It’s payday but something doesn’t look right. Your paycheck appears smaller than it should. And, you notice the paystub lists a deduction for Wage Garnishment. It is not the end of the world. You still have options. The following is a summary of the Wage Garnishment process and the options still available to you.
If a judgment creditor wants to garnish your wages, then it must be just that…a judgment creditor. Ordinarily, a creditor cannot garnish your wages unless it has a judgment against you. A judgment creditor is someone you owe money to that also has a judgment against you for the debt. So the creditor sued you for the debt and was awarded a judgment by the Court.
Motion for Writ of Garnishment and Notice to Defendant
A judgment creditor must ask the Court to garnish your wages by filing a motion for writ of garnishment. If the defendant is an individual, then the judgment creditor must send the defendant copies of the motion for writ of garnishment, the writ of garnishment, and the Notice to Defendant form. The defendant must be served the documents by US Mail at his or her last known address within five (5) business days of the writ being issued or within three (3) business days of the employer being notified (whichever is later).
The Notice to Defendant form advises the defendant of his or her rights as well as includes a form for the defendant to claim any applicable exemptions. The Notice to Defendant form is critical to a wage garnishment. A wage garnishment may be dissolved if the judgment creditor fails to provide the defendant the requisite, statutory notice or fails to timely provide the notice. Unfornately, the judgment creditor could seek another writ of garnishment to cure notice errors.
Claim of Exemptions
The defendant has twenty (20) days after receiving the motion for writ of garnishment, writ of garnishment, and Notice of Defendant form to file a Claim of Exemptions. If the defendant does not fie a Claim of Exemptions or does not file it timely, then the wage garnishment will proceed unchallenged and only subject to Federal Garnishment Limitations.
However, a timely-filed Claim of Exemptions requires action by the judgment creditor. The judgment creditor must file a sworn statement contesting the Claim of Exemptions. Otherwise, the writ of garnishment is automatically dissolved by the Clerk of Court. If the judgment creditor is hand-delivered the Claim of Exemptions, then it has three (3) days to file the sworn statement. But the judgment creditor has eight (8) days to file the sworn statement if mailed the Claim of Exemptions. A hearing will be scheduled to address the Claim of Exemptions if the judgment creditor timely files a sworn statement.
Head of Family Exemption
The head of family exemption makes disposable earnings exempt from wage garnishment. However, you must raise this exemption by timely filing a Claim of Exemptions.
- $750 per week
Disposable earnings of the head of family which do not exceed $750 per week are exempt from garnishment. “Disposable earnings” are your earnings after deduction of payroll taxes.
2. More than $750 per week
Disposable earnings of the head of family which exceed $750 per week are exempt from garnishment unless the exemption was waived in writing. The creditor may include a waiver clause in the original loan documents. Nevertheless, a waiver clause may not be enforceable if the defendant did not have reason to know the waiver was included in the loan documents.
The “head of family” includes a person that provides more than one-half of the support for a child or other dependent. The head of family does not have to be married. The head of family does not have to live with the child or dependent. In fact, the head of family does not have to be a Florida resident. In addition, the child or dependent is not limited to minors. The child or dependent may be an adult provided the defendant provide more than one-half of the child or dependent’s support.
Hearing on Claim of Exemptions
If the judgment creditor timely contests the Claim of Exemptions, then a hearing is scheduled. The defendant has the burden to prove that the head of family exemption is proper. The hearing is very fact-intensive, and the head of family exemption may be applied liberally by the courts. However, please note that the prevailing party may be awarded attorney fees by the court.
Bankruptcy also stops a wage garnishment. If a Claim of Exemptions is not appropriate in your case, it was unsuccessful, or you failed to file it timely, then a Chapter 7 or 13 Bankruptcy may be a fall back option. However, you must qualify for a Chapter 7 and 13 Bankruptcy. Contact an experienced bankruptcy attorney to discuss your bankruptcy options. The Law Office of Brent M. Myer provides free bankruptcy consultations.