A wage garnishment usually arrives as a surprise: a notice from your employer’s payroll department that part of every paycheck will now go to a creditor. By the time that happens, the creditor has already won a court judgment, often a default judgment in a lawsuit you may not have known about.
California limits how much can be taken from each paycheck, and it gives you a way to ask for more of it back: the claim of exemption. This article follows a garnishment from the order to the outcome.
Court Garnishments and Tax Levies
This guide covers garnishments by a judgment creditor, such as a credit card issuer or a debt buyer that won a lawsuit against you. Garnishments by the IRS or the Franchise Tax Board follow different rules, do not require a court judgment, and are released through different procedures. Those are covered in our guide to tax liens and levies.
Wage withholding for child or spousal support is also separate. It is governed by its own rules and takes priority over an ordinary garnishment.
The Earnings Withholding Order
Understanding how the order reaches your paycheck and how much it can take.
How it arrives
After a judgment, the creditor obtains a writ of execution from the court and delivers it to the levying officer, which in Los Angeles County is the Sheriff, with an application for an Earnings Withholding Order. The levying officer serves the order on your employer. Your employer must give you a copy, along with a notice explaining your rights, and begin withholding from your pay shortly afterward.
How much can be withheld
For an ordinary judgment, the maximum per pay period is the lesser of two figures:
- 20 percent of your disposable earnings, or
- 40 percent of the amount by which your disposable earnings exceed 48 times the state minimum hourly wage, for a weekly pay period. The multiple is adjusted for other pay periods, and a higher local minimum wage may apply where you work.
Disposable earnings are what remains after legally required deductions: income tax withholding, Social Security, Medicare, and state disability insurance. Voluntary deductions, such as health insurance or retirement contributions, do not reduce disposable earnings for this calculation.
How long it lasts
The order generally stays in effect until the judgment, with interest and allowed costs, is paid. Only one ordinary garnishment can be in effect against your wages at a time, so a second creditor must wait its turn. A support order can take priority over both.
The statutory limit is what your employer withholds automatically. It does not account for your rent, your children, your medical costs, or anything else in your household budget. That is what the claim of exemption is for.
The Claim of Exemption
Asking for some or all of your wages back, with a sworn budget to support the request.
The forms
The claim of exemption is a Judicial Council form filed with the levying officer, not with the court. It must be accompanied by a financial statement listing your household members, your income from every source, your monthly expenses, your assets, and your debts. Both forms are signed under penalty of perjury.
Full or partial exemption
The claim asks for one of two things:
- A full exemption, when all of your earnings are needed to support you and your family.
- A partial exemption, when you can afford to pay something, but less than the order takes. You state the amount you need each pay period and offer to have the rest withheld.
The figures in the claim and the financial statement must agree with each other and with your pay stubs, because the creditor’s attorney and, if it comes to that, a judge will check them. We build the budget from your actual pay stubs and expenses before the forms are filled out.
Claims fail most often because the budget is filled out wrong. People list expenses that a judge will not treat as reasonable and necessary, such as credit card payments, cable and streaming subscriptions, or support for adult children, and they leave out expenses that do count, such as medical costs and work-related transportation. The questionable items are struck, the budget loses credibility, and the judge may conclude there is room for the garnishment after all. The same problem sinks financial statements given to the IRS, as our payment plan guide explains.
File promptly
Every pay period that passes is money withheld under the full order. While a claim is pending, the levying officer holds the withheld funds rather than paying them to the creditor until the claim of exemption is resolved.
The creditor’s response
The levying officer sends the claim to the creditor, which then has a short period, generally ten days, to file an opposition. If the creditor does not oppose, the levying officer modifies or ends the order according to your claim. If it does oppose, the question goes to a hearing.
- Recent pay stubs, and the income of a spouse or other household members
- Rent or mortgage, utilities, food, transportation, insurance, child care, and medical costs
- Balances of your bank accounts
- Other debts and the monthly payments on them
The Hearing
Showing a judge what your household needs to live on.
