Usually the judgment creditor will first apply for a bank execution (garnishment) when a judgment debtor fails to make these payments since bank garnishment rules allow the creditor to execute on the full unpaid amount of the judgment. If the bank execution process is wholly or only partially successful in recovering the judgment then a creditor may wish to apply for a wage garnishment.
A completed application for the execution is delivered to the clerk of court with the application fee (currently $105.00). If the papers are in order the clerk will sign the execution and return it and this fee is added to the debt by the clerk. The execution is then forwarded to a marshal for service on the judgment debtor’s employer.
The specific name and address of the debtor’s current employer is required. Verifying employment before submitting the application is advised. It is not possible to apply for a blanket wage execution and find out the name of the employer later. If the debtor no longer works for the named employer by the time the execution is served by the marshal then a new execution application and filing fee must be submitted to the court.
When the marshal receives the execution she serves the employer with the process together with an exemption claim form. The employer is required to immediately provide the employee with notice of the execution and the exemption form. After a twenty day waiting period the employer must begin withholding the appropriate amount of wages if the employee does not submit a written exemption claim within this period. An employee can still claim an exemption after this twenty day period.
The garnishment form contains a worksheet with a formula which the employer needs to complete. The amount to be withheld from the employee’s wages is generally 25% of disposable earnings taking into account deductions for federal and state taxes, etc. This weekly amount can be more than the original court ordered periodic judgment payments.
The employee can request a modification of the garnishment to a more affordable periodic amount than the formula provides. If an exemption or modification claim is completed and delivered to the employer, the employer should not begin withholding wages until after a determination by the court of the exemption claim.
The employer is required to promptly mail the exemption claim form to the court and the clerk will schedule a hearing for the court to determine whether the garnishment should take place and the appropriate amount of periodic withholding. The judgment debtor is required to appear at the exemption hearing and bring with them documentation regarding their earnings and withholding amounts as determined by their employer.
If a prior wage execution has been served on the employer then that execution must be satisfied first before any wages are to be withheld on the current execution. Often debtors will have multiple executions waiting in queue for payment, one after the other, and therefore it may be months or longer before wages are withheld on a particular wage garnishment. This is another reason why a bank garnishment is the preferred first choice in executions.
The employer is required to periodically remit the withheld funds to the marshal, which should be on the same frequency as the employees pay. The marshal is entitled to a statutory fee (currently 15%) and after deducting her fee she will remit the net recovery to our offices. The amount of the marshal’s fee is added to the amount of debt to be garnished from the employee’s wages.
Frequently employers do not properly calculate the amounts to be withheld or timely remit the appropriate funds to the marshal. Marshals also sometimes make infrequent remittances to the judgment creditor’s attorney, particularly when amounts received from an employer are sporadic or very low (as in the case of part-time employment or low wage earnings).
If the employer does not handle a wage garnishment properly the law provides that a Turnover Order may enter whereby the employer is directly responsible to the judgment creditor for the appropriate amount of withholding.
Problems can occur related to accurate calculations for seasonal or part-time employees, for those earning commissions or those deemed to be independent contractors. Often employees can be laid off or terminated or quit during the wage execution process. Employers can fail to inform the marshal of this termination or lay off. Sometimes companies change ownership and the new management mishandles an existing wage garnishment. Therefore the process can take many months or years to play out and is often problematic.
Once the entire judgment amount and appropriate costs and fees have been withheld from the employee’s wages and delivered to the marshal (as outlined in the marshal’s direction) the marshal will make a final remittance. The marshal will include proof of the proceedings and a “return of service” indicating that the debt has been “fully satisfied.”
In the event of partial remittances the marshal will forward a return of service indicating that the debt has only been partially satisfied.
If an employee changes jobs another wage execution can be applied for and served in the same manner. Only one execution is allowed by the clerk to be outstanding at any one time. If an employee is working at more than one job the law does not allow for multiple executions against more than one employer at the same time.
In our post judgment written communications to debtors, we inform them that is in their best interest to keep the marshal out of the process of satisfying the judgment.