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 Virginia regulates wage garnishments.
Written by Upsolve Team.
Updated October 21, 2021
When you don’t pay a debt, a creditor may be able to get a wage garnishment order against you. This allows them to take money directly from your paycheck. During the garnishment, your check may be too small to pay your bills and still have money to buy groceries. So what can you do? That’s what this article is about. We’ll discuss who can garnish your wages in Virginia, how much money they can take out of your check, and how you can stop the garnishment.
What Is Wage Garnishment?
A wage garnishment is a technique used by creditors to take money out of your paycheck to repay an overdue debt. They continue the wage garnishment until your debt is fully paid. Most creditors are required to get a court order and judgment before they can garnish your wages. And they can’t take all your wages. There are limitations, which are mostly governed by state law.
Who Can Garnish My Wages in Virginia?
Most garnishments in Virginia are by consumer creditors. These are creditors for debts such as credit cards, medical bills, personal loans, or car loans. Collection agencies and debt-buyers may also collect on these debts. These creditors must go to court and win a lawsuit against you before they can garnish your wages.
Other types of creditors may not have to go to court to garnish your wages. These include the following:
The IRS and the Virginia Department of Taxation;
Government agencies collecting certain fines and penalties;
Collectors for federal student loans; and
Agencies collecting past-due money for domestic support obligations like alimony or child support. (The plaintiff in these cases must go to family court to get a domestic support order, but garnishments can be put into effect by state agencies).
Creditors for these debts are limited in how much of your disposable income they can garnish, though the formulas are different than for consumer debts, which is the focus of this article.
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The Virginia Wage Garnishment Process
There are several steps to the wage garnishment process in Virginia.
1. The creditor sues you.
Consumer creditors must first sue you to get a wage garnishment. They may sue you in circuit court or district court. In Virginia, you have 21 days to file an answer, or respond to the lawsuit, if it’s filed in a circuit court. If the suit is filed in a district court, you need to show up at the time on your summons prepared to prove your case. If you fail to answer or appear as directed, a default judgment may be entered against you. If you don’t file an answer or appear as required, you’ll lose the case.
You may think you have no chance if you have to appear without a lawyer and argue against a trained attorney. But defendants who prepare their cases and fight back win more often than you might think.
2. The creditor gets a court judgment. You have 10 days to appeal.
If the consumer creditor gets a court judgment or a default judgment against you, they’ll try to collect on their judgment. Once they have a judgment, the creditor is known as a judgment creditor and you're a judgment debtor. In Virginia, you have only 10 days to file a notice of appeal if you intend to appeal your judgment. Lawyers will often wait until your appeals rights have lapsed before trying to get a Virginia garnishment.
3. If the creditor is successful, you appear in court to answer questions.
For the creditor to learn important information needed to garnish your wages, you’ll have to answer interrogatories. In most states, these are written questions, but in Virginia, you're required to appear in court and answer oral questions from the judge regarding your employment. Your employer is the garnishee or the person who will pay the wages they withhold from your paycheck to the creditor. If you fail to appear at this hearing you can be arrested.
4. The creditor serves you with paperwork. You can file a claim for exemptions.
Next, you’re served with the garnishment summons and notice of exemptions. If the correct exemptions aren’t already taken or if there’s a miscalculation, you should file an exemption claim. If you do, there will be a court hearing set within seven days.
5. The creditor decides the garnishment time frame.
The judgment creditor must decide whether it wants the garnishment to last 30, 60, 90, or 180 days. After the garnishment expires, the creditor has to renew the garnishment. Your employer, as garnishee, makes the garnishment payments to the court during this time frame. The court only pays the money to the judgment creditor at the end of the garnishment. This can influence the creditor’s decision about which time period to choose.
The garnishee can charge you a $10 administrative fee for each garnishment summons it has to deal with. So if the judgment creditor only asks for 30-day garnishments, you could be charged $10 by your employer every 30 days.
6. You reappear in court every 180 days until the garnishment stops.
After your first interrogatory hearing, you can be called back once every 180 days for a new hearing. This is to prevent people from changing jobs to avoid garnishments. The judgment creditor can continue to renew the garnishments until the judgment is fully paid or the judgment expires and isn’t renewed.
How Much of My Paycheck Can Be Taken by Wage Garnishment?
In Virginia, the judgment creditor can garnish the lesser of the following:
25% of your weekly disposable earnings, or
The amount of your weekly disposable income minus 40 times the federal minimum wage ($7.25/hour).
Your disposable earnings are your wages minus any legally required deductions, like payroll taxes and unemployment insurance. Other things may be deducted from your paycheck like a 401(k) contribution or union dues. But since these are voluntary, they aren’t deducted from your disposable income.
Here are some examples of these calculations:
|Example 1||Example 2|
|Weekly Disposable Earnings||$400.00||$300.00|
|25% of Disposable Earnings||$100.00||$75.00|
|40 times $7.25||$290.00||$290.00|
|Amount Greater Than 40 Times Minimum Rule||$110.00||$10.00|
|Lesser of 25% or 40 Times Rules||$100.00||$10.00|
In Example 1, where the employee has disposable earnings of $400 per week, the 25% rule is used since $100 (25% of $400) is less than $110 ($400 minus $290). In Example 2, the employee has disposable earnings of $300 per week. Here, the 40 times minimum wage rule is used. That’s because $10 ($300 - $290) is less than $75 (25% of $300).
Some types of income are exempt from wage garnishment. This includes child support payments, Supplemental Security Income (SSI), and unemployment compensation. In Virginia, some families will also qualify for an exemption for dependent minor children if the household income is $1,750 or less each month. Household income includes more than just your disposable income from wages. A list of the most common examples can be found in the state code.
If you qualify, the following amounts will be exempt from weekly wage garnishment:
$34 per week for one child,
$52 per week for two children, or
$66 per week for three or more children.
How To Stop a Garnishment in Virginia
Under Virginia law, there are only a few ways to stop a garnishment. You could make a lump-sum payment to pay off the judgment or allow the garnishment to continue until the judgment is fully paid. Though this can cause you to fall behind on other debts.
In this case, bankruptcy may be your best solution. Bankruptcy filers usually lose only one thing when they file for bankruptcy: their debt. This is because you have exemptions for your property. When you file for bankruptcy, an automatic stay goes into effect. This stops all debt collection activities including garnishments. Bankruptcy also usually discharges all consumer debt, even debts where the creditor has gotten a judgment against you.
For simple Chapter 7 bankruptcies, Upsolve provides a free tool to help you file without an attorney. For more complex Chapter 7 bankruptcies and Chapter 13 bankruptcies, Upsolve can help you find an experienced attorney in your area.
Are There Any Resources for People Facing Wage Garnishment in Virginia?
Virginia Legal Aid can help lower-income Virginians find legal assistance. Legal aid helps with many types of non-criminal legal assistance such as family law issues, evictions, garnishments, and bankruptcies.
Other helpful links:
Law Help provides online self-help assistance.
The Virginia Court System provides a self-help site with access to useful forms and information.
The American Bar Association provides information on free legal resources.
Upsolve.org has a Learning Center with information on debt relief, bankruptcy, and wage garnishment.