How to Stop a Garnishment in Virginia

If you owe someone money, that person might garnish your wages in order to collect payment. When your wages are garnished, your employer withholds a portion of your disposable income and sends it either to the court or to the creditor. In Virginia, it is very difficult to stop a garnishment. At best, you can try to exempt certain income. If all else fails, then you might seek bankruptcy protection.

Part 1

Part 1 of 3:

Preparing to Respond to the Garnishment

1
Understand who can garnish your wages. To garnish your wages, creditors must first get a judgment from the court. Virginia law allows some people to garnish your wages without a judgment first. Your wages can be garnished without a judgment for the following debts:^{[1]XResearch source}
- unpaid income taxes
- court-ordered child support
- owed child support (“arrears”)
- defaulted student loans
2
Identify exemptions. Not all of your income can be garnished. When you receive the Summons in Garnishment or Notice of Lien, then you should fill out the attached “Request for Hearing—Garnishment/Lien Exemption Claim” form.^{[2]XResearch source} Common income streams exempted from garnishment include:
- Social Security and Supplemental Security Income (SSI) benefits
- Veterans benefits
- benefits from group life insurance policies
- public assistance payments
- child support payments
3
Calculate the maximum that you will owe. Federal and state law exempt certain amounts of disposable income from garnishment as well. In Virginia, the maximum amount that can be garnished is either 25% of your disposable income or the amount in excess of $290 (which is 40 times the prevailing federal minimum wage of $7.25 an hour).^{[3]XResearch source} You will owe the lesser amount of the two.
- As an example, calculate how much you would owe under either formula. If you bring home $600 a week, then 25% is $150. Your weekly income ($600) less 40 times the minimum wage ($290) is $310. You will pay the lesser amount: $150.
- If your wages are garnished for child support or defaulted student loans, then different limits apply. Generally, up to 60% of your disposable income can be garnished for child support. If you support a spouse or another child, then up to 50% may be garnished. For any child support payments in arrears for over 12 weeks, an additional 5% may be garnished.^{[4]XResearch source} For student loans in default, then 15% of your disposable income can be garnished (but no more than 30 times the minimum wage).
4
Talk to an attorney. If you have questions about whether you can claim an exemption, then you should try to meet with a lawyer. A lawyer would be invaluable for helping you determine how best to proceed. Although it is difficult to “stop” a garnishment completely, you can try to exempt certain income from garnishment. Only a qualified attorney can analyze your situation and provide tailored advice.
- To find a lawyer, you can visit your state’s bar association, which runs a referral program.^{[5]XResearch source}
- Costs may be a concern. However, you can try to find a non-profit legal aid association near you. Visit the website for the Legal Service Corporation’s website at www.lsc.gov. You can then search for legal aid organizations on the LSC homepage.
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Part 2

Part 2 of 3:

Filing for Exemptions

1
Get the form. The “Request for Hearing—Garnishment/Lien Exemption Claim” form should be mailed to you with the Summons in Garnishment or Notice of Lien. If not, ask your court clerk for the form.
- To see a copy of the form, visit the Virginia state court’s website at http://www.courts.state.va.us/forms/district/dc454.pdf.
2
Complete an affidavit, if necessary. If you are claiming exemptions for dependent children, then you will need to fill out an “Affidavit Concerning Dependent Children and Income,” Form DC-449. You can get a copy from the clerk’s office or download it at http://www.courts.state.va.us/forms/district/dc449.pdf.
- To help you complete the affidavit, you will need information about your gross monthly income and any child support or income earned by the child.^{[6]XResearch source}
- You can also download the instructions at http://www.courts.state.va.us/forms/district/dc449inst.pdf.
3
File the form. You can either file in person or mail the Claim form to the court clerk.^{[7]XResearch source} You might want to call the court ahead of time to ask if the court has a preferred method.
- If you want a hearing, then you can request a hearing on the form.^{[8]XResearch source}
4
Attend a hearing. You have the right to a hearing seven business days after you file your claim of exemption. You should bring any documents necessary to help establish why certain property/income is exempt.
- Dress appropriately. You need to wear shirts and shoes to court. Also avoid wearing shorts, hats, or flip-flops. Ideally, you should dress as if you are attending a job interview or going to a religious service.
- Don’t take food or drink into the courthouse. Instead, consume all beverages and food outside. Also, leave cell phones and pagers in your car.
- When addressing the judge, always say, “Your Honor” and stop talking if the judge has a question. Listen politely and then try to answer the question asked. If you do not know the answer, be honest and say, “I don’t know.”
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Part 3

Part 3 of 3:

Filing for Bankruptcy

1
Understand the automatic stay. As soon as you file for bankruptcy, an “automatic stay” is issued to all creditors. This stay halts any collection efforts taken or about to be taken by creditors. Accordingly, the automatic stay can stop most garnishments.^{[9]XResearch source}
- The stay does not apply to child support obligations, so those continue regardless if you file for bankruptcy.
- The stay ends when your bankruptcy ends. However, if you managed to discharge the underlying debt in bankruptcy, then your creditor cannot start another garnishment for that debt. If you didn’t get the debt discharged, then the creditor can pursue another garnishment.^{[10]XResearch source}
2
Hire a bankruptcy lawyer. Bankruptcy rules are complicated. You should definitely hire an attorney to file the bankruptcy for you. Many bankruptcy attorneys will represent clients in a simple Chapter 7 liquidation for a fixed fee.
- To find a bankruptcy attorney, you can use your state bar’s referral service. Be sure to ask about flat fees during a consultation. If you consult with an attorney referred by the Virginia Lawyer Referral Service, then your consultation will cost $35. ^{[11]XResearch source}
- You shouldn’t wait to meet with a bankruptcy attorney. On your Summons in Garnishment, you should locate the “return date” in the upper right-hand corner. This is the date the garnishment will end. If you can file for bankruptcy before the return date, then you can get back all of the money that has been garnished up to that point. If you can’t file before that deadline, then your lawyer can advise you of other options.^{[12]XResearch source}
3
Follow your attorney’s advice. Newly-acquired debts sometimes cannot be discharged. For example, luxury purchases or cash advances can be considered fraudulent if taken too close in time to the bankruptcy filing date. Fraudulent transactions will not be discharged in bankruptcy.^{[13]XResearch source}
- Luxury goods totaling more than $650 cannot be made with a credit card within 90 days of filing. Cash advances totaling more than $925 cannot be taken within 90 days of filing.^{[14]XResearch source}
- Although you can argue that these purchases are legitimate, it is best to avoid making any questionable transactions in the months leading up to a bankruptcy filing. Ask your attorney’s advice about what you can purchase and when.
Your attorney will file your bankruptcy application in federal court. You will have to provide your lawyer with a list of creditors so that they can all be notified of the automatic stay.^{[15]XResearch source} Be sure to include the name and address of any creditor who has garnished your wages.
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If your wages are garnished for unpaid taxes, then you should consult with an attorney. The garnishment methods, as well as the amount that can be withheld, will differ depending on your circumstances.^{[16]XResearch source}
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