Every once in a while, a spouse pays off his spousal support in full but his wages continue to be garnished. Excessive garnishments for spousal support have been known to reach into the tens of thousands of dollars. Not good.
Now what? Can you get your money back? If you received it, do you have to pay it back – and when and how? The answers intertwine unique aspects of family law, debtor-creditor law, and bankruptcy. Though the former two laws vary from one state to another, let’s examine over-paid spousal support in the context of wage garnishment.
When couples divorce, the family law judge may require one party to make spousal support payments to the other. The purpose of this support arrangement is to ensure that both spouses maintain to the greatest degree possible the same standard of living they enjoyed during their marriage. In some states, these payments are called “alimony." Some of us may be familiar with this term.
Spousal support or alimony can last forever, i.e., until the death of one spouse or the other, but often, it expires after a set time. This time usually runs for a reasonable time in the circumstances – often until the dependent spouse can get on his or her feet or until remarriage or some other change in financial circumstances that render the support unnecessary.
In many states, spousal support payments are administered by the local family support agency, with payments made directly to that agency, which in turn pays the dependent spouse. In others, one spouse makes the payments directly to the other. In most jurisdictions, regardless of the approach, the wages are automatically garnished from the paying spouse’s wages.
As with spousal support or alimony, state laws determine the availability, validity, and legal process for garnishing wages to satisfy spousal support obligations.
Garnishment is the process whereby an individual’s wages, bank accounts, or other benefits are attached to satisfy a debt. Though four states preclude attachment of wages for consumer debt – Texas, South and North Carolina, and Pennsylvania – all states permit garnishment for child and spousal support.
Employer Obligation to Satisfy Wage Garnishment
A wage garnishment order for spousal support typically issues from the same family law judge that handled the divorce or marital dissolution proceedings. Once the order is issued – usually entitled a “Writ of Garnishment" – it is served on the employer. The employer is then legally obligated to comply with the order.
Failure to comply with a valid garnishment order can land the employer in hot water. Depending on the state, not only can the employer be held in contempt of court, it can be held liable under state law to the dependent spouse (who is theoretically the creditor). Indeed, in some cases and jurisdictions errors in complying fully and correctly with a garnishment order can lead to a judgement against the employer for the entire amount of the employee’s debt.
In other words, it is an error the employer does not want to make. Again, depending on the state, either spouse may sue to employer for mistakenly failing to garnish the employee’s wages. This is important to remember when considering over-payments, i.e., that employer errors in garnishing wages can result in liability to the employer.
Ending a Garnishment
Since garnishments often expire for reasons unknown to the employer, it is always best for the spouse paying the support to affirmatively inform the employer that the debt has been satisfied and/or that no further garnishment should take place.
If you have a copy of the garnishment order, with the termination date indicated, give it to the employer right away. This will make any non-compliance willful. Because of the employer’s potential liability for willfully violating the order, most employers terminate the garnishment immediately.
Sometimes the employer fails to calendar the termination date, or the reason for garnishment ending, such as the re-marriage of the dependent spouse, is outside its knowledge. In those cases, the paying spouse is wise to return to the Judge who originally issued the order and ask for a “Notice of Termination of Wage Order."
This Notice should then be promptly served on the employer to ensure cessation of the garnishment. The key is getting a legal document in front of an employer so it can no longer claim ignorance to the garnishment’s termination or satisfaction.
Process for Recovering Over-payments
Sometimes the employer continues to garnish your wages after the garnishment order expires. The question then arises: how do you get your over-payments back and who is responsible? Depending on the situation, responsibility for the over-payments can be laid at the feet of either/or the:
- dependent spouse
- paying spouse.
That’s what makes it complicated.
Think it through. The employer received the order, so it will be on notice of the garnishment termination date if that date is expressly written on the order. Very often this is a term of years, however, with no exact date given, it makes the termination date of long-running obligations easy for employers to miss (especially when that date is several years after receipt of the original order).
