Wage garnishment is a common problem for millions of Americans. It can be deflating to have your wages garnished. But you do have options to protect yourself.
Written by Attorney Andrea Wimmer.
Updated December 28, 2020
Having your wages garnished can be overwhelming and scary. There are some things you can do to stop a wage garnishment. Let’s start with the basics first.
What Is Wage Garnishment?
A wage garnishment is a debt collection tool. If a garnishment is in effect, the department that processes your paycheck has to withhold a certain amount of wages. This amount is sent to the creditor to reduce the total balance owed.
How much of my wages can be garnished?
There’s a limit to how much creditors can garnish from your wages. Under federal law, the garnishment amount can’t be more than 25% of your net (take home) pay, or the amount by which your take home exceeds 30 times the federal minimum wage (currently set to $7.25/hour), whichever is less.
Creditors can’t take money out of your bank account with a garnishment order. Under state law, a so-called bank levy typically requires a separate order from the court.
How Does Wage Garnishment Happen?
Most wage garnishments start when a creditor - like a credit card company or bank - sues a customer for nonpayment. This includes banks that sue homeowners after a foreclosure. If they win in court, they get a judgment against the person. The judgment in turn gives them the ability to get a garnishment order. That court order is sent to the person’s employer.
You Can Stop Wage Garnishment Before It Can Start.
Before the creditor or collection agency can get a garnishment order, they have to get a judgment. In other words, they have to win the lawsuit. Now, it often doesn’t make sense to fight the lawsuit (after all, unless the debt you’re being sued over is not yours, there’s rarely a good defense), but that doesn’t mean that you should ignore the lawsuit.
Consider signing up for a free credit counseling session with a nonprofit near you as well. After doing a free evaluation of your financial situation, they’ll be able to make some recommendations on how to avoid a garnishment. They may even be able to help you put together a repayment plan to offer to the bank that’s suing you.
If you do (ignore the lawsuit, that is) it will just speed up the inevitable. If the creditor doesn’t hear from you at all, they’re able to ask the court to grant them a judgment against you by default. That’s called a default judgment and it’s a bit like losing a softball match by forfeiture because your team didn’t show up.
Exception: Student Loan Debt And Tax Debt
Federal law provides that your wages (and your social security benefits) can be garnished for back taxes and student loan debt. This means the Department of Education and the IRS can garnish your wages without first filing a lawsuit or getting a judgment.
Avoid a Default Judgment
To avoid a default judgment, make sure to answer the lawsuit. All that means is that you’ll file a document (called an “answer”) with the court in response to the lawsuit. Unfortunately, there’ll be a filing fee to submit this document, with amounts varying from $30 - $300+. Each state’s court system sets their own fee schedule. The best way to find out how much the filing fee for an answer is is to contact the court directly. The court’s name will be on the paperwork you received from the creditor (the summons and complaint).
Once your answer has been filed, the court can no longer enter a default judgment against you. This will buy you a little bit of time to negotiate a repayment plan with the creditor.
(1) Negotiate a Payment Plan With Your Creditor
If you’re not able to pay off the full balance owed in a lump sum payment, now is the time to negotiate a payment plan. At this point, you’ll likely be dealing with a law firm. Let them know what you can afford to pay every month, or how much you can afford to pay for a debt settlement. They may require you to complete a questionnaire with information about your financial situation and/or ask you to submit certain documents to their office.
If you’re able to come to an agreement for a payment plan, you’ve successfully stopped a garnishment before it started!
While you can technically try to negotiate a debt settlement or payment plan even after a court order to garnish your wages has been entered, it’s a little harder. Now, the creditor has a court order that says they get a certain amount of money from your wages every pay period.
If your monthly income and living expenses don’t allow you to offer a payment plan that pays at least as much as what they’re getting through the garnishment order, the creditor is not likely to agree to it.
(2) Challenge the Garnishment
Once the judgment is entered and the court orders a garnishment, you’ll receive a copy of the order at the time it’s sent to your employer. Along with this notice, you’ll receive instructions on how to challenge the garnishment order in court. If you plan on doing this, make sure you act quickly.
Depending on your state, you may have as little as 5 business days to file a claim of exemption or similar paperwork. Once that time has passed, your employer (or their payroll company) won’t have a choice but to garnish a part of your paycheck.
(3) Stop Wage Garnishment With Bankruptcy
If you’re buried in debt and can’t pay your basic living expenses, stopping the wage garnishment may only be temporary relief. If you’re struggling with more than one debt, and have multiple creditors filing lawsuits against you, you may need a completely fresh start. In that case, consider the pros and cons of Chapter 7 bankruptcy. If it makes sense for you to file bankruptcy, know that once your case has been filed, the wage garnishment has to stop.
The creditor will receive notice that you’re protected by the automatic stay from the bankruptcy court. That’s just like a court order and they’ll have to stop garnishment shortly after you file. Check out this article to find out what you’ll need to do to make sure the garnishment stops after filing bankruptcy (Chapter 7 or Chapter 13 bankruptcy).
And if the debt for which you are being garnished is dischargeable like a credit card debt or an old car loan, then it will be erased in the bankruptcy process, which ends the garnishment permanently.
Exception: Domestic Support Obligations
Even though the automatic stay stops most collection activities, there are a few exceptions. One of these exceptions is wage garnishment for child support and alimony. Garnishment orders for this type of debt survive the bankruptcy filing.
If you can, avoid having a default judgment entered against you. That’s the best way to buy some time and possibly negotiate a repayment plan with the creditor. If it’s already started, you can try to challenge the judgment or negotiate with the creditor. But, they’re in the driver’s seat, and if they don’t allow you to stop a garnishment by agreeing to make voluntary payments, you can’t really force them to. You can, however, stop the garnishment by filing a bankruptcy case.
Bankruptcy is not right for everyone and every situation, but if your wages are getting garnished it may be the best way to get back on track financially. Keep reading to learn more about personal bankruptcy and other debt relief options and consider scheduling a free consultation with a bankruptcy attorney in your area.
If you’re ready to file, but can’t afford to hire a bankruptcy attorney, Upsolve’s free tool may be a good alternative. It helps you file your Chapter 7 bankruptcy case on your own by walking through all the questions you’ll need to answer to complete your bankruptcy forms. For more on how to stop wage garnishment, check out the video below ⬇️.
- U.S. Department of Labor. (2019, October). The Federal Wage Garnishment Law, Consumer Credit Protection Act’s Title III (CCPA). Fact Sheet #30. Retrieved October 5, 2020, from https://www.dol.gov/agencies/whd/fact-sheets/30-cppa#