Garnishments Law and Legal Definition
Garnishment is a legal proceeding whereby money or property due to a debtor but in the possession of another is applied to the payment of the debt owed to the plaintiff. A court order of garnishment allows a creditor to take the property of a debtor when the debtor does not possess the property. A garnishment action is taken against the debtor as defendant and the property holder as garnishee. Garnishment is regulated by statutes and a plaintiff can initiate a garnishment action as a means of either prejudgment seizure or postjudgment collection. All properties are not subject to garnishment. Exemptions are created by statutes to avoid leaving a debtor with no means of support.
Wage garnishment is a legal procedure in which a person’s earnings are required by court order to be withheld by an employer for the payment of a debt such as child support. Title III of the Consumer Credit Protection Act (CCPA) prohibits an employer from discharging an employee whose earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it.
Title III protects employees from being discharged by their employers because their wages have been garnished for any one debt and limits the amount of employees' earnings that may be garnished in any one week. It does not, an employee is only protected from discharge if the employee's earnings have been subject to garnishment for the first time.
Title III applies to all individuals who receive personal earnings and to their employers. Personal earnings include wages, salaries, commissions, bonuses, and income from a pension or retirement program, but does not ordinarily include tips.
The procedure to obtain a garnishment order is determined by state law. However, federal law determines how the garnishment order is applied to military pay, i.e., how service or process is accomplished, the type of pay subject to garnishment, etc. Less than the full amount ordered may be received by an ex-spouse under an alimony/support garnishment if the payor does not have sufficient disposable earnings to allow the deduction of the full amount. The Consumer Credit Protection Act (15 U.S.C. § 1673) limits the amount that can be deducted as child support/alimony from earnings. The limit ranges from 50 percent (50%) of disposable earnings to sixty-five percent (65%). The full ordered amount of child support/alimony will be deducted as long as that amount does not exceed the maximum percentage allowable.
There are different types of garnishments, as defined by state laws, which vary by state. A garnishment may be made on a one-time or continuing basis. For example, one jurisdiction provides as follows in regard to child support:
- "CSE has the authority to seize the income of a person ordered to pay child support to satisfy past due obligations by requesting the Court to issue a continuing Writ of Garnishment. Up to 65% of this person's disposable earnings may be taken depending upon the family situation and age of past due support.
- CSE has the authority to use a one-time garnishment by requesting the Court to issue a Writ of Garnishment with Notice of Exemption and Pending Levy. This is executed on non-income, personal property such as bank accounts for the payment of past due child support."
Some kinds of income are exempt, which means that they cannot be garnished at all by creditors for consumer debts. For example, welfare, unemployment, veterans benefits, Social security, workers' compensation, pensions, and child support payments that you receive cannot be garnished for consumer debts.