§ 110-136.5. Implementation of withholding in non-IV-D cases.
§ 110‑136.5. Implementation of withholding innon‑IV‑D cases.
(a) Withholding based on delinquent or erratic payments.Notwithstanding any other provision of law, when an obligor is delinquent inmaking child support payments or has been erratic in making child supportpayments, the obligee may apply to the court, by motion or in an independentaction, for an order for income withholding.
(1) The motion or complaint shall be verified and state, to theextent known:
a. Whether the obligor is under a court order to provide childsupport and, if so, information sufficient to identify the order;
b. Either:
1. That the obligor is currently delinquent in making childsupport payments; or
2. That the obligor has been erratic in making child supportpayments;
c. The amount of overdue support and the total amount sought tobe withheld;
d. The name of each child for whose benefit support is payable;and
e. The name, location, and mailing address of the payor orpayors from whom withholding is sought and the amount of the obligor's monthlydisposable income from each payor.
(2) The motion or complaint shall include or be accompanied by anotice to the obligor, stating:
a. That withholding, if implemented, will apply to theobligor's current payors and all subsequent payors; and
b. That withholding, if implemented, will be continued untilterminated pursuant to G.S. 110‑136.10.
Atany time the parties may agree to income withholding by consent order.
(b) Withholding Based on Obligor's Request. The obligor mayrequest at any time that income withholding be implemented. The request may bemade either verbally in open court or by written request.
(1) A written request for withholding shall state:
a. That the obligor is under a court order to provide childsupport, and information sufficient to identify the order;
b. Whether the obligor is delinquent and the amount of anyoverdue support;
c. The name of each child for whose benefit support is payable;
d. The name, location, and mailing address of the payor orpayors from whom the obligor receives disposable income and the amount of theobligor's monthly disposable income from each payor;
e. That the obligor understands that withholding, ifimplemented, will apply to the obligor's current payors and all subsequentpayors and will be continued until terminated pursuant to G.S. 110‑136.10;and
f. That the obligor understands that the amount withheld willinclude an amount sufficient to pay current child support, an additional amounttoward liquidation of any arrearages, and a two dollar ($2.00) processing feeto be retained by the employer for each withholding, but that the total amountwithheld may not exceed the following percent of disposable income:
1. Forty percent (40%) if there is only one order forwithholding;
2. Forty‑five percent (45%) if there is more than oneorder for withholding and the obligor is supporting other dependent children orhis or her spouse; or
3. Fifty percent (50%) if there is more than one order forwithholding and the obligor is not supporting other dependent children or aspouse.
(2) A written request for withholding shall be filed in theoffice of the clerk of superior court of the court that entered the order forchild support. If the request states and the clerk verifies that the obligor isnot delinquent, the court may enter an order for withholding without furthernotice or hearing. If the request states or the clerk finds that the obligor isdelinquent, the matter shall be scheduled for hearing unless the obligor inwriting waives his right to a hearing and consents to the entry of an order forwithholding of an amount the court determines to be appropriate. The court mayrequire a hearing in any case. Notice of any hearing under this subdivisionshall be sent to the obligee.
(c) Order for withholding. If the district court judge findsafter hearing evidence that the obligor, at the time of the filing of themotion or complaint was, or at the time of the hearing is, delinquent in childsupport payments or that the obligor has been erratic in making child supportpayments in accordance with G.S. 110‑136.5(a), or that the obligor hasrequested that income withholding begin in accordance with G.S. 110‑136.5(b),the court shall enter an order for income withholding, unless:
(1) The obligor proves a mistake of fact, except that G.S. 110‑129(10)(a)is not applicable if withholding is based on the obligee's motion orindependent action alleging that the obligor is delinquent or has been erraticin making child support payments; or
(2) The court finds that the child support obligation can beenforced and the child's right to receive support can be ensured without entryof an order for income withholding; or
(3) The court finds that the obligor has no disposable incomesubject to withholding or that withholding is not feasible for any otherreason.
If the obligor fails to respond or appear, the courtshall hear evidence and enter an order as provided herein.
(c1) Immediate income withholding. In non‑IV‑D casesin which a child support order is initially entered on or after January 1,1994, an obligor is subject to income withholding immediately upon entry of theorder, unless either of the following applies:
a. One of the parties demonstrates, and the court finds, thatthere is good cause not to require immediate income withholding.
b. A written agreement is reached between the parties thatprovides for an alternative arrangement.
The term "good cause" as used in thissubsection includes a reasonable and workable plan for consistent and timelypayments by some means other than income withholding. In considering whether aplan is reasonable, the court may consider the obligor's employment history andrecord of meeting financial obligations in a timely manner.
In entering an order for immediate income withholding under thissubsection, the court shall follow the requirements and procedures as specifiedin other sections of this Article, including amount to be withheld, multiplewithholdings, notice to payor, and termination of withholding.
(d) Notice to payor and obligor. If an order for incomewithholding is entered, a notice of obligation to withhold shall be served onthe payor as required by G.S. 1A‑1, Rule 5, Rules of Civil Procedure.Copies of such notice shall be filed with the clerk of court and served uponthe obligor by first class mail.
(e) Modification of withholding. When an order for withholdinghas been entered under this section, any party may file a motion seekingmodification of the withholding based on changed circumstances. The clerk orthe court on its own motion may initiate a hearing for modification when itappears that modification of the withholding is required or appropriate. (1985 (Reg. Sess., 1986), c. 949, s. 2; 1987, c. 60; 1989, c. 601, s.4; 1993, c. 517, s. 2; 1999‑293, s. 18; 2001‑487, s. 72.)