"My Wages Were Just Garnished! Is Filing Bankruptcy The Only Way To Stop My Wages From Being Garnished?"

April 28, 2012

iStock_000017413305XSmall.jpgAt the Law Office of Linda C. Garrett, a virtual online law office, providing full-scope and limited-scope legal services in the practice areas of consumer law, bankruptcy, mortgage (HAMP) and family law, I receive about one to two calls per month about wage-garnishment issues. The next statement that usually comes out of the prospective client's mouth, after they have informed me that they just learned their wages were garnished, is, "what's the soonest I can file bankruptcy?" As all my clients know, I only recommend bankruptcy when it is necessary. For me, bankruptcy is necessary only when the person has no other option to stop the garnishment. For many individuals, they are surprised to learn that they can stop the wage garnishment without filing bankruptcy. It is possible? Yes, it is!

Before I continue, let's discuss the basics of a wage garnishment.

Defined

Basically, a wage garnishment is a legal procedural that allows the judgment-creditor to garnish the wages of the judgment-debtor (employee). A judgment creditor is anyone that the debtor owes money to, such as a bank, credit-card company, spouse (for child support and/or spousal support).

Types of Wage Garnishment

  • For payment of judgment from consumer creditor

This blog post focuses on consumer-related judgments only. For information on family-law garnishments, go to my California Family Law and Divorce Blog and sign up to receive new blog posts by mail. The courts and law treat judgments for support orders differently from judgments from creditors.

Enforcement of Wage Garnishment

After a judgment-creditor has obtained a "writ of execution" from the judge, the judgment-creditor is free to take all legal steps allowed to him under the law to collect on the judgment.

If an employer is served with a Writ of Execution to garnish wages, then the employer has no choice, but to comply. That's the law. If the employer fails to comply, then the employer risks incurring financial liability as well. Wage garnishments are serious tools in the judgment-creditor's arsenal. Luckily, there are ways to prevent a judgment-creditor from getting a penny of the debtor's wages.

Most individuals, who receive notice that their wages are going to be garnished, begin panicking. Usually, their next thought afterwards is to consider filing for bankruptcy--as the mere thought of losing any of their hard-earned wages is frightening and overwhelming to them.

First, it is important to know that a creditor can only garnish no more than 25% of the employee/judgment-debtor's discretionary income. Usually this means no more than 25% of their take-home pay. Not 25% of their gross income. This is a very important distinction.

For most individuals these days, the take-home pay barely covers the employee's and his family's basic necessities. In other words, after paying rent, groceries, transportation, and child-care, etc., there is nothing left over. The law states that payment of necessities of life are considered basic needs and are therefore exempt (protected) from being touched by judgment-creditors. So, if all take-home pay goes towards paying for basic necessities, then there is no "discretionary" income left over from which to pay creditors. In other words, 25% of zero, is zero!

To protect exempt funds, it is important that the employee/judgment-debtor file a timely Claim of Exemption form.

On a final note, time is of the essence once the wage-garnishment order has been served on the employer. The employee/judgment-debtor must act swiftly if he is to prevent the judgment-creditor from touching any of his wages.

The benefits of challenging a wage garnishment are many. For most, not having to file bankruptcy is the primary benefit.

Need Help?

At the Law Office of Linda C. Garrett, we are able to assist individuals facing garnishment of their wages by providing consultations and coaching services (a form of unbundled legal services) in connection with the preparation of a Claim of Exemption form. As a preliminary measure, we provide an analysis of the pros and cons of filing a Claim of Exemption form--to include whether the judgment-debtor qualifies to exempt his or her wages. Coaching also includes identifying common mistakes made by judgment-debtors when filling out the Claim of Exemption form and Financial Statement form. We are also available to explain the various procedures and deadlines in connection with the preparing and submission of a claim of exemption form to include, but not limited to, identifying red-flag expenses, raising possible objections by the judgment-creditor, responding to a "Notice of Opposition to Claim of Exemption", preparing for an Examiner's Hearing--in the remote chance a judgment-creditor schedules one with the court.

Some helpful links:

Contact the Law Office of Linda C. Garrett--to set up a 30-minute free consultation or paid consultation

Services--to learn the types of services the Law Office of Linda C. Garrett provides

Practice Areas--to determine the other areas of law the Law Office of Linda C. Garrett can provide consumers.

Attorney Profile--to learn more about Ms. Garrett, Ms. Garrett's goals, Ms. Garrett's philosophy and how she "Gives Back".

Other Blog Posts Related to Garnishment Issues:

How Do I Know if Debt Settlement Is Right For Me?

What Does the Term 'Judgment Proof" Really Mean and Should I File Bankruptcy if I am Judgment Proof?


Are You Judgment-Proof? Take the Test