Thursday, March 03, 2005

Wage Garnishment Procedures in California

So you have been to court, won a money judgment and the debtor has not paid. What is next? If the debtor has a job, you can initiate a wage garnishment to have the debtor's employer withhold money from his or her paycheck as payment towards the judgment.

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.

The information provided in this article is general information only and is not intended as legal advice. DO NOT use this information as a substitute for obtaining qualified legal advice or other professional help. Please contact us at (619) 448-2129 for a consultation.

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.

73 comments:

Anonymous said...

I have a Writ of Execution issued by San Diego Superior Court as Unlawful Detainer complaint. The judgement debtor works at a retail grocery store in San Diego County. The chain store is headquartered in Los Angeles. How do I determine where to file the Earnings Withholding Order, i.e., San Diego or Los Angeles?

Carl Starrett said...

The Writ of Execution is probably directed to the Sheriff of San Diego County. Having the wage garnishment served at the store where the judgment debtor works is sufficient.

Take the original Writ and two photocopies to the Sheriff's office at the nearest court house. Keep a copy of the Writ for yourself. Fill out an Application for Earnings Withholding order and the Sheriff will handle the rest.

Anonymous said...

Do you have to use the sherriff department for the EWO if you have internal personnel to monitor the wage garnishment?

Carl Starrett said...

Although some judgment enforcement activities allow the used of a registered process server in lieu of the Sheriff's Department, a file must still be created with the Sheriff and all money is ultimately collected and distributed by the Sheriff.

An EWO is one judgment enforcement activity that cannot be served or monitored by a process server. Only the Sheriff may issue and serve the EWO.

Anonymous said...

i submitted an EWO in LA county. the employee never responded to the wage garnishment document. more than a month has passed since it was served. i was told the employer had 10 days to respond. what is my next course of action?

Carl Starrett said...

I've posted a detailed article on this exact topic. Please see the link below:

http://www.chs-law.com/2007/06/california-wage-garnishments-and-duties.html

Anonymous said...

I obtained a EWO for child support 5 years ago, two years ago the debtor stopped working for that company,and has not paid towards the debit owed since. How do I reinstate the EWO with his new employer?

Anonymous said...

I have a wage garnishment in place where my x husband works for the monthly spousal support. Yet he is at this point almost a year in arrears. What steps can be taken for the arrearages. Is there another type of wage garnishment for the arrearages.

Anonymous said...

We have a wage garnishment filed with Shasta County for repayment of money due my husband from his ex-wife due to a marital agreement filed in 2004. The ex has filed for an exemption and states all of her expenses in such a way that it appears she is spending more than she is making. This is her reason for saying she can not afford to pay the debt. How can he prove that these numbers are inflated and/or she is overspending by her own choices? If you are "poor" then don't spend $200 monthly for entertainment and $100 for laundry - especially when you work from your home. How do we oppose this request for exemption and have the wage garnishment to be enforced? It is newly in place and we are worried that we don't know how to prove her ability to pay her debt.

Anonymous said...

We have a court date to deal with a requested Exemption from wage garnishment coming up. Can the debtor insist that I not be in the courtroom to view the proceedings? My husband did the wage garnishment and his ex does not want me present in court and has threatened to make a real scene if I am present. Please help me understand if I can attend as mental/emotional support for the hubby?

Carl Starrett said...

Court proceedings are open the public. The only way you could be excluded would be if the judge ordered it. You may or may not be allowed to sit with your husband while he addresses the judge. You might be required to sit with the rest of the public.

Anonymous said...

I am looking for the title of the appropriate person to send forms "EWO" to begin the wage garnishment at my x's current employer. Can it go to a general department such as payroll or human resources?

Carl Starrett said...

You are not legally required to specify a person or department, but it is helpful. If you can locate the address for the human resources department, that is the best address to use.

The sheriff's office will often try to serve the EWO via certfied mail first. I usually request that the personally serve it instead. That will get the employer's attention and makes it more likely to get to the right department.

Anonymous said...

