I. INTRODUCTION
This hand out is designed to provide a quick-reference
when responding to garnishment process served
by judgment creditors seeking to collect money
owed to them by employees. Georgia law provides
that a judgment creditor is entitled to withhold
up to 25% of the debtor’s disposable earnings
or 50% of an individual’s disposable earnings
if the underlying award is for alimony or child
support. The most frequent type of garnishment
used by creditors will be a summons of continuing
garnishment. This will be discussed in detail
below. In an nutshell, a continuing garnishment
requires the employer, as garnishee, to withhold
money from the employee’s disposable income
and to submit an answer, paying the amounts withheld
to the court every 45 days.
Copies of the code sections which deal with
continuing garnishments, regular garnishment (one
time garnishment), child support and alimony recovery
and tax levy are attached for reference at the
tab which correspondence with the topic number.
Although the statutes may appear confusing, once
an understanding of the general framework is obtained,
referring to the actual statute may be your best
source of information. Also, attached is a form
answer used in responding to a continuing garnishments.
This will be the most frequently used garnishment
proceeding encountered by an employer. There is
also a proposed answer for a one-time garnishment.
This answer should not be used in responding to
a continuing garnishment. This type of garnishment
is usually served on banks and other financial
institutions. It is possible, however, that a
creditor may file a one time garnishment on an
employer. If this occurs, only one answer should
be made within 30 days of service of the regular
garnishment. Unlike the continuing garnishment,
once the answer and money withheld have been paid
to the court in which the garnishment is pending,
there is no duty to file a subsequent answer.
A. CONTINUING GARNISHMENTS
Garnishment is an in rem proceeding (a proceeding
against property rather than an individual)
by a creditor for the purpose of obtaining satisfaction
of an indebtedness due the creditor by the defendant
for money or property owed to the defendant
by a third person, the garnishee. When a plaintiff
sues another person (the defendant) a court
lacks the authority to order the defendant to
pay money damages to the plaintiff. All the
court can do is enter a judgment of record which
demonstrates to all the world that the debtor/defendant
is indebted to the creditor/plaintiff. The burden
is then placed on the plaintiff to actually
collect the debt. The most commonly utilized
means to collect a judgment debt is through
garnishment. There are two types of garnishment
in Georgia, continuing garnishment and one time
garnishment. Continuing garnishment is most
often utilized to obtain wages which are owed
to the judgment debtor by his employer.
Continuing garnishment will only apply in
cases where the garnishee is an employer of
the judgment debtor/defendant. See O.C.G.A.
§18-4-110. Garnishment initiated
under this code section reaches all debts (wages)
which the garnishee owes the judgment debtor/defendant
from the date of service to the petition through
the 179th day thereafter. The garnishment applies
to all property, money or effects of the judgment
debtor which are in the possession or control
of the garnishee during the period.
The garnishment process begins with a filing
of an affidavit given by the creditor providing
the relevant information concerning the judgment
against the debtor, along with the total amount
claimed due. A summons is then issued in order
to bring the garnishee into court in the same
manner as an ordinary suit. The plaintiff has
the responsibility to include all the necessary
information in the summons of garnishment, including
the specific amount claimed due at the time
the summons is filed.
Most of the state courts provide form affidavits
which contain language preprinted on the form
which instructs the garnishee that they must
file an answer every 45 days. It is also the
plaintiff/judgment creditor’s responsibility
to provide a sufficient number of forms for
the garnishee to file seven answers to a summons
of continuing garnishment. Once a summons of
continuing garnishment has been served, the
garnishee will be required to file answers in
intervals of not more than 45 days. See O.C.G.A.
§18-4-117. If the judgment debtor
is not employed by the garnishee/employer, or
during the term of the continuing garnishment
the debtor stops working for the garnishee,
then an answer by the garnishee stating that
fact will terminate the continuing garnishment.
The summons and garnishment must be served
upon the defendant, as well as the garnishee.
Once the garnishment summons has been served,
it is the responsibility of the garnishee (employer)
to comply with the requirements regarding response
to the garnishment. O.C.G.A.
§18-4-64 provides that all wages
which are subject to the garnishment must be
collected, held and submitted with the garnishee’s
answer no later than 45 days after service of
the garnishment petition.
Disposable earnings are specifically defined
as “that part of the earnings of an individual
remaining after deduction from those earnings
of the amounts required by law to be withheld.”
Certain payroll deductions, other than the amounts
required by law to be withheld, may be included
in the calculation of disposable earnings. For
example, FICA, State and Federal tax withholdings
constitute amounts that are “required
by law to be withheld.” However, deductions
for group life or health insurance, as well
as elective savings, although deducted from
the employee’s pay, are not required to
be withheld by law. Accordingly, any amounts
that are paid for this type of insurance or
savings should be included when determining
disposable earnings.
