served shall not withhold or deduct amounts specified in the ex parte order of assignment for fourteen calendar days from the date of service to allow you, the obligor, an opportunity to contest the order of assignment as provided in section 25-504, Arizona Revised Statutes. A future employer or payor may begin deductions sooner than the fourteen day period after the order of assignment is received.

If you request a hearing, the court, after considering the financial resources of both parties and the reasonableness of the positions each party has taken, may order a party to pay a reasonable amount to the other for the attorney fees and costs of filing or defending the request.

Under state law (section 33-1131, Arizona Revised Statutes) no more than one-half of your disposable earnings for any pay period may be taken to satisfy an order issued for support or spousal maintenance. The amount of disposable earnings exempt from the order of assignment must be paid to you when due. Disposable income means the remaining portion of your wages, salary or compensation for personal services, including bonuses and commissions, or otherwise, and includes payments pursuant to a pension or retirement program or a deferred compensation plan, after deducting from such earnings the amounts required by law to be withheld.

An employer or other payor who receives the order of assignment may deduct from amounts due to you one dollar for each pay period, but not more than four dollars per month, for costs. The employer or payor also must deduct a monthly amount for the support payment handling fee required by state law (section 25-510, Arizona Revised Statutes).

The employer or other payor on whom the order of assignment is served will continue to withhold the amount set in the order and will forward the payment to the support payment clearinghouse until you file with the clerk one of the following:

1. A verified request to adjust the order of assignment, and the court adjusts the order of assignment because there has been a change of circumstances since the time of the issuance of the order or there is other good cause to do so.

2. A verified request for a hearing to terminate the order of assignment and, after a hearing, the court terminates the order of assignment if all obligations have been satisfied or will be satisfied within ninety days.

3. A notarized stipulation stating that the obligation to pay support or spousal maintenance has ended and that all arrearages either have been satisfied or have been waived, and the clerk terminates the order of assignment.

An employer may not refuse to hire, may not discharge or may not otherwise discipline you as a result of the order of assignment. If you are wrongfully refused employment, discharged or otherwise disciplined you may recover damages suffered, plus reinstatement if appropriate, plus reasonable attorney fees and costs incurred against the employer.

Unless a court has expressly ordered otherwise, you must notify the clerk of the court or the support payment clearinghouse in writing of the address of your residence and of your employment and, within ten days, of a change in either one. Your failure to do so may subject you to sanctions for contempt of court, including reasonable attorney fees and costs pursuant to state law (section 25-504, subsection R, Arizona Revised Statutes). Official notices will be delivered to you at the most recent addresses you have provided to the clerk or support payment clearinghouse.

D. Any order of assignment shall be issued only for support, spousal maintenance, spousal maintenance arrearages, interest on spousal maintenance arrearages and handling fees. The order of assignment shall state the total amount that the payor shall withhold. The order of assignment also shall specify the monthly amount of current support and any other payment ordered for support, the monthly amount of any current spousal maintenance, the monthly amount of any spousal maintenance arrearages and any monthly interest payment. If the obligor's disposable earnings from the primary employer or other payor do not meet the support obligation, the court shall issue an order of assignment to a secondary employer or other payor of the obligor in order to meet the full support obligation.

E. An order of assignment shall be served on any employer or other payor by first class mail, electronic transmission or personal delivery or pursuant to the Arizona rules of family law procedure. The order of assignment is effective immediately on receipt by any employer or other payor and any future employer or future payor. Any employer or other payor of monies shall begin withholding no later than fourteen days after receipt of an order of assignment. The employer or other payor, if feasible, may begin withholding sooner than the fourteen day period if a payment to the obligor is due sooner.

F. Two copies of an ex parte order of assignment and of the request for an order of assignment, together with a copy of the notice required by this section, shall be served on any employer or other payor in the same manner as other orders of assignment under this section. Within five days after receipt, the employer or payor shall serve by personal delivery or by registered mail one copy of the ex parte order of assignment and of the request and the notice on the employee or other payee. The ex parte order of assignment is effective on any employer or other payor, and as an assignment by operation of law is effective on any future employers or other future payors, immediately on receipt. The first employer or other payor served shall not withhold or deduct amounts specified in the ex parte order of assignment for fourteen calendar days to allow the obligor an opportunity to contest the order of assignment as provided in this section. Any future employers or future payors shall begin withholding not later than fourteen days after receipt of an ex parte order of assignment but, if feasible, may begin withholding sooner than fourteen days if a payment to the obligor is due sooner.