Regarding previous post about particular person to send an EWO, should the EWO go to the the local store he works in (Calif) or the corporate offices in another state (Ohio).
My lawyer said it would be less expensive for me to find the info and then she would execute. Otherwise I would have to pay her for the time she spends looking for it.

Carl Starrett said...

Send the EWO to the local store. The Sheriff's Department might not be willing to send it out of state and they might not honor it if it is send to the employer's Ohio headquarters.

Anonymous said...

Hello,

I am a bit confused. If the only process to obtain a wage garnishment is file for a wrot and the EWO, who determines the % that will be withheld from the paycheck?

Do we have to go to court again?

Thanks

Carl Starrett said...

The most than can be withheld is 25% of the debtor's net pay. The Sheriff will give the employer written instructions on how much to withhold from the employee's paycheck.

If the debtor objects and feels 25% is too much, the debtor can file a claim of exemption with the Sheriff. If the creditor opposes the claim of exemption, the creditors my file opposition and get a hearing date form the court. Then the judge will decide how much should be withheld.

If the debtor does not file a claim of exemption, then 25% will be withheld.

Stan said...

http://www.alamedacountysheriff.org/CWS/civil.htm

some county sheriff's offices will not serve EWO....registered process servers only...

Anonymous said...

If a claim of exemption has been granted for less than 25% and a 2nd EWO comes exist after the 1st, could I send the remaining of the 25% to the other creditor or do I have to wait until the 1st is completed.

Anonymous said...

As someone who is having his wages garnished. Is there any way for them to come after a vehicle in my name if i was to purchase one now?

Anonymous said...

My mother in law has a judgement against my father in law.

He however is working on and off under the table and its not possible to garnish his wages.

Is it possible to garnish his new wifes wages?

If so what steps are traditionally need. If not where can I read more about this. What California Code can I refer to?

Thank you.

Robert said...

I need to Garnish wages from my Ex-Husband and he is self-employed (Insurance sales) and works for several Major Insurance groups. How do I file "in the county" of his employer? Do I go directly to the Home Office, (from where he receives his checks)?

Anonymous said...

With regard to the EWO on a company headquartered in Ohio with the employee based in CA, if the Ohio Sheriff who served the EWO refuses to accept the garnishment checks and the CA Sheriff refuses to accept the checks as they could not serve the levy outside their jurisdiction, who can be a levying officer to accept the checks?

Anonymous said...

My ex-husband has a garnishment served at his current employer which is a seasonal position. My ex also works for another company in which the garnishment has not been established. Would I be able to send the garnishment to his 2nd job and how would I be able to get the maximum amount from both employers. He is in arrears to date of $6,000.

Anonymous said...

My mother in law has a judgement against my father in law.

He however is working on and off under the table and it is not possible to garnish his wages.

Is it possible to garnish his new wifes wages?

If so, what steps are traditionally needed? Where can I read more about this. What California Code can I refer to?

Thank you.

Anonymous said...

I received a judgement i year ago as the result of an unlawful detainer action from the County of Riverside Superior Court. The debtor has moved to Mohave County Arizona. I assume the writ & EWO come from Riverside County, but is the procedure for serving any different out of state? Does the Abstract of Judgement have to be filed in the out of state county? Any time constraints?

Gary

Carl Starrett said...

You must register the judgment in Arizona and use Arizona law to enforce it there.

George said...

I just won a small claims suit and the 30 day period for the defendant to appeal has passed and no effort has been made to make payment, can I file a writ of execution to garnish wages or do I have to anything else first?

Jane Roberts said...

I have a civil judgment awarded against me from a previous employer for embezzlement dated 11-18-1998. My wages with my current employer are being garnished @ 25% of my disposable earnings after taxes. I was told this judgment must be renewed every 10 years. I have not received a notice of renewal. Can I petition to have the garnishment stopped?

Csassy said...

California is trying to garnish my wages here in Tennessee is that possible? Nothing came from my employer here in TN, but it came from Cali.

kris white said...

