What should I know about garnishment?

Contents

• What is garnishment?
• When does a creditor NOT need a court judgment to garnish your wages or money?
• What are my rights and responsibilities?
• What are the creditor's rights and responsibilities in garnishment?

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What is garnishment?

Garnishment is a legal process that the creditor can use if the creditor has a court order against you. This is also called a judgment for money. Garnishment allows a  creditor to take wages or money in bank accounts to pay a debt. If a creditor garnishes your wages, they can either:

• ask your employer to withhold a percentage of your paycheck until the debt is paid in full, or

• Take money, up to the amount you owe, from your bank account. 

 

For most kinds of debts, the creditor must have a judgment for money before it can take any of your wages or money. A creditor gets a judgment for money against you by suing you and winning the case. 

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When does a creditor NOT need a court judgment to garnish your wages or money?

There are a few situations where a creditor can garnish your wages without a court judgment. A creditor, generally the government or co-parent, does not need a court order to garnishment order for:

• unpaid income taxes

• court-ordered child support and arrears, and

• defaulted student loans.

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What are my rights and responsibilities?

You have the right to get notice that you are being sued over a debt.You can ask to have the judgment for money overturned, or vacated: 

• If you have never received a notice that you were being sued, or

• If there was some other good reason why you did not respond.

The creditor may sue you again, but this time you will know about it and you can defend yourself. 

 

 If the creditor obtains a valid judgment for money against you have a right to get notice of the garnishment. The creditor must send you copies of:

• the garnishment affidavit, 

• the summons, 

• the Notice to Defendant of Right Against Garnishment of Money, Including Wages, and Other Property, and 

• the Defendant’s Claim Form.

 

Two copies of these documents must be sent to your last known address by both: 

• regular mail and 

• by registered or certified mail or statutory overnight delivery, return receipt requested.

 

If you are being garnished, you have the right to file a written objection with the court. Some reasons for filing a written objection might be: 

• that you have already paid the debt off, or 

• that you don’t owe the money for some other reason. 

• that the money is exempt under state or federal law. You should identify the specific law that exempts the money.

 

Objecting to a garnishment can be very complicated and the deadlines can be very short. If possible, you should try to get a lawyer to help you. In Georgia, the objection to the garnishment could be called a traverse or an affidavit, depending on the circumstances.

 

Even if the creditor has a proper judgment for money, you have the right to protect some of your income and assets from garnishment. There are limits on the amount of money that can be garnished and there are some types of income that cannot be garnished at all. You are responsible for filing a claim called a traverse or an affidavit with the court, stating the reasons you believe certain money is exempt from garnishment.

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What are the creditor’s rights and responsibilities in garnishment? 

It is the creditor’s responsibility to get a judgment for money against you before they can garnish your wages or bank account.

 

The creditor cannot garnish money that is exempt from garnishment. The creditor must give proper notice of the garnishment.

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Contents

• How much of my wages can be garnished?
• What garnishment exemptions are available in Georgia?
• What income is exempt?
• What federal and state benefits are exempt from garnishment?
• How can I claim an exemption?
• How can I protect my exempted money from garnishment?
• Can filing bankruptcy stop garnishment?

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How much of my wages can be garnished?

At the most, a creditor only take the lesser of these amounts:

• 25% of your weekly take home pay, or

• What’s left when you subtract $217.50 from your weekly take home pay.

 

You have the right to keep this much, even if more than one debt collector is garnishing your wages. If you owe child support or alimony, the amount that can be garnished from your wages is much higher. 

 

If you have money in a bank account, the creditor can ask the court for an order garnishing any money in your account that is not exempt. 

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What garnishment exemptions are available in Georgia?

The law protects certain types of income and property from garnishment by creditors. These funds cannot be taken from you to pay off a debt, even one a court has said you owe. We call these funds "exempt."

 

There are a few exceptions to these exemptions for:

• child support, 

• federal student loans, and 

• some other debts to the federal government.

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What income is exempt?

These are general exemptions. Every case is different. See a lawyer for advice about your specific situation.

 

The following types of income or money cannot be taken from you to pay off a debt:

• Social Security disability and retirement benefits (unless you owe child support or, federal student loans, or a federal tax debt)

• SSI benefits

• TANF benefits (state welfare)

• Unemployment Compensation (unless you owe child support)

• VA benefits (with some exceptions for money you owe the government or for support)

• Student Loans

• Child Support you receive

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 What federal and state benefits are exempt from garnishment?

Here is a list of possible exemptions to help you keep more of your money. Review this list to see if your wages or bank account include any of these exemptions. 

