Pearl72 said:
What is the name of your state?Colorado
I don't really want to do this, but feel i have no other choice. NCP is supposed to pay child support monthly, and IF im lucky i get it every few months...is there a legal and easy way to process it so that this gets taken out of his wages ? The child support would really help out with my daughter and her daycare and other bills. (when CO was made, daughter was not in daycare but now is) He has threatened to quit his job if i proceed to take his wages for the support. Do i have to go back to court to do this? Please advise... Thanks!
You'd need a court ordered wage garnishment. Is Child Support Enforcement handling your case? If so, they could do this for you.
Here is some info regarding Colorado Statutes:
GARNISHMENT AND WAGE ASSIGNMENTS:
STATUTE: Colo. Rules Civ. Proc. 69 and 103; Colo. Rev. Stat. Sec. 14-10-118 (1987 & Supp. 1994). Secs. 13-54.5-101 et seq.
(1) Garnishment in Colorado is covered under Rule 103 of the Rules of Civil Procedure (C.R.C.P.). Colorado recognizes that garnishment is a statutory remedy in derogation of common law and that it must be strictly construed. See State v. Elkins, 270 P. 875 (Colo. 1928). This remedy cannot be extended beyond its scope in the form of equitable relief nor can it be supported by implication or analogy. See Norchester v. State Farm Mutual Automobile Insurance Co., 473 P.2d 711, 712 (Colo. 1970).
(2) Colorado permits continuing garnishment for the collection of child support arrearages or for child support debts. Secs. 14-10-118, 14-14-107.
PROCEDURES:
(1) The District Courts of Colorado may issue both remedies of garnishment and assignments. The writ of garnishment is issued by the judge, clerk, or designated agent of the court. The assignment is accomplished by the judge ordering the obligor to make an assignment and the obligor assigning his wages. If the obligor fails or refuses to execute assignment, the clerk of the court shall execute the same in lieu and instead of the obligor. R. C.P. Rule 70.
(2) Mature, unpaid alimony or support installments due under a divorce decree automatically become final judgment. See Beardshear v. Beardshear, 352 P.2d 969 (Colo. 1960), and Talbot v. Talbot, 394 P.2d 607 (Colo. 1964).
(3) Continuing garnishment is only for collection of arrearages of child support. Sec. 14-14-105. Section 14-14-107, wage assignment, indicates it is for current support, for child support, maintenance where combined with child support, child support debts or maintenance. However, Sec. 14-10-108, which is the original wage assignment statute, refers to both support and maintenance.
(4) C.R.C.P. Rule 103 states that a writ of garnishment may issue without issuance of a writ of execution after judgment. Rule 103, Section 1(c).
(5) C.R.C.P. Rule 103(d) and Rule 4 clearly authorize service of a writ of garnishment by a party other than a sheriff.
(6) The wage assignment is binding on the employer or other payor of the funds 2 weeks after service upon him/her of notice that an assignment has been made. Sec. 14-10-118.
(7) The rules specifically provide a form affidavit and forms for different types of writ of garnishment with interrogatories.
(8) The method orders the debtor to execute an attached wage assignment and deliver it to the Office of the District Attorney within 10 days of the date of the order. In the event the debtor fails or refuses to execute and deliver the attached wage assignment, the order usually provides that the clerk of the court or its deputy pursuant to Rule 70, C.R.C.P., is appointed by the court to execute the wage assignment in place of the debtor. The garnishee must answer the writ as set forth in the writ itself as of date of service. There is no need to appear unless answer is traversed. Continuing garnishments for child support require answer to the court. Sec. 14-14-105.
(9) Wage assignments do not require an answer from employer.
(10) If the garnishee has monies due or owing to the debtor not exempt by federal law, he/she must deliver it to the court.
(11) Wage assignments are usually paid as directed by the court order.
(12) Rule 5, C.R.C.P., and 13-5435-106, 107, places the plaintiff under a duty to provide the debtor with copy of the writ. Of course, under 42 U.S.C. Sec. 659(d), the government is required to notify the debtor as to garnishments and wage assignments.
STATE EXEMPTIONS:
(1) A garnishee is not required to set up or plead any exemption for or on behalf of the defendant except the exemptions under federal law.
(2) Where the spouse ordered to pay support is also supporting a spouse and children other than those mentioned in the order, 50% of such individual's disposable earnings shall be subject to the order. If the individual is not supporting an additional spouse and child, then 60% of such individual's disposable earnings shall be subject to the order. In either case, an additional 5% will be added if the garnishment or wage assignment is designed to enforce an order that is 12 weeks or more in arrears. Sec. 13-54-104(3)(III)(b)(I)(A&B).
(3) The exemptions listed in Sec. 13-54-102 apply to all writs of attachment, execution, and garnishment, except those writs that result from a judgment for arrearages for child support. Sec. 13-54-106.
(4) The nature of exemption requires a written claim setting forth the grounds of such claim of exemption. Sec. 13-55-101 and Sec. 13-54.5-108.
RESPONSIBILITIES AND LIABILITIES OF GARNISHEE:
The garnishment itself does not create special duties running from the garnishee to the debtor.
Here is the website link for a "Writ of Garnishment for Support" form:
www.courts.state.co.us/chs/ court/forms/garnishmentforms/form31.doc
Hope that helps!
