Proceeding Against the Debtor’s Salary – Garnishment of Salary
A. Impact of a wage garnishment
B. Limits on wage garnishment
If the debtor is working, he may be able to intercept a portion of his wages to satisfy his judgment. This process is known as wage garnishment. You can garnish wages relatively quickly and cheaply if:
- The judgment debtor works as an employee (not an independent contractor)
- The work of the judgment debtor produces a payment above the poverty line
- Other wage garnishments are not yet in effect (unless your wage garnishment is for child or spousal support)
- The debtor does not quit the job, contest the wage garnishment, or file for bankruptcy.
A wage garnishment requires little effort on your part. You give the garnishment officer information about where the judgment debtor works, provide a Writ of Execution and copies, and pay a modest fee. So just wait; the collection officer collects the money from the employer and gives it to you. You can always lift the wage garnishment if you and the judgment debtor agree to voluntarily pay the judgment.
A wage lien can generally provide you with about 25% of the judgment debtor’s disposable income. Of course, if some or all of the debtor’s income is determined to be exempt, he or she will actually receive less.
There are special laws that govern wage garnishments for child or spousal support. These liens can reach up to 50% of the judgment debtor’s disposable income and have first priority. Therefore, if a non-support lien is already in place, you can supersede that lien if your judgment is for support and receive up to 60% of the debtor’s wages.
Garnishment of the wages of the spouses: If you have a judgment against someone who is married, you need a court order to garnish the spouse’s wages (CCP § 706.109). Naturally, this restriction does not apply if both spouses are named as judicial debtor in the court judgment.
A. Impact of a wage garnishment
Their power to garnish the judgment debtor’s wages is often a strong impetus for the debtor to pay his judgment, as he may want to avoid the embarrassment and inconvenience of having his wages interfered with. Also, despite a federal law that prohibits employers from firing employees for wage garnishments resulting from a single ruling, most employees rightly believe that a garnishment won’t earn them points with their bosses.
And they can be fired for multiple wage garnishments from different lawsuits. Therefore, even the most uncooperative judgment debtor may be willing to pay voluntarily if faced with the prospect of wage garnishment.
But a wage garnishment could push a debtor out of a job or lead a debtor into bankruptcy. The loss of part of a paycheck, coupled with the embarrassment of having an employer know about their financial problems, can cause a debtor to look for a quick fix to relieve the Pressure. If you choose to garnish wages, remember that you are often walking a fine line between making great progress in collecting your judgment and closing off collection.
The debtor probably won’t go bankrupt or quit their job if the debtor has too much at stake. This would likely hold true for a debtor who is a well-established member of the community without a long list of other debts, an employee of an established corporate business in which he/she has significant ownership, or an owner of real estate in which he/she has significant capital.
B. Limits on wage garnishments
Federal debtor protection laws limit the amount of any person’s wages you can take at any one time. Unless your judgment is for child or spousal support, you can garnish up to 25% of the debtor’s share of net wages, beyond the minimum.
If your judgment is for child or spousal support, you have the right to garnish at least 50% of the judgment debtor’s disposition wages above the federal minimum. If the debtor is not currently supporting a child or spouse, it is possible to get up to 65% of the judgment debtor’s wages for support (CCP § 706.052(c)).
Here are some potential pitfalls in the wage garnishment process:
Prior seizure by other creditors: You cannot garnish wages if they are already being garnished by another creditor, unless you are a former spouse seeking alimony or child support payments. Typically, if your garnishment is second in line, it will be rejected by the employer and you will have to refile when the garnishment from the previous creditor ends. Please note that an employee can be terminated for two separate wage garnishments.
California exemption law: The debtor has the legal right to show that the portion of their wages that is above the federal minimum should be exempted because it is necessary for their own support or the support of a spouse or children. However, the debtor may not qualify for this type of exemption if the judgment itself stems from a debt incurred for the necessities of life.
Federal Workers: Until February 1994, you could not garnish the wages of federal employees (except Postal Service and Federal Housing Administration employees) or people in the military. You can now garnish federal workers’ wages (USC §5520a)
Under the interim federal regulations that govern the federal garnishment process, you can have the federal agency employer hand-deliver your income withholding order in person or by certified or registered mail, return receipt requested. The service must be made to the official designated by the agency to accept the service; Call the agency and ask. The agency itself does not need to be named on the order. You must properly identify the federal worker whose wages are being garnished, or the income withholding order will be returned to the issuing court.
The regulations suggest that the following information about the debtor be provided:
- Full name
- Birthday date
- Employment or social security number
- Component of the agency for which the debtor works
- Location of duty station or official place of work
- Home address.
The agency is supposed to respond to the lien within 30 days. The lien is effective as of the date it is served, but is subject to all other liens served before the date. Child and spousal support garnishments always have first priority.
The amount that can be garnished is based on the federal worker’s wages after subtracting the following deductions:
- mandatory deductions
- Deductions for amounts owed to the federal government
- taxes withheld
- health insurance premiums
- Normal retirement contributions
- Normal life insurance premiums
If the amount remaining after all these deductions is $127.50 per week or less, then no garnishment will be made.
Military Service Notes: Although the interim regulation described above for federal employees covers civilian employees of military employers, it does not cover actual members of the armed forces. To garnish the wages of a member of the armed forces, you will need to ask the particular service about their specific procedures.
Waiver for seamen/dockers: The salary of seamen, stevedores or port workers cannot be garnished.
Waiver of Benefits and Pensions: Unless your judgment is for child or spousal support, you cannot garnish unemployment benefits, workers’ compensation claims or awards, relocation benefits, health or disability insurance benefits, or most plans. of retirement.
What does all this mean for you, the judgment creditor? Simply that the debtor can challenge his lien. Depending on the debtor’s status, the type of income, and the amount of your payment, this may or may not be an issue for you. However, the fact that there are obstacles means that many judgment creditors consider it in their interest. contact debtors at least once to try to reach an agreement before initiating a wage garnishment.
The information and documents used in this article are examples only. All substantive information must be tailored to your particular case. THERE IS NO INTENT TO PROVIDE LEGAL ADVICE IN THIS ARTICLE. TREATMENT OF INFORMATION AS LEGAL ADVICE MAY HAVE ADVERSE CONSEQUENCES.
AGENCY COLLECTION, TRIAL COLLECTION