1/5/09
My ex-spouse left a lg oil company to keep from paying spousal support and COBRA as ordered by the Riverside Family Court 11/07. He has disappeared for all intents and purposes. How do I locate him to enforce the court's property settlement decision? He has also taken off with his pension/profit sharing which I was to receive half of. Our divorce was bifurcated
(a HUGE mistake on my part)so he is remarried to his girlfriend and has no reason to pay to get his divorce. He already has it.
Thank you,
K White

Anonymous said...

i am in the state of CA. i would like to know, can you have two court ordered wage garnishments at the same time? if so, is it 25% total or 25% each garnishment for a total of 50% of my wages? thank you

Anonymous said...

I recently won a wage claim against my former employer for 1,500 the problem is he was also my former landlord and has an eviction judgement against me for 6,000 and has now filed to have my wage claim deducted from that can he do this

Carl Starrett said...

If your former employer files the write paperwork with the court, he can apply your judgment as a payment on what you owe him. It is unusual, but legally possible.

christina h. said...

i finished paying off my wage granishment last nov. now the sheriff levy offices are granishing me saying i owe them 500.00 for thier prossecing fees. is this right ? is there anything i can do about this ?? please help !! rialto,ca & they never sent me notifcation on it ethier. this week my paystub had $51.00 taken from it.

Anonymous said...

I am attempting to garnish a friends wages for a past due debt.I have had her served & today she called me and wants to meet to work out a payment plan after ten months.She mentioned bankruptcy to me...Can she file now and wipe out my judgement against her?

Anonymous said...

I have a money judgment against an employee in California, but the employee gets paid from an employer out of the State of California. Do I just send the EWO to the employer out of state or is there a form I must fill out?

Anonymous said...

A bank has a judgment against me in California. I am on Social Security Disability, can they collect a judgment from Social Security and/or can they freeze my bank account and take money from bank account (I've heard you have to make more than $2,000 or so to take money from your bank account). WHat are the laws and if so, what can I do to stop them?

Anonymous said...

I have a judgment against me for a specific amount (with regard to rent). However, after the judgment, the landlord did not return my deposit and added a lot of other charges. He then filed a Writ and served it on my employer. I don't object to the landlord collecting what is owed, but how can I get the writ modified to reflect the proper amount owed and giving me credit for my deposit? I'm in California.

Anonymous said...

I got sued by a credit card company back in Michigan and now have become a resident of San Diego. My employer has just received a garnishment order on 8/21/09 and they will start to garnish my wages on Sep/15 which is only in 8 days. The judgement is from Michigan, not California, can they garnish here without oging through the CA courts to validate the garnishment?
Thank you!

Anonymous said...

I had a creditor send and EWO to my employer who denied the garnishment because I am already having my salry garnished for child support. Do I still submit an exemption? Will the creditor come after my employer or me?

Heidi said...

I have a Writ of Execution issued by County of Pleasanton Superior Court as Unlawful Detainer complaint. The judgement debtor works at a company in San Francisco. Where should I file the Earnings Withholding Order? Pleasanton (Alameda County) or San Francisco? Your answer will be greatly appreciated.

Anonymous said...

I have an EWO for child support that includes add ons for the non custodial party's half of childcare as well as payment towards his substantial support arrearage. The total amount of withholding calculates to more than 50% of disposable income. Is there anything that can be done through the court to have the employer increase the percentage beyond 50% considering this person lives at home with mom and has no dependants other than himself?

Anonymous said...

wage garnishment and how to is it best to hire an attorney to make sure the paperwork is filed correctly and can I add those attorney fees to the amount owed in the garnishment

Anonymous said...

I want to get an earnings witholding order for the spouse of the debtor since she is the one working currently. I am in LA county. I used small claims form SC 105 to request permission to obtain the EWO and a hearing was set. I am unsure of what will occur in the hearing. Are there only certain instances in which the judge will allow this? What can I expect to be asked? I don't want to be denied due to my unpreparedness and lack of familiarity with proper court protocol.

Anonymous said...

