Writ of Execution - To begin a wage garnishment, you must first obtain a document called a Writ of Execution. A Writ of Execution of a form that is available from the clerk of the court where you obtained your judgment. You must fill out the form completely and submit it to the court clerk with a nominal filing fee. The Writ of Execution is a certification of the amount owed and allows you to send the levying officer to the debtor's employer to begin the wage garnishment. In most counties in California, the Sheriff is the levying officer.
Application for Earnings Withholding Order - Wage garnishments are also called Earnings Withholding Orders ("EWO"). After you obtain the Writ of Execution, you must also fill out the EWO application. The EWO application is another form that can be obtained from the court clerk.
After filling out the EWO Application, you file it and the original Writ of Execution with the levying officer for the County where the debtor's employer is located.
An Earnings Withholding Order (wage garnishment) requires an employer to withhold and remit up to 25% of the debtor’s disposable earnings (net income) to the sheriff or levying officer for payment to the creditor. The withholding amount is 50% if the writ is for spousal or child support. The Earnings Withholding Order remains in effect for 10 years or indefinitely (if for support) until the judgment is paid, the debtor ceases to work for that employer, a higher priority Earnings Withholding Order takes effect (such as an Earnings Withholding Order for child support) or the Order is terminated by operation of law (court order or failure to file Opposition to Claim of Exemption.)
If the earnings withholding order is not for spousal or child support, the debtor may file a claim of exemption with the Sheriff in an attempt to terminate the wage garnishment or to reduce the withholding amount. The Sheriff will mail a copy of any claim of exemption and instructions on how to oppose the claim to the creditor. The wages of a spouse not listed as a debtor on the writ of execution may only be garnished pursuant to a court order.
An Earnings Withholding Order should be used to levy on monies earned by the debtor for personal services rendered (whether called wages, salary, commissions, bonuses, or anything else.)
The Earnings Withholding Order includes a warning to the employer stating, "It is illegal not to pay amounts withheld for the Earnings Withholding Order to the levying officer. Your duty is to pay the money to the levying officer who will pay the money in accordance with the laws that apply to this case. If you violate any of these laws, you may be held liable to pay civil damages and you may be subject to criminal prosecution." The Sheriff’s responsibilities are limited to serving the earnings withholding order and receiving and disbursing collected monies. The Sheriff cannot call or otherwise attempt to compel an employer to comply with the wage garnishment. However, Code of Civil Procedure Section 708.210 et seq. allows the creditor to sue the employer for failing to comply with a wage garnishment order.
About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.