Wage garnishment is governed by state law, and the statutes differ substantially. Three primary options regarding wage garnishment are to consult a lawyer or small claims advisor to fight the garnishment; work out an agreement with the judgment creditor who the court has ordered the individual to pay; or file a form to protect a greater amount of the garnishee’s earnings.
When a creditor has a judgment from a court that states the garnishee owes money, they should not disobey the order of the court. The garnishee could face a contempt of court charge. The penalty for contempt of court differs by state; in California, contempt of court is a misdemeanor, punishable by up to one year in jail, a fine of $1,000, or both.
Objecting to a Wage Garnishment
An individual facing wage garnishment should use specific materials provided by the court to object to the garnishment. They should do a search regarding what materials they need in their state in order to object. For example, in New Jersey, a garnishee must file an Objection to Wage Garnishment and Certification (Proof) of Service. They also need to file a Wage Garnishment Worksheet if money is already being taken from their paycheck, and the amount seems higher than is allowed by law.
The notice regarding the wage garnishment should state the period of time that the individual has to object to the garnishment. This period is usually between five and 30 days. The garnishee may request a court hearing on their objection. An individual facing a wage garnishment should consider consulting a civil attorney versed in this area of the law or read self-help guides published by their state’s courts.
Completing the Objection to Garnishment
A wage garnishment objection letter or a state-specific objection form explains to the opposing party and the court why the person is objecting to the wage garnishment or why they want a reduction in the amount of the wage garnishment. The individual writing the objection should state the objection clearly and without unnecessary content, in invective-free language. They should mail or deliver this form and the other associated forms to the office of the court in the county where the case was filed against them. There is typically no fee for filing an objection to a wage garnishment order.
Claim of Exemption in California
In California, an individual can file a Claim of Exemption, a specific form, with the levying officer, usually the sheriff or marshal who issued the debtor’s Earnings Withholding Order. The Claim of Exemption explains why the wages that the creditor wants to garnish should be exempt, or excluded from garnishment. There are a number of rules that state when exemptions are available.
For example, in California, a garnishee can get an exemption if they show they need their earnings to support themselves and their family. They cannot get an exemption if they owe the debt for past-due child support or if they use their earnings for luxuries that are not necessary for support. A garnishee must provide the levying officer with a financial statement form that shows that the earnings they want to be exempt are needed for support.
Getting a Court Date
After the individual files their objection and associated paperwork with the court, the court will schedule a hearing within a certain time period. In the hearing, the court will determine if the wage garnishment should be reduced or eliminated. In New Jersey, for example, the time period is within seven days of the filing. The individual against whom the garnishment was filed may be required to appear in court on this date.
Certain states allow an attorney to appear in the client’s place. If the individual or their attorney does not appear in court on the scheduled date, the objection may be dismissed. The individual or their attorney should bring all their evidence with them in case they need to support the objection.
Protecting a Bank Account
A creditor can collect money from a debtor’s bank account. The creditor will need to know the branch where the account is held and the account number. A debtor has a specific time period, which differs by state, to oppose the bank levy before the sheriff sends the money to the creditor. In California, the debtor can file a Claim of Exemption to stop the bank levy. Just as for a wage garnishment, the court may hold a hearing to decide whether to turn the money over to the creditor.
Lien on Real Property
A creditor can also collect a debt by filing a lien on the debtor’s real property. If the debtor tries to sell or refinance their home, for example, the creditor will receive the amount of the judgment plus accrued interest from the escrow. A creditor can “foreclose” on a judgment lien. In this situation, the creditor forces the debtor to sell the property and pay their debt with the proceeds. In order to be clear of the debt, there must be enough equity in the property to pay the lien in full and the cost of foreclosure.
Renewal of a Judgment
A money judgment is invalid after a certain period. The length of time for which a judgment is valid is determined by state law. In California, a money judgment is valid for 10 years from the date from which it was issued. A creditor has to file a request for renewal of a judgment with the court before the 10 years are up.
If the creditor does not renew the judgment, it is no longer enforceable. Once a judgment has been renewed, it cannot be renewed again until five years have passed. This time period is also state-specific.
Garnishments Related to Child Support
An individual who faces a wage garnishment that is related to child support can file a motion with the court to change their child support order. Such a change is called a modification. They will have a good case to show the need for a reduction if they saw a substantial reduction in hours, lost their job, were incarcerated or had a child from another relationship. The individual can contact a family law facilitator for assistance with the paperwork.
An individual without a written agreement, or stipulation, that has been approved and signed by a judge to a child support amount that is less than the legal guideline amount must show that there has been a change in circumstances since the last child support order was made. If there is a written stipulation, an individual can ask to change that amount at any time. They do not need to show a change in circumstances.