Only a portion of an individual’s wages
are subject to garnishment. Due to the concern
of the Georgia legislature to afford an individual
and his family some protection from the economic
hardships that may result from a garnishment
of wages, a formula was created to limit the
amount of wages subject to garnishment. The
amount of wages subject to garnishment may not
exceed the lessor of 25% of the debtor’s
disposable earnings for that period, or the
amount by which the disposable earnings for
that period exceed 30 times the federal minimum
hourly wage per week.
Currently, the minimum wage is $5.15. If an
employee were earning $500.00 per week with
$150.00 in gross pay reduction for Federal and
State withholding, he would have disposable
earnings of $350.00. Twenty-five percent of
$350.00 would be $87.50 per week. This is the
amount that would be subject to garnishment.
In this scenario, 25% would be less than the
amount of earnings which exceed thirty times
the minimum wage. If the total amount of earnings
which exceeded thirty times the Federal minimum
wage were used, the amount of disposable earnings
subject to garnishment would be approximately
$346.00. The statute provides that the lesser
of the two calculations for determining disposable
earnings be used when determining wages subject
to garnishment. In the foregoing example, $87.50
is substantially less than $345.00, so the 25%
calculation would be used in this scenario.
As a general rule, the “thirty times Federal
wage” factor will only be used for low
earning employees.
Please use the following when calculating
disposable earnings:
Gross Earnings: $-----
Total Social Security and Withholding Tax:
($-----)
Total Disposable Earnings: $-----
Amount of Wages Subject to Continuing x 25%
Garnishment: $-----
Child Support Garnishment: $----- x 50% $-----
Remaining amount of disposable earnings per
week subject to the within garnishment $-----
Reasonable expenses deducted pursuant to O.C.G.A.
§18-4-97 (10% or $25.00, whichever is greater--not
to exceed $50.00): ($-----)
Amount Herewith Paid Into Court: $-----
Also, note that the garnishee is entitled to
a right to set-off if the garnishee (employer)
also has a claim against the debtor. It has
been held by the Georgia Court of Appeals that
a garnishee has a lien on the funds which are
in its possession which is superior to the claim
of the judgment creditor in the garnishment
action. Therefore, the garnishee is entitled
to be paid prior to surrendering funds to other
creditors. Fontaine v.
Stuhler, 179 Ga.App. 584, 323 S.E.2d 881 (1984).
B. ONE TIME GARNISHMENT
PROCEDURES
One time or traditional garnishment most often
targets a financial institutional as the garnishee.
This is usually in an attempt to obtain funds
from a judgment debtor’s financial accounts
to be used in satisfaction of a judgment. Generally,
there is no application of the one-time garnishment
procedures to an employer. However, occasionally
a judgment creditor representing himself will
file this type of petition without realizing
that there is another continuing garnishment
remedy which is more suited to the employer/employer
context. This type of garnishment will often
request accounts, deposits, certificate of deposits
or other financial effects as being subject
to the garnishment.
To the extent that the one time garnishment
may accurately describe wages or other items
that are owed by the employer/garnishee to the
debtor, it is best to file an answer within
30 days paying those wages that were received,
subject to the 25% maximum of disposable earnings.
Only one answer must be filed when responding
to a regular garnishment.
C. CHILD SUPPORT AND ALIMONY
Garnishment may also be used to collect money
that is due in a divorce proceeding for either
alimony or child support. Occasionally, the
Department of Human Resources Child Support
Recovery Department will assist in the collection
of child support. Garnishment is an effective
remedy in collecting money owed under divorce
related matters as 50% of an individual’s
disposable earnings is subject to garnishment
in divorce actions (compare this to 25% of disposable
earnings in all other collection matters). It
is important to closely scrutinize the affidavit
which is served with a filing of continuing
garnishment in an divorce of child support action.
The divorce decree should be attached to the
garnishment or sufficiently referenced in the
affidavit in support of garnishment so that
it easily allows the garnishee to determine
whether a divorce action is involved. The calculation
of disposable earnings will be the same as is
described above. Once garnishment of wages for
child support or alimony is commenced, it does
not terminated after 179 days. It is the garnishee’s
responsibility to answer the garnishment at
intervals of no more than 45 days until the
support or alimony is completely paid.
D. TAX LEVY
The Tax Commissioner or other authorized representative
of a tax collecting agency, State or Federal,
is entitled to serve a summons of garnishment
against any person believed to be indebted to
the defendant/tax debtor or who has property,
money or effects in his hands belonging to the
debtor. The process for responding as a garnishee
is the same as continuing garnishment.