Nonetheless, some states do hold the employer responsible for overpaying spousal support garnishments, in the same way the employer may be held responsible for not garnishing in the first place. It’s the same logic but on the other end of the stick, all boiling down to one thing: the employer must garnish or not garnish as per the terms of the garnishment, or else potentially face liability to someone.
The recipient of the over-payments – the dependent spouse – also bears some responsibility for over-garnishment of spousal support. The dependent spouse applied for the order in the first place, is necessarily aware of the terms for termination, and thus cannot argue with knowing about the termination date. Moreover, if the garnishment termination pertains to remarriage, or continually living with another person, then that knowledge is exclusively in the dependent spouse’s province. In this situation, holding the employer responsible for over-payment is unlikely to happen. The equities, in other words, make the recipient dependent spouse more culpable for the over-garnishment than the employer.
In that situation, the overpaying spouse should return to the original judge who issued the spousal support garnishment order. File a motion for refund or the like and ask for all of the money to be repaid by the recipient spouse. After weighing the equities, the judge may order a lump sum payment be made by the recipient spouse, require repayment via installment payments made over time (in effect reversing the debt with a garnishment of the dependent spouse’s wages), or adjust/offset other, ongoing debts such as child support.
In balancing and weighing the various factors, the trial judge will often have wide discretion in doing the right thing, taking into consideration the original order, the clarity of the termination date, the amount of money over-garnished, and the paying spouse’s failure to notify the employer and monitor his own spousal support garnishment termination date.
Can you be fired for demanding the employer stop the garnishment or filing a claim for reimbursement?
Federal law only provides that a debtor cannot be terminated due to a single wage garnishment. For further protections, the employee must look to state law. Some states protect the employee from any kind of adverse employer action for any number of multiple garnishments, whether two or twenty. Some also expand the protection to bar any adverse action that in any way pertains to the garnishment, which would arguably include claims by the employee against the employer for over-garnishment of spousal support. Whether and to what extent adverse employment action can be taken against you is thus a quite complicated mix of federal and state law.
Can the over-payment be discharged in bankruptcy by the spouse?
No. Though the law is not settled, a spousal support obligation cannot be discharged in bankruptcy, even if it pertains to reimbursement of an over-payment made through the garnishment process. Both the spousal support obligation and the garnishment over-payment are deemed non-dischargeable.
Between states, there are countless variations in how spousal support is paid and how garnishments are handled. Some are highly technical and some are equitable, where many factors are considered by the judge. If you are the employee spouse whose spousal support obligation was over-garnished, depending on the state where you reside, you can look to the employer, the dependent spouse, or both, to obtain reimbursement.
In both cases, the court may or may not weigh your own responsibility for not immediately demanding your employer to stop the garnishment, if that was the case. Be sure to contact qualified local counsel to help you traverse the peculiarities of your state laws on the matter, should an effort at informal resolution fail.
Cases Where Employer Held Liable for Incorrect Garnishment:
Georgia: Oxmoor Portfolio, LLC v. Flooring & Tile Superstore of Conyers Inc., 740 S.E.2d 363 (Ga. Ct. App. 2013).
Oklahoma: Discover Property and Casualty Ins. Co. v. Collins, 2013 OK CIV APP 29.
Wage Garnishment Laws:
Collection of Wage Deduction Laws by State: https://www.shrm.org/ResourcesAndTools/hr-topics/compensation/Documents/deductionlaw.pdf.
Federal Law Protection from Adverse Action Against Employee for Wage Garnishment:
U.S. Dept of Labor Memo: https://www.dol.gov/whd/garnishment/index.htm.
Employer’s Duties and Liabilities for Wage Garnishments:
Bankruptcy – Obligation to Repay Over-Garnishment of Spousal Support Not Dischargeable:
In re Taylor, 2013 WL 6404952 (10th Cir. 2013).