(750 ILCS 28/35)
Sec. 35. Duties of payor.
(a) It shall be the duty of any payor who has
been served with an income withholding notice to deduct and pay over income as
provided
in
this Section. The payor shall deduct the amount designated in the
income withholding notice, as supplemented by any
notice provided pursuant to subsection (f) of Section 45,
beginning
no later than the next payment of income which is payable or creditable to
the obligor
that occurs 14 days following the date the income withholding notice was
mailed, sent by facsimile or other electronic
means, or placed for personal delivery to or service on the
payor. The payor may combine
all amounts withheld for the benefit of an obligee or public office into a
single payment and transmit the payment with a listing of obligors from
whom withholding has been effected. The payor shall pay the amount withheld
to the State Disbursement Unit within
7 business days after the date the
amount would (but for the duty to withhold income) have been paid or credited
to the obligor. If the payor knowingly fails to withhold the amount designated
in the income
withholding notice or to pay any amount withheld to the
State
Disbursement Unit within
7 business days after the date the amount would have been paid or credited to
the
obligor, then the payor shall pay a penalty of $100 for each day that the
amount designated in the income withholding notice (whether or
not withheld by the payor) is not paid to the State Disbursement Unit after
the period of
7 business days has expired. The total penalty for a payor's failure, on one occasion, to withhold or pay to the State Disbursement Unit an amount designated in the
income withholding notice may not exceed $10,000. The failure of a payor, on
more than one
occasion, to pay amounts withheld to the State Disbursement Unit within
7 business days after the date the amount would have been paid or credited to
the
obligor creates a
presumption that the payor knowingly failed to pay over the amounts. This
penalty may be collected in a civil action which may be brought against the
payor in favor of the obligee or public office. An action to collect the penalty may not be brought more than one year after the date of the payor's alleged failure to withhold or pay income.
A finding of a payor's nonperformance within the time required under
this Act must be documented by a certified mail return receipt
or a sheriff's or private process server's proof of service showing the date
the income withholding notice was served on the payor.
For purposes of this Act,
a withheld
amount shall be considered paid by a payor on the date it is mailed by the
payor, or on the date an electronic funds transfer of the amount has been
initiated by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall provide the
State Disbursement Unit, at the time of
transmittal, with the date
the amount would (but for the duty to withhold income) have been paid or
credited to the obligor.
After June 30, 2000, every payor that has 250 or more employees shall use
electronic funds transfer to pay all amounts withheld under this Section.
During the year
2001 and during each year thereafter, every payor that has fewer than 250
employees
and that
withheld income under this Section pursuant to 10 or more income withholding
notices
during December of the preceding year shall use electronic funds transfer to
pay all
amounts withheld under this Section.
Upon receipt of an income withholding notice requiring that a
minor child be named as a
beneficiary of a health insurance plan available through an employer or labor
union or trade union, the employer or labor union or trade union shall
immediately enroll the minor child as a beneficiary in the health insurance
plan designated by the income withholding notice. The
employer shall withhold any required
premiums and pay over any amounts so withheld and any additional amounts the
employer pays to the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within 15 days of
enrollment or upon request, notice of the date of coverage, information on the
dependent coverage plan, and all forms necessary to obtain reimbursement for
covered health expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the insurance coverage is
terminated or changed for any reason, the employer or labor union or trade
union shall notify the obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to receive a fee
not to exceed $5 per month to be taken
from
the income to be paid to the
obligor.
(b) Whenever the obligor is no longer receiving income from the payor,
the payor shall return a copy of the income withholding
notice to the obligee
or public office and shall provide information for the purpose of enforcing
this Act.
(c) Withholding of income under this Act shall be made without
regard
to any prior or subsequent garnishments, attachments, wage assignments,
or any other claims of creditors. Withholding of income
under this Act shall not be in excess of the maximum amounts
permitted under the federal Consumer Credit Protection Act.
Income available for withholding shall be applied first to the current
support obligation, then to any premium required for employer, labor union, or
trade union-related health insurance coverage ordered under the order for
support, and then to payments required on past-due support obligations. If
there is insufficient available income remaining to pay the full amount of the
required health insurance premium after withholding of income for the current
support obligation, then the remaining available income shall be applied to
payments required on past-due support obligations.
If the payor has been served with more than one income
withholding notice
pertaining to the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving priority to current
support payments.
A payor who complies with an income withholding notice that is
regular on its
face shall not be subject to civil liability with respect to any individual,
any agency, or any creditor of the obligor for conduct in compliance with the
notice.
(d) No payor shall discharge, discipline, refuse to hire or otherwise
penalize any obligor because of the duty to withhold income.
(Source: P.A. 96-53, eff. 1-1-10; 97-994, eff. 8-17-12.)
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