Our lives have changed in a flash.  The Associated Press warns that Americans must brace for new life of no school and growing dread.  We now spend more time in line at Walmart buying toilet paper than we do lining up for Black Friday sales. Parents worry about their jobs while they wonder who’ll watch their children while they are at work since schools have extended spring break or shut down for weeks.

The world has changed.  We are told to practice “social distancing” and not come within so many feet of our fellow human beings. People are wearing medical masks and gloves when they go out. Some people walk around with Lysol bottles.

1. The wages garnished must have been $600.00 or more within the 90 days prior to filing bankruptcy as you can only recover garnished wages from the 90 days preceding filing bankruptcy; and
2. You can exempt the wages once they are returned to you.

If theses two elements are present, the next thing to do is to determine whether or not it is even worth trying to get your garnished wages back. This is because it requires an adversary proceeding to the filed within your bankruptcy case, which of course costs additional attorney fees. Depending on how much of your wages you can get back and exempt, it might not be worth getting them back if the attorney fees are equal to or greater than what you will be getting back.

This decision needs to be made before actually filing your bankruptcy as the garnished wages need to be listed on your schedules and then elected to be exempted. It is also very important to note that the garnished wages will not be returned right away. It will most likely take several months for you to receive your wages.

It also may be possible to recover your garnished wages by simply sending the creditor a demand letter. If the letter gets to an attorney who is familiar with bankruptcy law, then they should know that you are entitled to the funds being returned to you and, if not, an adversary proceeding will be filed. However, it is important to send such a letter as soon as possible as you can only file an adversary proceeding to recover your garnished wages while your bankruptcy is open. A Chapter 7 is only open for around 120 days.

If the garnished wages have simply only been taken out of your paycheck and never sent to your creditor, then they should still be being held by your employer. If that is the case, then your employer should simply return the funds to you once they receive notice that you have filed bankruptcy. However, you will only be able to keep the funds if you are able to exempt them.

If your wages are currently being garnished and you are thinking of filing bankruptcy in order to stop the wage garnishment, contact an experienced bankruptcy attorney today at the Law Office of David M. Goldman, PLLC by calling (904) 685-1200. Not only can a bankruptcy attorney help you file bankruptcy, they can also help you determine whether bankruptcy is right for you and whether or not you will be able to or if you should seek to have your garnished wages returned to you.

The good news is that bankruptcy will discharge the majority of civil judgments entered against you, but there are a few exceptions. It depends entirely on what the underlying debt was for and whether a lien has been placed on your real property. There are certain types of judgments that cannot be discharged with a bankruptcy.

The most common type of civil judgment is a judgment for unpaid debts, such as a credit card, medical bill, rent, repossession or personal loans, just to name a few. If your judgment is for a debt such as one of these, then it is most likely dischargeable through bankruptcy.

What is Wage Garnishment and how does it work?

Wage garnishment is a court order that compels your employer to deduct a certain amount of money from each paycheck you receive and send it directly to your creditor until your creditor is paid in full. Luckily there are limits set by law on the amount of money that can be garnished from each paycheck.

Florida requires your creditor to first obtain a judgment from a court before they can request a wage garnishment. Once a judgment order has been obtained, your creditor files a Motion for Continuing Writ of Garnishment with the Court. The Court then provides a Continuing Writ of Garnishment Against Salary or Wages, which is served on your employer. Your employer then has 20 days from receiving it to file a response with the Court. Your employer’s answer must state whether or not they are in fact your employer, as well as the frequency of your pay periods and the amount of your salary and wages. The writ then directs your employer of where to send the withheld money and how much shall be withheld. The only instances where your paycheck can be garnished without a judgment from the court is when it is for debt owed for income taxes, child support, or student loans.

1. Gives you a “Fresh Start.” This means you liability for your dischargeable will be eliminated.
2. Will stop Foreclosure proceedings or allow you time to catch up on past due payments.

Recent court findings state that a garnishment from a Florida court does not have jurisdiction to hear cases involving bank accounts that originated outside the state.

This creates a huge hurtle for collection agencies. For example, I came from Maine and have bank accounts that originated there. If someone attempted to garnish me in Florida they would have to obtain a judgment against me, then petition the Maine court to domesticate a foreign judgment, then would have to follow Maine laws to garnish my wages. This would require the creditor to hire a lawyer licensed in multiple states or to hire multiple lawyers.

Pros

First, if you want to keep the property, you must sign the reaffirmation agreement. Also, if you do sign, you will be certain what your payments will be, what your interest rate is, etc. Signing a reaffirmation agreement may also help rebuild your credit, since you are taking responsibility for a pre-filing debt and are making regular payments on a debt.

The automatic stay will remain in effect until one of the following things occurs:

1. A creditor petitions the court for relief from automatic stay and the court enters an order granting it;

Based on this definition, it would make sense that a husband and wife could both exempt their wages from garnishment as long as they were each providing more than 50% of the support for a child from a prior relationship.

Similarly, in a bankruptcy case, having a non-filing spouse can protect all titled marital property from liquidation by filing that property as, “Tenancy by the Entireties”. This trick is commonly used in the bankruptcy arena.