Garnishment in Child Support Actions
When the assets of the absent parent are unknown and outside the jurisdiction of the court, a garnishment of the parent’s wages to collect past due child support obligations may be appropriate.
Collection of Arrearages
A garnishment is a statutory procedure that permits a creditor to obtain money or assets due to a debtor by a third party, often the employer of the debtor. When state law permits, a garnishment of an absent parent’s wages is one method of collecting past due child support payments. Before garnishment may be used to collect the arrearage owed by an absent parent, the amount of past due child support must be fixed by a court. Garnishments usually require a new writ for each time money is collected, and the amount collected depends on the amount in the hands of the third party at the time that party is served.
Limitation on Garnishments
Garnishments are subject to state and federal wage withholding laws. Federal law limits garnishment for delinquent child support to 60 percent of disposable earnings, where the absent parent is not obligated to support a second family and to 50 percent of disposable earnings where the absent parent has a second family to support. “Disposable earnings” are those earnings available to the parent after necessary withholding. Under federal law, ”garnishment” is defined as any court procedure through which the earnings of any individual are withheld for the payment of any debt. The federal statute preempts less restrictive state laws. As a result, the federal requirement will apply even in a state that does not incorporate these limitations into its wage withholding statute.
The federal limitation on garnishments applies to both public and private employees. The federal government has waived its claim of sovereign immunity in garnishment proceedings against federal employees, including both garnishment of wages and garnishment of federal pension benefits. However, the fact that the federal government has waived sovereign immunity does not create a statutory right of relief. The state court has discretion whether or not to grant the writ of garnishment.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.
As a Buffalo divorce lawyer for 28 years, I have devoted myself to solving the problems that affect families throughout the Buffalo metropolitan area and Western New York. As a family law attorney, I make it my goal to create a partnership of trust with my clients. People put their trust in me to handle cases that can potentially have a long-lasting impact on not only their lives, but the lives of their family as well.
Alexandra M. Rockwood is a Senior Associate Attorney with the Law Offices of Randy S. Margulis & Associates and has been with the firm since early 2020. She primarily practices in the areas of matrimonial and family law, including divorce, child custody, and child support. Alexandra is a practicing matrimonial and family law attorney as…