 

Georgia state exemptions:

• Disposable earnings

• ERISA qualified retirement and pension benefits

• Unemployment benefits

• Workers compensation

• Joint account holder

• Child support

• Crime victim compensation funds

• Wages due to a deceased employee of the state up to $2500.00

• Disability insurance benefits, $250/month during disability,

• Charitable or fraternal society benefits paid to beneficiary,

• Cash value/ benefits payable to life insurance policy beneficiary,

• State pensions including:

  • State or local government employees under ERS,

  • Teachers and public school employees,

  • Firefighters,

  • Members of the general assembly,

  • District attorneys,

  • Superior court clerks,

  • Sheriffs and peace officers,

  • Judges and probate judges

 

Federal Exemptions

• Social Security Retirement, Social Security Disability Insurance (SSDI, and Supplemental Security Income (SSI)

• Veterans Benefits 

• Veterans Survivor Annuities

• Federal Civil Service Retirement Benefits

• Federal Civil Service Survivor Annuities 

• Railroad Retirement Act Benefits 

• Longshore And Harbor Worker’s Compensation Benefits 

• Merchant Seamen Protection And Relief Act Benefits 

• Compensation For Injury/Death Of U.S. Contractor Outside U.S. 

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How can I claim an exemption?

If you want to claim an exemption, you must:

• Complete the Defendant's Claim Form that the creditor sent to you. 

• File the completed claim form with the Clerk of Court's office in your county AS SOON AS POSSIBLE. You may lose your right to claim an exemption if you do not file your claim form within 20 days after the Garnishee's Answer is filed or if you do not mail or deliver a copy of your completed claim form to the Plaintiff and the Garnishee at the addresses listed on this notice. 

 

The court will schedule a hearing within ten days from when it receives your claim form. The court will mail you the time and date of the hearing at the address that you provide on your claim form. You may go to the hearing with or without an attorney. You will need to give the Court documents or other proof that your money is exempt. 

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How can I protect my exempted money from garnishment?

Some exempted benefits are automatically protected by your bank. As long as they are automatically deposited into your account, the bank cannot turn over some federal benefits, including:

• Social security,

• Supplemental Security Income,

• Veterans benefits,

• Federal Railroad benefits,

• Civil Service Retirement benefits,

• Federal Employee Retirement benefits.

 

The bank must protect two months worth of these benefits from creditors. If your federal benefits are loaded onto a prepaid card, these are automatically protected from garnishment.

 

There are two exceptions to the protection for federal benefits.

1. Social Security and Social Security Disability Insurance can be garnished to pay for:

   1. Government debts (back taxes or student loans), and

   2. Child or spousal support.

2. If you receive your benefits by check, the bank will not automatically protect this money. You must go to court to prove the money comes from protected benefits.

 

Most pensions are exempt from garnishment even after they are sent to you. But some are not. Do not have pension checks direct deposited into a bank account, if possible. See if the pension fund can mail pension checks directly to your home.

 

Keep exempt fund separate from other money. Even if exempt funds are in a bank account with other non-exempt  funds, they are generally still off limits. But your exempt funds are more likely to be improperly garnished if the are not separate.

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Can filing bankruptcy stop garnishment?

One of the most important protections a person gets from filing bankruptcy is something called the automatic stay. The stay is like a protective shield that goes up around the debtor at the moment the bankruptcy case is filed. While the stay is in place, creditors are not allowed to attempt to collect against the debtor or take the debtor’s property unless they first get permission from the bankruptcy court. If you’ve been sued or garnished, this means that any action being taken against you has to stop, unless the creditor gets permission from the bankruptcy court (by filing what is called a “motion for relief from the stay”) to go forward. 

 

In order to get the fastest protection from the automatic stay, it is important for you or your attorney to file a document called a Notice of Bankruptcy Filing in the court where the lawsuit or garnishment action is filed. This document can be very short; it simply needs to state that you have filed for bankruptcy, and include your case number. This puts the creditor and the other court on notice that you have entered the protection of bankruptcy. 

 

If you are being garnished by a creditor before you file for bankruptcy, this should stop as soon as the case is filed and the creditor receives notice. If it does not stop, this is a violation of the Automatic Stay, and the bankruptcy court should be made aware of this immediately. 

 

In some cases, you will be able to get back some of the money that has been taken. If more than $600.00 has been garnished from you within 90 days of filing your bankruptcy case, you can recover that money. This will not happen automatically. Your lawyer will have to take steps, such as marking your garnished wages “exempt” in your bankruptcy schedules and contacting the creditor, to be sure that you get the money back. A Motion to Avoid Judicial Lien will also have to be filed, since most creditors must have a judgment in order to get a garnishment. 

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