Mar 21

Hold the Garnish: You Can Stop Your Ex from Grabbing Your Paycheck

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The easiest and most common method of enforcing a support order against an employed spouse or parent is an earnings assignment order (EAO). In California, every order for child support, spousal support, and family support, whether a temporary or permanent order or a modification of such order, must initially include an EAO.1 The amount of the EAO must be sufficient to satisfy a current support order and/or any arrearages.2 If your ex pulls the trigger and serves your employer with an EAO, your employer must withhold and forward to your ex an appropriate amount of earnings (including wages, tips, temporary disability benefits, mineral rights, or any other payments or credits3) within 10 days of service of the EAO.4

An EAO can take a huge chunk out of your paycheck – up to 65% of your net disposable earnings in some cases – not to mention make your employer think you’re a deadbeat.5 Unfortunately, you can’t just ask your employer to ignore an EAO. If your employer willfully fails to forward support to your ex after service of an EAO, your employer will be liable to your ex for the amount of that support, plus interest.6 If he does that more than once over a 12-month period, the court can order him to pay a civil penalty of up to 50% of the unforwarded amount and order future electronic transfers from his bank account.7 Fortunately, you don’t have to resort to shenanigans to avoid an EAO. The law offers a support obligor several lines of attack on an EAO. 

Overcoming an EAO on Substantive Grounds

If you’ve paid all support and interest, you can move to terminate service of an EAO if any of the following are true: (1) the order is for spousal support, and your ex has died or remarried; (2) the order is for child support, and your child has died or been emancipated; (3) good cause to terminate an EAO exists, and your ex hasn’t requested more than one EAO; (4) you’ve complied with a written agreement to pay support, and the court hasn’t terminated and re-initiated an EAO; (5) no support order exists; (6) the court’s termination of a stay of an EAO was improper and based only on the existence of an arrearage; or (7) your employer couldn’t forward payment for at least six months because your ex failed to notify him of a change of address.8

Similarly, you can move to stay of service of an EAO if you can prove both of the following: (1) you and your ex have a written agreement whereby you voluntarily pay support pursuant to a support order, and in return, she holds off on serving an EAO on your employer; and (2) “good cause” for a stay exists.9 But proving “good cause” is no walk in the park. Rather, you must prove to the court all of the following: (a) you have a history of uninterrupted, full, and timely payment, other than through an EAO or other mandatory process, of previously ordered support during the preceding 12 months; (b) you aren’t in arrears; (c) service of the EAO would cause you “extraordinary hardship”; and (d) if the order is for child support, the stay is in the child’s best interests.10

Overcoming an EAO on Technical Grounds

Even if you haven’t been on the best behavior, you can move to quash service of an EAO on your employer in three cases. First, you can move to quash an EAO if it doesn’t state the correct amount of support. But whether an EAO is vulnerable to a motion to quash if the amount is off by a penny isn’t clear. Second, you can move to quash if your ex got the wrong guy. Third, you can move to quash if the amount that your employer is to withhold under the EAO exceeds the maximum amount withholdable under federal law. Your employer can withhold (1) up to 50% of your disposable earnings if you’re supporting a spouse or a child who isn’t the subject of the order or (2) up to 60% if you’re not supporting them, plus 5% if you’re over 12 weeks in arrears.11

The making of a motion to quash service of an EAO is subject to several draconian rules. You must file the motion to quash within 10 days after your ex serves the EAO on your employer.12 (In contrast, a civil defendant has 30 days to move to quash service of a complaint.) Even if you beat the clock and the court grants your motion, you won’t get a second bite at the apple once you get a new job. If your ex serves your new employer with the same EAO, you’ll have no right to move to quash service of the EAO on any grounds that you raised or could have raised when your ex served the EAO on your prior employer.13 If you waived the only argument you could make in your second motion to quash, you’ll have to move to terminate or stay service of the EAO – a higher hurdle.

  1. Fam. Code §5230. 

  2. Id

  3. Fam. Code §5206. 

  4. Fam. Code §5233. 

  5. 15 U.S.C. §1673(b)(2)(B). 

  6. Fam. Code §5241(a),(c). 

  7. Fam. Code §5241(d). 

  8. Fam. Code §§5240(a). 

  9. Fam. Code §5260(a). 

  10. Id

  11. Fam. Code §5270(a); 15 U.S.C. §1673(b)(2)(B). 

  12. Fam. Code §5271(a). 

  13. Fam. Code §5270(d). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.