What the judge weighs
The standard is what is necessary for the support of you and your family. Judges look at household size, fixed obligations, medical needs, and whether each expense is reasonable for your circumstances. Expenses that look discretionary, such as entertainment or an expensive vehicle, will raise questions. The creditor may argue that particular expenses are unnecessary or overstated, and you should be ready to explain each one.
The possible outcomes
The judge can do one of four things:
- grant the full exemption, so the garnishment stops;
- deny it, so the garnishment continues as ordered;
- set a different amount to be withheld each pay period; or
- continue the hearing to a later date if the court needs additional proof of your expenses and you agree to provide it.
Whatever the judge decides, the levying officer then notifies your employer, and money held while the claim was pending is released according to the ruling.
Limits on the exemption
The exemption for necessities does not apply in every case. It can be unavailable when the judgment is for certain basic necessities that the creditor itself supplied, and garnishments for child or spousal support follow separate rules. We check whether any exception applies before the claim is filed.
Other Routes
Ending or reducing the garnishment by other means when the claim alone is not enough.
An agreement with the creditor
Many creditors will release a garnishment in exchange for a voluntary payment plan or a lump-sum settlement, because voluntary payments cost less to collect and continue if you change jobs. A pending claim of exemption often helps that conversation. Once the creditor has filed an opposition, however, the claim is in the judge’s hands and must be resolved by a court order, so any agreement reached after that point is presented to the court rather than simply arranged between the parties. Our guide to settling a collection lawsuit explains the terms to look for.
Challenging the judgment
If the judgment was entered by default and you were never properly served, or other grounds exist, a motion to set it aside can end the garnishment and reopen the case. Deadlines apply. Our guide to being sued by a debt collector explains how the case would then proceed.
Bankruptcy
Filing bankruptcy stops a garnishment immediately through the automatic stay, and we notify the employer and the levying officer when the case is filed. In most cases, wages garnished in the 90 days before filing can be recovered. If the debt behind the judgment is dischargeable, a Chapter 7 bankruptcy eliminates it permanently.
A judgment creditor can also levy a bank account. California automatically protects a set amount in a personal account, and you can claim more through a separate claim of exemption. The deadline for that claim is short, measured in days from the notice of levy, so call right away when a bank freezes your funds.
After the Order
Living with the result, and revisiting it when circumstances change.
A modified order
If the claim succeeds in whole or in part, your employer receives a modified order or a notice ending the garnishment. Check your next paycheck to confirm that payroll applied it.
When your income or expenses change
A significant change in circumstances, such as a new child, a medical emergency, or reduced hours, can support a new claim. Without a real change, a second claim against the same order is generally not allowed after a decision on the first.
Changing jobs
A garnishment does not follow you automatically to a new employer. The creditor must have a new order served there. Creditors often do, and the same exemption process applies.
Your job is protected
California law prohibits an employer from firing an employee because wages were garnished for a single judgment.
Claim, Agreement, or Bankruptcy?
| Option | Best when | Result |
|---|---|---|
| Claim of exemption | Your budget cannot absorb the full withholding. | Withholding reduced or ended; the judgment remains. |
| Agreement with the creditor | You can pay a lump sum or steady voluntary payments. | Garnishment released; judgment satisfied when paid. |
| Bankruptcy | The judgment is one of several debts you cannot pay. | Garnishment stops at filing; most consumer judgments discharged. |
What It Costs
The levying officer generally does not charge a fee to file a claim of exemption.
We prepare the claim of exemption and the financial statement for a flat fee. Representation at a contested hearing, or a motion to set aside the judgment, is quoted separately, either as a flat fee or hourly. The arrangement is set out in a written agreement before work begins.
- The Earnings Withholding Order and the papers your employer gave you
- Your last two or three pay stubs
- A list of your monthly household expenses
- Recent bank statements
- Any court papers from the lawsuit that led to the judgment
Gregory Grigoryants is a California attorney (State Bar No. 286804) who has represented individuals, families, and business owners in bankruptcy, debt collection defense, and tax resolution matters for more than 13 years. He practices from offices in Sherman Oaks and Beverly Hills and speaks English and Russian.