Hardship Due to a Wage Garnishment

By Samantha Kemp
Be prepared to explain financial hardship to the judge.

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Federal law allows a creditor who has obtained a judgment for a debt to **garnish up to 25 percent of an employee's disposable earnings** or the amount by which the debtor's weekly disposable earnings exceed 30 times the federal minimum wage, whichever is smaller. Cutting as much as one-fourth of an employee's take-home pay can take an extreme toll on the family's finances, so some states allow debtors to prevent the total or partial garnishment of their available disposable wages.

State Hardship Laws

Some states have specific laws permitting exemptions from garnishment for reasons of financial hardship. For example, Oklahoma requires a person to show that all of his income goes to support his family in order to qualify for a hardship exemption. Florida law requires the debtor to be the head of the household to qualify for an exemption. He must show that he has a moral or legal obligation to support another person and that he provides half of that person's financial support. Georgia grants a hardship exemption when the debtor's circumstances have materially changed due to disability, divorce or catastrophic illness. Other states generally prohibit garnishment of low-income debtors.

File the Necessary Court Paperwork

Review any instructions related to claiming exemptions or making objections that are contained in the garnishment notice you received. These instructions often include information related to a filing deadline, what must be included in the objection and where the paperwork must be filed. You can also be required to provide the creditor or employer with copies of your written objections or claim of exemption. Ask the court clerk for additional information regarding exemptions and objections to garnishment proceedings. Some jurisdictions use standard forms, while others can require you to prepare your own court documents. You may also have to submit a financial disclosure form with the claim for exemption.

Attend the Hearing

If the creditor contests a claim for exemption, the court will likely hold a hearing on the matter. In some states, the hearing is automatically scheduled as part of the writ of garnishment. The debtor must appear at the hearing and explain why the exemption applies to him. He should bring evidence to support his claim, such as check stubs and receipts for payments of household expenses. The judge can decide to terminate the garnishment or to reduce the amount of money that will be taken from each paycheck.

Student Loans

Federal law allows up to 15 percent of a debtor's weekly disposable earnings to be garnished for defaulted student loans. Unlike with other types of debts, garnishments for defaulted student loans can be issued without a court judgment. However, the Department of Education, or other lending agency, must provide the debtor with notification prior to the garnishment. To claim a financial hardship exemption for student loan garnishment, the debtor must complete a financial disclosure form and request a hearing.

About the Author

Samantha Kemp is a lawyer for a general practice firm. She has been writing professionally since 2009. Her articles focus on legal issues, personal finance, business and education. Kemp acquired her JD from the University of Arkansas School of Law. She also has degrees in economics and business and teaching.

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