Last Updated On: 9/14/2020 9:36:44 AM
This is general information about how you can protect some or all of your wages from being taken to pay a court judgment debt. For information about your particular case, you should talk to a lawyer.
This article focuses entirely on Wages. Judgment creditors can also try to collect by attaching money in your bank account or asking the sheriff to sell some of your personal property (like cars and furniture). Those are different from wage garnishment, and they have different protections for debtors. Legal Aid has a separate article to talk about those protections. Click here to see that different article.
What Is A “Wage Garnishment?”
A “wage garnishment” is a court order telling your employer to send part of your wages to pay a previous court judgment against you. The technical legal name is “Suggestee Execution.”
To get a wage garnishment, the creditor first has to win a court case proving that you do in fact owe money to the creditor.
If the creditor proves that you do owe money, then the court will issue a “judgment” order. The judgment order simply states the exact amount of money that is owed as of that date. (Interest is also added from the date the judgment order is issued until the date it is paid off in full.)
Can A Wage Garnishment Take All Of My Wages?
No. There are two limitations.
“Minimum protected amount.” One limit says you must always have a certain minimum amount of wages “protected” against garnishment. You must have this much left “after” the amount taken out for garnishment.
“Twenty percent.” The other says the creditor can never take more than twenty percent (20%) of your wages.
These limits work together. The creditor cannot take 20% of wages if that would leave you with less than the minimum protected amount.
What Is The Minimum Protected Amount?
The protected amount is “fifty times the federal minimum hourly wage” per week, after federal and state taxes are taken out. As of May 2019 the current federal minimum wage is $7.25 per hour. Fifty times that amount is $362.50.
So no matter how many hours you work, and no matter how much you owe, you must be left with at least $362.50 per week after taxes are taken out.
The statute is very clear that garnishment can be done only against wages “after the deduction of all state and federal taxes.” WV Code 38-5A-3.
If your after-tax weekly wages are less than $362.50, the garnishment cannot take any money at all.
What If My Wages Are More Than The Minimum Protected Amount?
If you have more than $362.50 after tax wages per week, then the garnishment can take some of the wages that are over that protected amount.
The creditor can never take more than 20% of your after tax wages. No matter how large your income may be.
But the creditor must always leave you with at least $362.50 per week of after-tax wages.
Suppose you have $400 per week in after-tax wages. Twenty percent of that would be $80.
Taking the full 20% out would leave you with only $320. This is less than the minimum protected amount.
So the most that could be taken would be the wages above $362.50. In this example, that would be $37.50 (the difference between $400 total and the minimum protected amount of $362.50). The creditor gets less than 20%, because you have to be left with the minimum protected amount of $362.50
Now suppose you have $500 per week in after-tax wages. Twenty percent of that would be $100.
Taking the full 20% out from the $500 would leave you with $400. This is more than the minimum protected amount. So the creditor could take the full twenty percent.
Who Can Claim The Wage Garnishment Protections?
“Any individual residing in” West Virginia. WV Code 38-8-1. Single or married, with children or family, or living alone, it doesn’t matter. Anyone earning wages has this protection.
I’m Paid By Salary, Not By Hourly Wages. Are My Earnings Covered By The Wage Garnishment Protections?
Yes. The statute is very clear. WV Code 38-5A-1(1) says that “Salary and wages” are “sums based upon work done or results produced.”
I’m Paid Partly By Commission Or “Share of Profits.” Are Those Earnings Covered By The Wage Garnishment Protections?
Yes. The statute is very clear on this point, also. WV Code 38-5A-1(1) says that Salary and Wages “shall include compensation measured partly or wholly by commissions, percentages or share of profits….”
What If I Have More than One Wage Garnishment Filed Against me?
Only one garnishment can be taken out of wages at a time. If more than one is filed against you, then the garnishments are handled in the order in which they were filed. When the first one is paid off then the second one comes into effect.
Do I Have To File Some Papers With The Court To Get This Protection?
No. The protection of wages is supposed to be “automatic.”
A garnishment does not happen until and unless a creditor files papers asking the court to issue a garnishment order. To do that, the creditor has to make a sworn statement that:
- you are employed by a specific employer AND
- that your “weekly disposable income or wages” are more than the minimum protected amount.
If your wages are less than the protected amount, the court cannot issue a garnishment order.
If and when the garnishment order is issued, it is supposed to tell the employer exactly how much can be taken out of your wages.
Of course, mistakes happen. If your wages are garnished in higher amounts than proper, you should go immediately to the court clerk’s office with proof of your actual wage amounts.
When Do I Find Out About A Wage Garnishment?
The court is required to send you a copy of the garnishment order at least five days before it is in effect. If you believe it is improper you will then have time to go to the court clerk’s office and straighten it out.
However, the mailing will be sent to the address in the court file where you lived when the original case was done. That’s fine if you are still living at the same address. But if you have moved to a new address you may not get that first notification.
Five days after that notification is sent, then the garnishment order will be sent to your employer. Many employers will tell their employees that a garnishment order has come in.
If you have moved since the original court judgment was issued, and the employer doesn’t tell you about the garnishment order, you probably won’t find out about it until some money is taken out of your check. Obviously you’ll talk to the employer right away, and find out that a garnishment order has been sent.
What Should I Do If The Garnishment Is Taking More Than Allowed?
If the garnishment is outside proper limits (more than 20%, or leaves you with less than $362.50/week) then you should act immediately. Go to the court clerk’s office with paystubs showing your wages and tax deductions. Ask for a copy of the garnishment order. File a “motion to modify” the garnishment order.
Is There Anything I Can Do To Reduce or Stop The Garnishment?
West Virginia law says that at anytime after a garnishment order has been entered, you can file a petition with the court to ask that the garnishment be reduced or removed because the loss of these wages is causing an "undue hardship" to you or your family. WV Code 46A-2-130(3). This can be a request to temporarily or permanently reduce or remove the garnishment.
You will have to provide evidence to the court of this "undue hardship." It will be up to the court about whether there is enough evidence to prove that the garnishment is an "undue hardship." If so, the court may reduce or remove the garnishment.
When Does The Money From Garnishment Get Sent To The Creditor?
The statute specifies payment to be sent by the employer every 90 days.
If the employer is taking too much out of your wages, and you act quickly, the money should still be in the employer’s hands. You will have time to run to the court clerk’s office and get things straightened out, and get back any amount that was improper.
How Long Are My Wages Exempted?
A wage garnishment lasts for one year. The calculations at the beginning of the garnishment about how much you have in wages, how much can be taken, and how much you must be left, will cover the entire year. You should not need to file additional papers unless something changes.
If your wages change significantly during the year, you must report this to the court.
Suppose your wages are high enough that the garnishment is taking some money. Then your wages go down. If your employer takes out too much from your lower wages, you should file proof of your reduced wages with the court and ask for a “modification” in order to get the protections calculated correctly.
Suppose your wages are low enough that the garnishment cannot take any money. But then your earnings go up. The employer should adjust the amount being taken out from your higher wages. If the employer takes too much out from your higher wages, you should file proof of your wages with the court and ask for a “modification” in order to get the protections calculated correctly.
If the judgment order is not paid off in full by the end of 12 months, the creditor can file a new garnishment. The whole process will then repeat itself. The new garnishment will be valid for up to one year. The protections should be applied automatically. If the protections are not applied correctly so that too much is taken from your paycheck, you should file a request to modify the garnishment along with proof of your wages.