I received notice from a Georgia Court that my California wages were being garnished for association fees. The creditor did not file in California where I live and work, albeit I own a house there in Georgia. Disney is the Parent Company of ABC TV in Hollywood where I work, and Disney conducts business in Georgia, but not ABC TV. Disney Worldwide Payroll is the payor. Is this Georgia Court garnishment legal in California? I thought a judgement would have to be obtained in a Calif Court also.

Anonymous said...

The debtor's only income is a pension and social security. Can a wage garnishment be levied against him for those funds? If not, can a portion of his checking account be siezed?

Anonymous said...

I read here that only 25% can be withheld from a paycheck, I live in California. I have some creditors coming after me, but I have been unemployed now for several months. Wehn I reestablish a good job, it means only 25% total, not per creditor, right? Because I owe more than one company, I want to repay everything when I am able, but I cant have multiple creditors each asking for 25%

Anonymous said...

I have an order of income withholding as a private withholding oder payable diretly into plantifs bgank account. Does this include if no wages are attachable, ones private holdings such as bank accounts, tax refunds, house etc.?

Anonymous said...

My ex is supposed to pay me $400/month on the 7th of each month. Today is only the 10th...do i have to wait for a certain amount of time to pass before filing a writ of execution? Also, I know he has money in a retirement acct, instead of wage garnishments can I get the full amount of the judgement from that account?

Anonymous said...

I represent myself in a complex contested divorse in California. I just received an Income Withholding for Support Order (IWO) ordering my husband's employer to withdraw current and past-due child and spousal support from his paychecks. He currently has a garnishment for attorney fees. The child support garnishment has priority by law, but it may have to replace all or part of the other garnishment. Any advise for making sure that the HR Dept of his company complies with the order and takes it seriously (as I'm not represented by an attorney). Must the IWO be served on the employer or is certified mail sufficient? Should it be accompanied by a letter citing the law? Any suggestions to make sure that it is complied with quickly and taken seriously?

Kelly said...

I started collecting from the debtor for an unlawful detainer judgement and then she stopped making payments. Can I start with the wage garnishment process now even though I've collected from her directly?

Anonymous said...

I have a judgement against me. I understand I can volunteer to have my employeer deduct a desired amount and pay my debt to prevent a wage garnishment form happening. Is this true? If so can I set the amount for less than the 25% maximum restrictions?

Anonymous said...

i dont know yet exactly what the law is but i think my employer had ten days to inform me of the garnishment. but i was not notified until the other day. which made it over a month. i was never notified. i found out when my check was short 800.00 dollars. the lady at the payroll can get into trouble for not notifying me . am i correct in that?

Anonymous said...

I won a money judgement against my tenant. I tried to submit a application for ewo to the Sheriff's in LA, CA. Clerks won't accept it because they are saying it has a different county and out of state address on the EWO than the writ. The tenant lives and works in the county where the writ was issued but the corporate office is out of state that accepts and processes writs and ewos.
So, now what ? Do I hire a process server, paralegal, attorney ? I am getting conflicting info. The clerks at the civil office are saying I need someone with an LA address that is an agent in service. The corporation is saying it will garnish once I have the EWO with the levying officer file # and to take it to a local sheriff station in my area. How much should this cost ?

angies1120 said...

Hi I received an earnings withholding from an ex landlord. I never knew I had a case against me. I filed a claim exemption in December 2010 to the sherries office telling them to withhold nothing. They got no response from the ex landlord in ten days so the sent Hr a letter saying do not withhold anything void the other form sent. Now a year later I have the a with holding order AGAIN? Can they do that? Since they didn't respond ? I'm in California. Thank You for the help.

Anonymous said...

Can an application for issuance of writ of execution be filed by mail or must it be in person with the county clerk?

Also, is there a sample to follow for filling in section "and provides as follows:"? I have no idea what to type into the form.
Thank you.

Jerry G said...