The judge has to sign a new court order to actually change the prior amount and order regarding child support. There are serious consequences for being able to pay child support but willfully choosing not to pay it. In California, an intentional failure to pay is likely to result in the wrongdoer being charged with contempt of court.
The IRS Wage Garnishment Procedure
The U.S. Internal Revenue Service (IRS) has special powers to garnish wages, which it calls wage levies. Unlike a private creditor, like a bank, the IRS does not need to get a court order to garnish wages. The IRS is required to give a garnishee written notice and an opportunity to pay their debt. The notice must contain itemized amounts stating what the garnishee owes for taxes, penalties and interest and the date by which the garnishee must pay in full.
If a garnishee does not pay within the requisite time, the IRS may garnish their wages. It may also seize future refunds or the garnishee’s assets and place liens on the garnishee’s property. A garnishee should consider hiring a tax attorney who specializes in cases relating to federal taxes to handle this situation. Typically, tax attorneys work to negotiate with the IRS to determine a payment plan that will work for the garnishee.
If the individual has their wages garnished, part of their wages will be sent to the IRS each pay period. This will continue until the individual either makes other arrangements to pay the amount of overdue taxes; they or another party pays off the amount of overdue taxes; or the levy is released. The amount that an individual is allowed to retain from their paycheck is called the exempt amount.
Consumer Credit Protection Act
The Consumer Credit Protection Act is a set of federal laws that limits the amount of an individual’s earnings that a creditor can garnish. The laws limit the garnishment of disposable earnings, defined as the amount of earnings remaining after all legally required deductions are made. Such deductions include federal, state and local taxes, an employee’s share of Social Security, Medicare and State Unemployment Insurance tax and withholding for employee retirement systems, as required by law.
The limitations on garnishment do not apply to certain bankruptcy court orders or garnishments to recover debts for state or federal taxes. There are different limitations for garnishments pursuant to court orders for child support or alimony.
How Much Can Be Garnished?
State law also determines the amount of wages that a creditor can garnish. In New Jersey, a garnishment is generally 25 percent of an employee’s net pay or 10 percent of their gross pay, whichever is less. In California, garnishment is limited to 25 percent of an employee’s weekly earnings or 50 percent of the amount by which their earnings exceed 40 times the minimum wage, whichever is less. In the District of Columbia, garnishment is limited to 25 percent of the amount by which the employee’s disposable wages exceed 40 times the minimum hourly wage.
Bankruptcy as an Option
An individual who is considering a Chapter 7 bankruptcy, or personal bankruptcy, as an option to wage garnishment should consult a bankruptcy attorney. The attorney can advise them of the many consequences of filing for bankruptcy, including receiving a lower credit score.
When an individual files a petition under Chapter 7, the court stops certain collection actions, including wage garnishments. The bankruptcy clerk gives notice of the bankruptcy case to all the creditors that the debtor lists. To ensure that the creditors receive notice of the bankruptcy, the debtor must provide the court with the creditors’ names and addresses.
COVID-19 and the Wage Garnishment Process
A number of states have instituted stops to wage garnishment due to the COVID-19 pandemic. The types of suspensions differ by state. For example, Minnesota suspended wage garnishments for consumer debts like loans and credit cards. The District of Columbia prohibited creditors from initiating, threatening garnishment or acting on a garnishment until the COVID-19 emergency ends, with an end date to be determined by the District’s own legislation.
Suspensions may begin to lift as the U.S. reopens during the economic recovery period. An individual or their attorney should look up whether their state has suspended wage garnishment and when the suspension ends. For example, California's Franchise Tax Board temporarily suspended collection activities as of February 22, 2021 until July 31, 2021. Debts for child support are the exception and will continue to be collected.
- United States Department of Labor: Fact Sheet #30 -- The Federal Wage Garnishment Law, Consumer Credit Protection Act's Title 3 (CCPA)
- California Courts: Wage Garnishment / Earnings Withholding for Employers
- California Courts: If You Do Not Pay Your Judgment
- California Penal Code Section 166: Civil Contempt
- U.S. Internal Revenue Service: Information About Wage Levies
- California Franchise Tax Board: State Suspends Certain Debt Collection Activities
- Bloomberg Tax: Growing Number of States Suspend Garnishments During Virus Crisis
- United States Courts: Chapter 7 - Bankruptcy Basics
- New Jersey Courts: How to Object to a Wage Garnishment
- California Courts: Paying a Child Support Order
- California Courts: Collecting the Judgment
- California Courts: Form WG-003, Employee Instructions
- California Courts: Claim of Exemption
- California Legislative Information: Senate Bill No. 616
- California Courts: Changing a Child Support Order
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.