How do I obtain a wage garnishment against a judgment debtor?
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Wage garnishment is a commonly used method when a judgment debtor is not paying what they owe. When a wage garnishment is put in place the employer of the judgment debtor is directed to withhold a portion of the judgment debtor's wages earned and to make this payment directly to the judgment creditor. The money is taken directly from the paycheck of the judgment debtor before they ever receive it, essentially guaranteeing that the money will get to the creditor. However, wage garnishments will not be granted unless a creditor already has a judgment for the money owed, and can demonstrate the judgment debtor is not paying the money due.
Understanding Wage Garnishments
An Order of Wage Garnishment is a specific order issued by a court directly to the employer instructing the employer to withhold earnings of the judgment debtor and send all amounts withheld directly to the judgment debtor. It occurs only after a creditor has already been awarded a judgment. For example, if someone owes you $1000, you can't just get his or her wages garnished. First, you have to sue him or her for that $1000 and then once you have been awarded a $1000 judgment you may bring a garnishment action, provided the $1000 has not been paid.
Obtaining Wage Garnishments
Wage garnishments are similar to two other methods of collecting debt, execution and a levy against property. To obtain a garnishment, execution or levy based on money that is owed to you or that has been awarded to you in a legal proceeding:
- The first step typically is to obtain a Writ of Execution from the Clerk of the court which issued the original judgment (in the example above, this would be the court that originally awarded you the $1000).
- In addition, an Application and Order for Wage Garnishment must be obtained.
- Typically, you may request to garnish up to 25% of a judgment debtor's wages for a money judgment or up to 50% of his wages to enforce an order for support, such as a child support order.
- Once obtained, the judgment creditor must have the Order of Wage Garnishment served upon the employer.
- Should an employer who has been properly served with an Order of Wage Garnishment fail to comply with the order, typically the employer can then be held responsible for any amount which should have been withheld from the judgment debtor's pay check.
It can be helpful to have a collections attorney throughout the process of obtaining the garnishment.