G. After service of an ex parte order of assignment on the employer or payor that initially receives the order of assignment, an obligor may request a hearing to contest the ex parte order of assignment. The request shall be made in writing, and the obligor shall state under oath the specific reason for the request. The request shall be filed with the court together with a notice of hearing form. The court shall hold a hearing within ten days after the request and notice of hearing form is filed. Immediately on the scheduling of the hearing, the obligor shall serve a copy of the request for and notice of hearing on the person entitled to receive support, and in a title IV-D case to the department. If the obligor files a request for hearing within seven days after receipt of the order of assignment, the court may order the support payment clearinghouse not to disburse any monies received pursuant to the order of assignment until further order of the court. The obligor may contest the withholding for any of the following reasons:

1. There is an error in the identity of the obligor.

2. There is an error in the amount of support or spousal maintenance.

3. Invalidity of the order for support or spousal maintenance.

4. Current support or spousal maintenance is no longer owed, if the order of assignment includes a payment for current support or spousal maintenance.

5. Arrearages are not owed if the order of assignment includes a payment for arrearages.

H. Any employer or other payor who has received any order of assignment shall withhold the amount specified in the order of assignment, together with the handling fee as provided in section 25-510, from the income of the person obligated to pay support or spousal maintenance and shall transmit the withheld monies to the support payment clearinghouse within two business days after the obligor is paid or after the payment to the obligor is due. The handling fee shall be deducted and transmitted monthly. For the cost of compliance the employer or payor may also withhold and retain an additional one dollar per payment but not more than four dollars per month for each obligor. An employer or payor may combine in a single payment withheld monies for more than one obligor, shall separately identify the portion of the remittance that is attributable to each obligor and shall include each obligor's social security number. An employer or payor shall notify the clerk or support payment clearinghouse in writing when the obligor is no longer employed or the right to receive income or other monies has been terminated. The employer or payor shall also notify the clerk or support payment clearinghouse in writing of the obligor's social security number and last known address and the name and address of the obligor's new employer, if known, within ten days. In a non-title IV-D case, within ten days after receiving this information the support payment clearinghouse shall notify the clerk of the superior court in the county where the support or maintenance order was issued. If within ninety days of the last payment, the employer or other payor reemploys the obligor or becomes obligated to pay the obligor, the employer or payor is again bound by the order of assignment and is required to perform as required by this section. In a title IV-D case the order of assignment may be reinstated pursuant to section 25-505.01. An employer or payor who fails without good cause to comply with the terms of an order of assignment is liable for amounts not paid to the clerk or support payment clearinghouse pursuant to the order of assignment and reasonable attorney fees, costs and other expenses incurred in procuring compliance and may be subject to contempt.

I. If a person is obligated to pay child support for more than one family and the amount available for withholding is not sufficient to meet the total combined current child support obligation, any monies withheld from the obligor's income shall be allocated to each family by the employer or payor as follows:

1. The amount of current child support ordered in each case shall be added together to obtain the total current child support obligation.

2. The amount of current child support ordered in each case shall be divided by the total current child support obligation to obtain the percentage of the total current child support obligation to be allocated to each case.

3. The amount withheld from the obligor shall be multiplied by the percentage for each case to obtain the amount to be allocated to each case.

J. The person or agency entitled to receive support or spousal maintenance shall notify the clerk of the superior court or support payment clearinghouse in writing of any change of residential address and of any other information required pursuant to section 46-443, within ten days of any change. If after reasonable efforts to locate the obligee the clerk or support payment clearinghouse is unable to deliver payments under an order of assignment for the period prescribed in section 25-503 due to the failure of an obligee to comply with the notice requirement of this subsection, the clerk or support payment clearinghouse shall not make further payment under the order of assignment and shall return payments to the obligor as prescribed in section 25-503. Under these circumstances the court, clerk or department or its agent shall order the release of the employer or payor from the order of assignment on request of the employer, the payor, the department or its agent or on the clerk's own initiative. Any order of assignment from which an employer or payor has been released may be reinstated by following the procedures for obtaining an ex parte order of assignment pursuant to this section or, in a title IV-D case, an administrative income withholding order pursuant to section 25-505.01.

K. Unless a court has ordered otherwise, the person ordered to pay support or spousal maintenance shall notify the clerk of the superior court or the support payment clearinghouse in writing of the obligor's residential address and the name and address of any employer, and within ten days of any change. Failure to do so may subject the person to sanctions for contempt of court, including reasonable attorney fees and costs.

