A wage garnishment order allows creditors to take money directly from your paycheck. Most of the time, this is only possible after a court has entered a judgment. Here's how Delaware regulates wage garnishments.
Written by Upsolve Team.
Updated October 25, 2021
Having your wages garnished isn’t fun. Wage garnishment happens when a creditor like a credit card company gets a court judgment against you for a past-due debt. It allows them to take money right from your paycheck. Luckily, people in the First State are protected by certain state and federal laws, which limit how much a creditor can take from your paycheck. This article will explain the wage garnishment process in Delaware, what the limitations are, and what you can do to stop a garnishment.
What Is Wage Garnishment?
Wage garnishment — sometimes called wage attachment — is used by creditors when you owe money on a past-due debt. A creditor can then sue you in Delaware Superior court. If they get a money judgment, they are within their rights to pursue collection actions like wage garnishment. But they are limited in how much of your paycheck they can take. These limits are mostly governed by state law.
Who Can Garnish My Wages in Delaware?
Once a creditor sues you and wins, they become a judgment creditor and can garnish your wages in Delaware for unpaid debts. The creditor may be the original creditor you had the debt with or a debt collection agency or debt buyer. Once they have this judgment, you’re called the judgment debtor, the creditor is called a judgment creditor and it can start taking a portion of your paycheck.
Under Delaware law, creditors for unpaid debts like income taxes, court-ordered child support payments and child support arrears, alimony, and defaulted federal student loans can garnish your wages without a court order. The Delaware Division of Revenue, for example, can quickly take garnishment action on unpaid tax debt in approximately 10 days. All it needs to do is give the debtor notice via a letter. That said, most creditors that are collecting on consumer debts are required to get a wage garnishment order or income-withholding order before they can garnish your wages. That’s what this article will focus on.
Delaware Wage Garnishment Process
Creditors can’t just start garnishing your wages because you miss a payment. They must follow certain steps.
Step 1: The creditor sues you for a past-due debt and wins a money judgment.
If you haven’t paid on a consumer debt like a credit card bill or medical bill, a creditor can bring a debt collection lawsuit against you. You’ll be served with a summons and complaint. If you don’t respond to the complaint or show up in court to defend your case, the creditor will win a default judgment. If you do respond, the creditor will then need to prove that the debt is yours, the amount in question is correct, and that you haven’t made payments as required. If they prove this successfully, the court will grant them a money judgment, which allows them to move on to the next step to garnish your wages.
Step 2: The creditor files paperwork requesting a writ of garnishment.
After the court judgment in the debt collection lawsuit, a judgment creditor must file a request for garnishment form. This is a formal request to the court to issue a writ of garnishment. The court will not automatically garnish a judgment debtor’s wages — the judgment creditor has to request it.
This form must include the name and address of the garnishee. In wage garnishment cases, the garnishee is your employer. If your employer is a company that isn’t incorporated in Delaware, the judgment creditor will have to use a specific process for foreign corporations to get the writ of garnishment. That may be an area for objection later if your employer is not a domestic Delaware company.
Step 3: The legal paperwork is sent to your employer.
After the creditor files the request for garnishment with the court, they send a copy to the garnishee. Your employer then has 20 days to file an answer with the court. Your employer’s answer will include information on your employment and wages and may also include an explanation as to why your wages shouldn’t be garnished. Your employer could argue that there would be undue hardship, that there are applicable exemptions, or that your wages are seasonal. They also might argue that they shouldn’t be responsible for garnishment if the debt was incurred when you weren’t working for them.
Step 4: The garnishee delivers the paperwork to you.
Your employer should deliver the garnishment paperwork to you, the judgment debtor, so you can object or provide exemptions. The paperwork will include a notice of right to claim exemptions and claim of exemptions forms.
Step 5: You can file an objection and notify the court of exemptions.
You may file an objection and request a court hearing. At this hearing, you’ll be able to dispute many things about the writ of garnishment. You can object for the following reasons:
If the notice was served improperly.
If the creditor filed in the wrong court (jurisdiction).
If there were filing errors or the creditor didn’t use the proper paperwork.
If the statute of limitations time limit has passed.
You also can note exemptions and explain the financial hardship garnishment would cause you if you want the garnishment amount reduced.
Step 6: The garnishment begins.
Once the court hears your objections and exemption, wage garnishment can begin. Your employer will hold on to some of your disposable earnings and pay them directly to the judgment creditor. Once the debt is repaid, the judgment creditor must notify the court and release the garnishee from the wage garnishment.
How Much of My Paycheck Can Be Taken by Wage Garnishment?
The federal Consumer Credit Protection Act (CCPA) regulates the percentage of your disposable earnings that a creditor can garnish. Your employer already automatically withholds federal taxes to the IRS, state taxes for the Delaware Division of Revenue, Social Security, Medicare, and unemployment insurance. Your disposable earnings are what’s left after those withholdings, and that’s the amount that will be used to calculate how much can be garnished.
Delaware state law is more favorable for individuals facing garnishment than federal law. Under Delaware law, creditors can’t garnish more than 15% of your disposable income. Other states follow the federal guidelines, which allow creditors to garnish up to 25% of your wages. But Delaware caps the amount that can be garnished at 15% of your disposable income. For example, if your weekly disposable income is $500, the most you could be garnished each week is 15% of $500 or $75.
How To Stop a Garnishment in Delaware
Essentially, there are two routes to stop wage garnishment. They are:
Paying off the debt by letting the wage garnishment continue, making a lump-sum payment to the creditor, or negotiating an agreement with the creditor.
Filing for bankruptcy protection.
It is important to note that employers can’t fire you if you have one wage garnishment. If you have multiple garnishment orders against you, though, you’re no longer protected by law from being fired.
Garnishment can be stressful. It’s often a sign that you’re struggling generally with your finances and debt. In this case, you may want a fresh start. Many times filing bankruptcy can provide that fresh start. When you file bankruptcy, the court issues an automatic stay. This stops collection activities, including wage garnishment, while your bankruptcy case is pending. You won’t lose everything in bankruptcy. State exemptions protect many of your assets. Except under certain circumstances, you must use these state exemptions instead of federal exemptions in a bankruptcy case in Delaware.
If you’re considering Chapter 7 bankruptcy, Upsolve has a free web tool you can use to see if you’re eligible to file without paying for an attorney. If your case is complicated or you want to file Chapter 13 bankruptcy, having a consultation with a bankruptcy attorney can be extremely helpful. Upsolve can help you find an experienced bankruptcy lawyer to have a free consultation with.
Are There Any Resources for People Facing Wage Garnishment in Delaware?
You may be wondering how to pay for legal advice on wage garnishment when you’re not even getting your full paycheck. Luckily, there are several nonprofit legal aid organizations and other resources for those in Delaware who need legal help.
Garnishment information from Delaware’s Division of Revenue.
Delaware Community Legal Aid can help you with wage garnishment and other civil law matters.
Delaware Volunteer Legal Services provides pro bono (free) legal services for low-income individuals.
Legal Services Corporation of Delaware provides free legal services for qualifying individuals.