E. ANSWER AND TRAVERSE
When a garnishment summons is received and
the employee is no longer employed, an answer
stating this must be filed within 45 days from
initial receipt of service of the summons petition
in the case of a continuing garnishment. Once
this has been filed, assuming that the employee
is not reinstated as an employee during the
179 day of the continuing garnishment, no additional
answer is required. In the event that the employee
does become re-employed during the 179 day period,
an answer must be filed, even though several
interim answers may not have been filed due
to the termination of the employee.
There are two circumstances when the employee/judgment
debtor may challenge the creditor’s garnishment
affidavit and summons. The judgment debtor may
challenge the existence of the underlying judgment
and also may challenge the amount claimed due
on the judgment. Even though the employee may
file a traverse on these basis, it would not
relieve the garnishee from filing an answer
and paying the property subject to the garnishment
into the court. In the event that the defendant
is correct, the money that would have otherwise
belonged to the defendant, will be paid by the
court to the defendant/judgment debtor rather
than the plaintiff.
Occasionally, a garnishee/employee will file
an answer indicating that the employee/debtor
no longer works there or paying a smaller portion
into the court then the plaintiff believes is
actually due. In either of these situations,
the plaintiff has 15 days after service of the
garnishee’s answer to file a traverse.
If a traverse if filed, the court in which the
garnishment is pending will set the matter down
for hearing. This generally takes one to two
months. The burden of proving that the garnishee
actually is holding property subject to garnishment
is upon the traversing creditor (the plaintiff).
If no traverse is filed within 15 days after
an answer, the plaintiff can file an application
to condemn and receive all money paid into the
court.
F. MULTIPLE GARNISHMENTS
A subsection (e) of code section §18-4-20
(continuing garnishment) specifically contemplates
the occasion when multiple garnishment summons
will be filed against a single employee. Subsection
(e) provides that the percentage of disposable
earnings subject to garnishment will not increase
regardless of the number of creditors seeking
payment. This exception would not be the case
if a garnishment for child support was filed.
Up to 50% of the disposable earnings would be
subject to garnishment in regard to a garnishment
petition seeking to collect alimony or child
support.
When more than one garnishment case is pending
regarding a single employee, O.C.G.A.§18-4-96
provides the procedure that an employer should
adhere to when paying money into the court.
In essence, the burden is placed on the creditor
to demonstrate that it has a superior claim
to money paid into the court. From an employer’s
perspective, there is an obligation to respond
and pay the money subject to garnishment into
the court. It is not the employer/garnishee’s
responsibility to determine the priority of
the competing claims. The code section referenced
above specifically indicates that the money
should be paid into the court and then it is
up to the competing creditors to file a motion
with the court seeking payment against the outstanding
debt. If multiple garnishments are filed and
are pending in multiple counties, the money
subject to the garnishment should be paid to
the court whose summons of garnishment was first
received. The subsequent garnishment should
be answered by indicating that the proceeds
have already been paid to the court for the
first received summons. This information should
be set out in paragraph 6 of the answer of continuing
garnishment. A copy of the first answer paying
the money into the court should be attached
to the subsequent answers. Only one payment
should be made to the court. Once this has been
done, no further burden is on the garnishee/employer
to pay any additional money. Keep in mind, however,
that an answer to each garnishment must be filed
every 45 days.
G. RECOVERY OF COSTS
The administrative costs associated with responding
to garnishments can be substantial. O.C.G.A.
§18-4-97 provides for a garnishee to recover
actual reasonable costs in making a true answer
of garnishment. In order to recover costs, the
garnishee is entitled to deduct $25.00 or 10%
of the amount paid into the court, whichever
is greater, not to exceed $50.00 as reasonable
attorney fees or expenses.
If there is a particular issue which causes
the garnishee/employer to incur substantial
attorney fees beyond the amount allowed under
the code section, the garnishee may file a motion
with the court asking for a hearing, but must
obtain court order before paying the expenses.
No deduction can be made from the portion paid
into the court until after the motion has been
ruled upon. For example, if an employee subject
to garnishment had gross earnings of $500.00
per week and net earnings of $350.00 per week
(after deduction for State and Federal withholding),
25% of $350.00 would be subject to garnishment.
This would equal approximately $87.50. The amount
deducted would be $25.00 or 10% of the amount
paid into the court (in this case $8.75). The
statute allows the employer to recover the greater
of $25.00 or 10% of the amount paid into the
court. The additional $25.00 deduction, in this
example, should be added as an itemized amount
in paragraph 3 of the answer to continuing garnishment.
If an employee were earning enough such that
over $500.00 would be paid into the court, 10%
of that amount ($50.00) would be the maximum
that could be deducted as expenses.
