One of the main tools that the creditor can use to collect from you is a wage garnishment. If the creditor has received a judgment from a court that you own money, the creditor can file papers to have a portion of your paycheck garnished (taken or withheld) to pay off your debt. If this has been done, you will be given a copy of an Earnings Withholding Order (Form WG-002) . But the creditor will be limited in the amount he or she can take. Generally, about 25% of your take home pay will be withheld, but the creditor cannot take the part of your paycheck that you need to support yourself and your dependents. See the Employee Instructions (Form WG-003) you were given by your employer for more information.
If the creditor tries to garnish your wages, you have several options:
How to ask for a claim of exemption for wage garnishment
- Talk to a lawyer. A lawyer can help you decide what is best for you. Take the Earnings Withholding Order to the lawyer so he or she can tell exactly what is going on.
- Try to work out an agreement yourself with the creditor (the person you owe money to). The creditor or his or her lawyer will be listed on the Earnings Withholding Order. If you make an agreement, you may be able to have the withholding stop or changed to a lower amount you can agree on.
- Ask for a claim of exemption. A claim of exemption will protect more or maybe even all of your earnings. You can get an exemption if you need your earnings (wages) to support yourself or your family, but you cannot get an exemption if:
- You use some of your earnings for luxuries that aren’t really necessary for support; OR
- You owe money to a lawyer because of a court order in a family law case; OR
- You owe the debt for past due child support or spousal or partner support; Or
- You owe the debt to a former employee for wages.
A Claim of Exemption is a form a debtor files with the levying officer (the sheriff or marshal who issued the Earnings Withholding Order) explaining why the wages that the creditor wants the debtor's employer to garnish (take) should be exempt (excluded). There are laws and rules that say when exemptions are available. You can read about these in the Employee Instructions (Form WG-003).
To file a Claim of Exemption for a wage garnishment
As soon as possible after receiving a copy of the Earnings Withholding Order (Form WG-002) (the wage garnishment) from your employer:
- Fill out a Claim of Exemption (Form WG-006) and a Financial Statement (Form WG-007).
- Remember, it is your job to prove using the Financial Statement form that you need your earnings to support yourself or your family.
- On the Claim of Exemption form, you can make an offer to the creditor to have a specified amount withheld from your check each pay period. Put down the amount you agree to pay each pay day on item 3 of the form, and if the creditor agrees, he or she will not oppose your claim of exemption.
- Mail or deliver the original plus one copy of the Claim of Exemption and the Financial Statement to the levying officer in your case (the sheriff/marshal or process server who issued the Earnings Withholding Order). Keep 1 copy of both forms for yourself.
- Note: The employer must continue to comply completely with the wage garnishment and send the withheld wages to the levying officer. The levying officer will hold all the payments until the Claim of Exemption is decided, either by the creditor not opposing the Claim of Exemption or by a court order.
- If the creditor does NOT oppose your claim of exemption, after 10 days the levying officer will tell your employer to stop withholding your wages or withhold less. The part (or all) of your earnings you need to support yourself or your family will be paid to you or paid as you direct. And you will get back the earnings that the levying officer or your employer were holding when you asked for the exemption.
- If the creditor opposes your claim of exemption, you will receive a Notice of Opposition to Claim of Exemption (Form WG-009) and Notice of Hearing on Claim of Exemption (Form WG-010) that will set a court date for a judge to make a decision. Read Form WG-010 carefully. It will not only tell you the court date information, but will tell you if the creditor will go to court or not.
- You do not need to go to the court date if you are willing to have the court make the decision based on your Financial Statement and on the creditor’s Notice of Opposition. If you go to the hearing, take bills, paycheck stubs, canceled checks and other evidence and witnesses that will help you prove that you need your earnings to support yourself and your family.
- Read page 2 of the Employee Instructions (Form WG-003) for more information.
- At the hearing, the judge will make the final decision. If the judge agrees with your claim of exemption, you will get your money back and the judge will order your employer to stop withholding your earnings or withhold less money. If the judge agrees with the creditor, your employer must continue to withhold your earnings unless you appeal to a higher court. Appeals are complicated, so talk to a lawyer if you think you want to appeal.
- If you have a court hearing, do not file another Claim of Exemption about the same Earnings Withholding Order unless your finances have gotten worse in an important way.
- If the judge orders that the Earnings Withholding Order be changed or ended, the levying officer must sign the notice to your employer. The levying officer may give you permission to deliver it to your employer or it can be mailed.
Read the Employee Instructions (Form WG-003) for more detail or if you have more questions.
To oppose a Claim of Exemption for a wage garnishment
If the judgment creditor wants to oppose the Claim of Exemption, within 10 days of the mailing date shown on Item 1 of the Notice of Filing of Claim of Exemption (Form WG-008), the creditor must:
- Fill out a Notice of Opposition to Claim of Exemption (Form WG-009) and make 4 copies.
- Fill out a Notice of Hearing on Claim of Exemption (Form WG-010) and make 4 copies.
- Contact the court clerk about setting a court date. The creditor must file Form WG-010 with the court within 10 days of the date shown on Item 1 of the Notice of Filing of Claim of Exemption (Form WG-008).
- The date of the hearing must NOT be more than 30 days after the date the creditor files Form WG-010 with the court.
- Give the following documents to the levying officer (whose name and address are on the front of Notice of Filing of Claim of Exemption (Form WG-008):
- The original Notice of Opposition to Claim of Exemption (Form WG-009) with original signature, and
- A copy of the Notice of Hearing on Claim of Exemption (Form WG-010).
The levying officer must receive Form WG-009 within 10 days of the mailing date on Item 1 of Form WG-008 or the Earnings Withholding Order will be canceled or changed as requested by the debtor on the Claim of Exemption.
- File the original Notice of Hearing on Claim of Exemption (Form WG-010) with original signature with the court clerk. Make sure the Proof of Service on the back has been completed and the signature on that part is also the original.
- The court must receive this document within 10 days of the mailing date on Item 1 of Form WG-008.
- Before the court date, the levying officer will file the original Claim of Exemption and the original Notice of Opposition to Claim of Exemption with the court.
- Have someone 18 or older, NOT the creditor, serve a copy of the Notice of Opposition to Claim of Exemption (Form WG-009) and the Notice of Hearing on Claim of Exemption (Form WG-010) on the judgment debtor (or if the judgment debtor is represented by a lawyer, on that lawyer) at the address on item 2 on the Claim of Exemption. The debtor must be served at least 16 court days before the hearing if served in person. If the debtor is served by regular mail from a California address to a California address, the debtor must be served at least 16 court days and 5 calendar days before the hearing.
- Click to find out more about service, or read page 2 of the Notice of Filing of Claim of Exemption, Instructions to Judgment Creditor (Form WG-008).
- The creditor is not required to, but may choose to go to the court hearing and explain to the judge why the money the creditor is trying to collect is not exempt. If the creditor does not want to go to the court hearing, he or she can check box 3 on the Notice of Hearing on Claim of Exemption (Form WG-010).
- If going to the court hearing, the creditor should take each form he or she filled out and the Claim of Exemption.