In the state of Virginia, garnishment laws are typical of many other states in that they are stricter than federal garnishment laws. Virginia law does allow creditors to garnish a debtor’s wages for repayment of debts. In most cases, the creditor will first be required to file a collection lawsuit against the debtor and obtain a money judgement. Usually the most that a creditor will be able to garnish from your wages, regardless of the amount owed, is 25% of your disposable income. There are, however, a few debts which allow the creditor to garnish more, even in Virginia.
Consequences to Creditor for Failing to Comply
As in other states, Virginia creditors who receive a court-ordered garnishment or administrative garnishment order for one of their employees cannot take these orders lightly or in any way try to circumvent them. All garnishment orders must be obeyed to the letter. An employer who willfully fails to withhold may be held in contempt by the court. This may result in fines and even worse.
Situations Where a Creditor Can Garnish a Debtor’s Wages in Virginia
When Court Order of Garnishment Required
Private creditors almost always must obtain a court-ordered garnishment to start attaching a debtor’s wages. The types of debts involved are unlimited, but most often fall into one of the following categories:
- Unpaid credit card bills
- Unpaid consumer loans (e.g., a refrigerator bought from the retailer on credit)
- Unpaid medical bills – doctor, hospital, radiology, etc.
- Unpaid payday loans
- Unpaid judgements resulting from civil litigation where you have no insurance
- Unpaid bank loans or overdrafts
- Unpaid utilities
- Unpaid phone bills
When Court Order of Garnishment NOT Required
As a general rule, governmental creditors need not first file a collection lawsuit and obtain a court order. They can proceed swiftly with an administrative order. Debts that almost universally fall into this category, are as follows:
- Student Loans that have gone into default (this applies to debtors and co-signers alike)
- Federal Income taxes that have been assessed against you for nonpayment
- Child support payments ordered by the court even if you are not in arrears
- Child support that has gone into arrears for unexcused nonpayment
- Court-ordered alimony or spousal support even if you are not in arrears
- Alimony or spousal support that has gone into arrears for nonpayment
- Certain fines and penalties
Virginia’s Unique Limitations on Wage Garnishment
Whether private or governmental, a creditor wielding a garnishment order can NEVER garnish all of your salary. That you leave you and your family destitute, unable to pay basic living expenses. Both federal and Virginia law thus impose limitations on the total percentage or amount of your salary that can be garnished for considerations of public policy that ensures you make enough each paycheck to pay your basic living expenses.
While federal law imposes limitations on the amount that can be garnished, Virginia law imposes even stricter limitations. Federally, debtors are protected in that creditors can only garnish a total of 25% of your disposable income or 30 times the federal minimum wage, whichever is less. Virginia, by contract, provides that a creditor can garnish only 25% of your disposable income, or 40% of the federal minimum wage, whichever is less. So in Virginia, you receive that extra 10% protection. the most that can be garnished from your wages are:
The definition of “Disposable Earnings" for calculating that 25% is generally as follows: those earnings remaining after legally-required deductions. Legally-required deductions include such things as social security, disability insurance, worker’s compensation insurance and unemployment insurance. The disposable income is what remains.
At the present time, federal minimum wages depends on whether your employer does or does not provide health insurance. Employees with employer-provided health insurance are entitled to a minimum wage of $7.25 per hour. Employees without employer-provided health insurance are entitled to $8.25 per hour, or one dollar more per hour (on the theory they need that extra dollar to pay for their own health insurance).
Here’s an example of how application of these two rules of limitation would work: Suppose you take home $800 per week after legally-required deductions. 25% of that amount is $200. Suppose your employer does not provide health insurance. 40 times your minimum wage is $330. The lesser of the two is $200. That is the maximum amount that can be garnished from your paycheck. In that case, your take-home pay would be $800 – $200 = $600.
Garnishment for Child Support, Student Loans, and Unpaid Taxes Might Have Different Limits
For child support, federal and Virginia law both allow as much as 50% of your disposable wages to be garnished – 25% more than most other creditors. This limit is 60% if you aren’t supporting any spouse or child. And add another 5% (taking it to 55% or 65%) if your spousal support payments are more than 12 weeks overdue.
For student loans, the limitation goes the other way. The federal Department of Education can at best, garnish is 15% of your disposable earnings, never to exceed 30% of your disposable income.
For unpaid federal income taxes, the amount that can be garnished depends on the number of your dependents and the deduction rate.
Interestingly, by contrast to unpaid federal income taxes, Virginia law places no express limitation on the percentage or amount of earnings that can be garnished for failure to pay local, state, or federal taxes.
Multiple Garnishment Orders
Sometimes an employer receives multiple garnishment orders for the same debtor employee. In that case, the employer must determine which order has priority and the protocol for garnishing. Though these rules are complicated, generally speaking child support and spousal support take priority over ordinary consumer debts. In this case, the entire support garnishment must be attached first. If the maximum permitted for garnishment has not been reached, then the remainder can go to the other creditors. It is not, in other words, a pro rata situation.
When served with more than one consumer debt garnishment, the rule is first in time, first in right. The time is determined by the date the writ of attachment was served on the sheriff, who is charged with delivering the garnishment to the employer. The Garnishment Summons usually contains this date.
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