Wage Garnishment Procedures in California
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.
posted by Carl Starrett @ 9:47 PM
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24 Comments:
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?
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.
Do you have to use the sherriff department for the EWO if you have internal personnel to monitor the wage garnishment?
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.
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?
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
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?
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.
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.
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?
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.
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?
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.
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.
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.
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
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.
http://www.alamedacountysheriff.org/CWS/civil.htm
some county sheriff's offices will not serve EWO....registered process servers only...
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.
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?
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.
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)?
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?
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.
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