Judge Gerald A. Williams on what you need to know about wage garnishments
Judge Gerald A. Williams on what you need to know about wage garnishments.
I have yet to meet anyone who was happy that their wages were being garnished. A garnishment is a court order that allows a percentage of your salary to go directly to someone who a court has previously concluded you need to pay. Although some garnishments are for child support, most garnishments are filed to collect on a judgment.
Nearly every garnishment hearing begins with the defendant attempting either to challenge the judgment or attempting to re-litigate the judgment. This is an extremely common misunderstanding that is fueled by the mandated garnishment forms.
These forms allow a defendant to check a box before a line that reads, “The judgment creditor does not have a valid judgment against me.” To make matters even worse, that misleading statement is followed by two blank lines allowing the defendant to write in anything he or she desires.
Those lines are there to raise defenses, which can be the proper subject of a garnishment hearing; but those issues usually do not appear in justice courts. For example, a defendant can claim that the creditor does not have a valid judgment because the judgment is from a court in another state and the spouse was not a part of that lawsuit. A defendant can also allege that a judgment is being improperly enforced against community property because it was a separate debt and none of the debt was incurred on behalf of the marital community.
There may not be much that can be done to change the language of the mandated garnishment forms because they are statutory. A.R.S. § 12-1598.16. However, at least for justice courts in Maricopa County, we are likely going to add an additional warning stating that the factual basis for the judgment cannot be attacked during a garnishment hearing.
The main and often only purpose of a wage garnishment hearing is for the court to determine whether, based on clear and convincing evidence, that the amount being withheld would cause “the judgment debtor or his family” to “suffer extreme economic hardship.” A.R.S. § 12-1598.10(F). If so, then the amount of the nonexempt withholding can be reduced from 25 percent to not less than 15 percent.
If you want to challenge a basis for the judgment, you will need to file a motion to set aside the judgment. It will follow a process that is separate from any garnishment action.
What Employers Need to Know About Garnishments
If you receive a writ of garnishment from a court concerning one of your employees, don’t ignore it. An employer is required to complete and to file a Garnishee’s Answer with the court.
If an employer fails to follow the legal requirements of a garnishment, then it can be held in contempt. A.R.S. § 12-1598.13(B). Possible penalties for the employer include being held responsible for the employee’s debt, additional attorney’s fees, and court costs.
An employer should not forward any funds to the creditor until it receives an Order of Continuing Lien from the court. If the garnishment is completed or is discharged, then the employer must return any withheld earnings to their employee.
Leave a Comment
You must be logged in to post a comment.