L. Any order of assignment may be adjusted if there has been a change of circumstances since the date the order of assignment was issued or for good cause. The department or its agent or a person obligated to pay or entitled to receive support or spousal maintenance shall file with the clerk of the superior court a request to adjust the order of assignment and a proposed order of assignment. The request shall specify the adjustment sought and the reason for the request. A copy of the request shall be served pursuant to the Arizona rules of family law procedure, or by the department or its agent in a title IV-D case by first class mail, on all other parties and on the state if the department is providing title IV-D support services or has a claim for arrearages. The party receiving the request and proposed order may request a hearing within twenty days or within thirty days if service is made outside this state. On proof of service and if a hearing has not been requested within the time allowed, the clerk shall issue the order of assignment as appropriate. Within two business days after the date the order of assignment is issued, the clerk shall transmit a copy of the order of assignment to the employer or payor, the department or its agent and all parties. Unless ordered otherwise by the court, in a title IV-D case any order of assignment may be adjusted pursuant to section 25-505.01.

M. The department or its agent or a person obligated to pay or entitled to receive support or spousal maintenance may file a request to terminate any order of assignment if the obligation to pay support or spousal maintenance has ended or will end within ninety days after the filing of the request and if all arrearages either have been paid or will be paid within the period or have been waived. The request shall state the reason why termination is requested and shall contain the name and address of the employer or payor of the person obligated to pay support. A copy of the request shall be served pursuant to the Arizona rules of family law procedure, or by the department or its agent in a title IV-D case by first class mail, on all other parties and on the state if the department is providing title IV-D support services or has a claim for arrearages. A party receiving this notice may request a hearing within twenty days or within thirty days if service is made outside this state. On proof of service and if a hearing has not been requested within the time allowed, the clerk shall issue an order terminating the order of assignment as appropriate. Within two business days after the date the order is issued, the clerk shall transmit a copy of the order terminating the order of assignment to the employer or payor and to the department or its agent. If a hearing is requested, the court shall set the hearing within twenty days after receiving the request and shall issue an appropriate order. A person who is ordered to pay support may request the court to terminate an order of assignment at any time if an employer is making deductions on multiple assignments for an obligation for the same minor children. Notwithstanding any law to the contrary, the clerk shall not charge a fee to a person who files a request to terminate an order of assignment if an employer is making deductions on multiple assignments for an obligation for the same minor children.

N. If a request to adjust or terminate an order of assignment is filed, the court in its discretion may order that the clerk of the superior court or support payment clearinghouse not disburse any monies in dispute until further order of the court.

O. The clerk of the superior court shall issue an order terminating the order of assignment if the parties, including the department or its agent in a title IV-D case, file a notarized stipulation with the clerk that all obligations of support or spousal maintenance have been satisfied and that the obligor is no longer obligated to pay support or spousal maintenance. The stipulation shall state that the current obligation of support or spousal maintenance no longer exists and that all arrearages either have been satisfied or waived. The stipulation shall also contain the name and address of the employer or payor of the person obligated to pay support or spousal maintenance. Within five business days after the date the stipulation is filed, the clerk shall transmit a copy of the order terminating the order of assignment to the employer or payor and to the department or its agent. Notwithstanding any law to the contrary, the clerk shall not charge a fee to a party who files a stipulation pursuant to this subsection.

P. An assignment ordered pursuant to this section has priority over all other executions, attachments or garnishments. An obligation for current child support shall be fully met before any payments pursuant to an order of assignment may be applied to any other support obligation. An assignment ordered under this section does not apply to amounts made exempt under section 33-1131 or any other applicable exemption law.

Q. Any employer or other payor shall not refuse to hire a person and shall not discharge or otherwise discipline an obligor because of service of an order of assignment authorized by this section. An employer or payor who refuses to hire a person or who discharges or otherwise disciplines an employee or obligor because of service of an order of assignment is subject to contempt and sanctions as may be ordered by the court. A person who is wrongfully refused employment, wrongfully discharged or otherwise disciplined is entitled to recover damages sustained by the prohibited conduct, reinstatement, if appropriate, and attorney fees and costs incurred.

R. In any proceeding under this section the court, after considering the financial resources of the parties and the reasonableness of the positions each party has taken, may order a party to pay a reasonable amount to another party for the costs and expenses, including attorney fees, of maintaining or defending the proceeding.

A.R.S. § 25-504