ANSWER:
The answer is provided in 15 USCS
§ 1673. Although most creditors
can only take 25% of your “disposable
earnings,” child support is divided
into three categories:
1.
If you are supporting others, no more
than 50% of your income.
2.
If you are not supporting others,
no more than 60% of your “disposable
income,” unless arrears are more than
12 weeks, which it can go up to 65%
of your “disposable income.”
“Disposable
income” certainly includes income
only after taxes and social security
are removed.
The
law is unclear about child support.
15
USCS § 1673 (2005)
§ 1673. Restriction on garnishment
(a) Maximum allowable garnishment.
Except as provided in subsection (b)
and in section 305 [15 USCS § 1675],
the maximum part of the aggregate
disposable earnings of an individual
for any workweek which is subject
to garnishment may not exceed
(1) 25 per centum of
his disposable earnings for that week,
or
(2) the amount by which
his disposable earnings for that week
exceed thirty times the Federal minimum
hourly wage prescribed by section
6(a)(1) of the Fair Labor Standards
Act of 1938 [29 USCS § 206(a)(1)]
in effect at the time the earnings
are payable,
whichever is less. In the case of
earnings for any pay period other
than a week, the Secretary of Labor
shall by regulation prescribe a multiple
of the Federal minimum hourly wage
equivalent in effect to that set forth
in paragraph (2).
(b) Exceptions.
(1) The restrictions
of subsection (a) do not apply in
the case of--
(A)
any order for the support of any person
issued by a court of competent jurisdiction
or in accordance with an administrative
procedure, which is established by
State law, which affords substantial
due process, and which is subject
to judicial review.
(B)
any order of any court of the United
States having jurisdiction over cases
under chapter 13 of title 11 of the
United States Code [11 USCS §§ 1301
et seq.]
(C)
any debt due for any State or Federal
tax.
(2) The maximum part
of the aggregate disposable earnings
of an individual for any workweek
which is subject to garnishment to
enforce any order for the support
of any person shall not exceed--
(A)
where such individual is supporting
his spouse or dependent child (other
than a spouse or child with respect
to whose support such order is used),
50 per centum of such individual's
disposable earnings for that week;
and
(B)
where such individual is not supporting
such a spouse or dependent child described
in clause (A), 60 per centum of such
individual's disposable earnings for
that week;
except
that, with respect to the disposable
earnings of any individual for any
workweek, the 50 per centum specified
in clause (A) shall be deemed to be
55 per centum and the 60 per centum
specified in clause (B) shall be deemed
to be 65 per centum, if and to the
extent that such earnings are subject
to garnishment to enforce a support
order with respect to a period which
is prior to the twelve-week period
which ends with the beginning of such
workweek.
(c) Execution or enforcement of garnishment
order or process prohibited. No court
of the United States or any State,
and no State (or officer or agency
thereof), may make, execute, or enforce
any order or process in violation
of this section.
15 USCS § 1673
The
term disposable income is defined
in 15 USCS § 1672:
15 USCS § 1672 (2005)
§ 1672. Definitions
For the purposes of this title [15
USCS §§ 1671 et seq.]:
(a) The term "earnings"
means compensation paid or payable
for personal services, whether denominated
as wages, salary, commission, bonus,
or otherwise, and includes periodic
payments pursuant to a pension or
retirement program.
(b) The term "disposable
earnings" means that part of
the earnings of any individual remaining
after the deduction from those earnings
of any amounts required by law to
be withheld.
(c) The term "garnishment"
means any legal or equitable procedure
through which the earnings of any
individual are required to be withheld
for payment of any debt.
15 USCS § 1672
One
court has interpreted “disposable
income” as meaning income after taxes,
less one’s support obligation.
“As
we construe title III of the Consumer
Credit Protection Act (US Code, tit
15, §§ 1671-1677), the maximum amount
which may be garnished from the earnings
of an individual for any workweek
is 25% of his "disposable earnings"
(i.e., after-tax earnings [see US
Code, tit 15, § 1672, subd [b]), except
in the case of an order for support,
in which event the maximum is 50%
of disposable earnings, and up to
60% where the individual receiving
support is a spouse or dependent child
(US Code, tit 15, § 1673).”
General Motors Acceptance Corp. v.
Metropolitan Opera Asso., 98 Misc.
2d 307, 308 (N.Y. Misc. 1978)
The
court also held:
The above view of the Federal legislation
is espoused by the Secretary of Labor,
who is charged with the enforcement
of its provisions (US Code, tit 15,
§ 1676), and whose interpretation,
if not irrational or unreasonable,
is to be accorded great weight ( Matter
of Howard v Wyman, 28 NY2d 434, 438;
Brennan v Kroger Co., 513 F2d 961).
Petitioner's contention that payroll
deductions required under a support
order should not be included when
computing the percentage reduction
of a [*309] debtor's disposable
earnings is not an accurate reading
of the language of the statute. HN4
The term "garnishment" is
not restricted but includes any legal
or equitable procedure through which
the earnings of an individual are
required to be withheld for payment
of any debt -- thus encompassing orders
of support as well as ordinary creditor-debtor
garnishments (see US Code, tit 15,
§ 1672, subd [c]). The cases relied
upon by [***5] petitioner (e.g.,
Costa v Chevrolet-Tonawanda Div. of
Gen. Motors Corp., 53 Misc 2d 252,
affd 24 AD2d 732) antedate the passage
of title III of the act, and are not
controlling. This court is bound to
give precedence to the provisions
of the Federal statute (US Code, tit
15, § 1673, subd [c]), and we decide
the case in a manner which will best
further the manifest congressional
purpose of maximizing a debtor's share
of his own earnings.
General Motors Acceptance Corp. v.
Metropolitan Opera Asso., 98 Misc.
2d 307, 308-309 (N.Y. Misc. 1978)
Other courts appear to disagree.
Alimony and child support payments,
even if ordered by court, are not
"amounts required by law to be
withheld" and therefore must
be included in debtor's "disposable
earnings" within meaning of §
302(b) of the Consumer Credit Protection
Act (15
USCS § 1672(b)).
First Nat'l Bank v Hasty
(1976, ED Mich) 415 F Supp 170,
affd without op (1977, CA6 Mich)
573 F2d 1310
and affd without op (1977, CA6 Mich)
573 F2d 1310.
Biweekly wage assignment
of $130 for child support previously
ordered in dissolution of marriage
action is part of wage earner's disposable
earnings within meaning of
15 USCS § 1672(b),
since amounts withheld pursuant to
court order are not "required
by law to be withheld," which
means deductions for federal, state
and local withholding taxes, and social
security taxes.
Koethe v Johnson (1982,
Iowa) 328 NW2d 293.
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