I live in CA but have property in AZ. My HOA obtained a writ of execution in AZ for wage garnishment and served my employer. I figured since I am a CA resident, my employer should've advised them taht they'd need a sister-state judgment in order to enforce. But my company is withholding funds. They are yet to dispurse it to them, and I have gone back and forth w/my legal and payroll dpt explaining that the writ is not withing jurisdiction and it has to be served by a CA sheriff, but all they keep tellin me is to have my attorney write them a letter. Why wont they listen, is it possible for me to write the letter?

Tax Debt said...

I just won a small claims suit and the 30 day period for the defendant to appeal has passed and no effort has been made to make payment, can I file a writ of execution to garnish wages or do I have to anything else first?

Anonymous said...

We have several contract employee's, what's the law state about Wage Attachments on their payments?

RR said...

I have a writ (WOE) in effect garnishing my ex for failure to pay the judgment from the divorce. So far her employer,US Air Force, has been making the payments for almost a year but the LA County Sheriffs office has been very sluggish and irregular at actually making the checks out I went from June through the end of July with no payments pending then two turned up as with in a week of each other. The web site does not tell you what pay period they were from so I have to guess to see if all are accounted for, it would be so easy for them to put the date the check was sent by the employer to know but I suppose it is to much to ask for. My questions are 1. How do I get an accounting for those checks from the sheriffs office? 2. When do I need to ask the court for an extension as I don't beliive the payments will be complete in 2016 when the judgment turns 10 years old. Thanks for your wisdom.

Anonymous said...

We are the creditors and filed a wage garnishment due to unlawful detainer against our tenants. The tenants have filed a claim of exemption and requested instead a withholding of $100 every 2 weeks. Is this acceptable to accept in lieu of wage garnishment?

Therence Sim said...

A tax professional has the option of appealing to the OPR. If the complaint is later found to be insufficient or false, the practitioner may be reinstated after five years.

Anonymous said...

I obtained a garnishment and received three payments but they suddenly stopped. After calling the employer they said "Bankrupcy" I never was notified by the BK court
What are my rights no? Can BK stop my payments from the judgement?

Carl Starrett said...

The automatic stay in bankruptcy is self-executing. If there is a bankruptcy on file, you need to stop collection efforts immediately and it doesn't matter that you weren't listed. You have noticed and it is your duty now to investigate this further before taking any additional action to collect the judgment.

steve rensch said...

I have an Az judgment. Will the LA County sheriff serve a Writ issued by the Az court, or do I have to do something to register the judgment in Calif and then get a Calif writ?

Carl Starrett said...

A California sheriff will only enforce a writ issues in California. You'll need to domesticate the judgment here and then proceed to start the garnishment process.

AttorneyForBankruptcy said...

After obtaining Writ of Execution it is must to file EWO application means Earnings Withholding Orders application.

Thanks

Anonymous said...

I have won a judgment against direct buy of Northern California and I am unable to collect my judgment. I served them with a writ of execution and Levy and out that B of A no longer serves in the county of the judgment. I have to go through central processing in Southern California. when I called central processing they are backlogged 3 to 4 months. is there another way to garnish this business is wages or a better way to collect on my judgement?

Anonymous said...

Is it possible to increase my deductions on my W-4 so that my weekly net pay is low enough to match minimum wage and have a zero garnishment? I am referring to the box that says 'additional amount you would like withheld from each check'. If I have $220 extra withheld each week it would put my net at $300. Using the formula would mean garnishing is not allowed, i.e. equal to zero. Would this work?

Kimberly Ridgeway said...

I got a judgement and now I'm ready to garnish his wages after trying for 18 months to negotiate a payment plan. But I don't know where he works. Can I still file the Writ of Execution and the EWO?

Anonymous said...

Dose the person who's wages are being Garnished recive any other notice that this action is being taken other that the initial judgment?

Anonymous said...

If an employee filed an exemption for wage garnishment that was accepted/approved by the court in San Diego county, does the employee have to submit a new exemption if he/she changes employers? The creditor had to submit a new EWO to the employee's new employer for the same case. The employee is still in the state of California, makes approximately the same salary & has the same expenses.