Garnishments: Frequently Asked Questions
All property, money, or effects of the debtor defendant in the possession or control of the garnishee at the time of service of the summons of garnishment upon the garnishee, or coming into the possession or control of the garnishee at any time from the date of service of the summons of garnishment upon the garnishee up to the date of the garnishee’s answer, shall be subject to the process of garnishment. A check is an asset subject to garnishment. The crucial fact is whether debtor defendant could recover the property in a direct suit against the garnishee. The most common garnishment actions are for wages and bank accounts. In wage garnishment actions, the debtor defendant’s employer/garnishee can withhold up to 25% (50% in child support garnishments) of the debtor defendant’s “disposable income” (earnings less legally-required deductions). However, the law exempts certain kinds of income from garnishment. You should consult the law or an attorney if you are not sure whether the property at issue is subject to garnishment. Information on what kinds of funds are exempt can be found at http://law.ga.gov/garnishment-exemption.
There are four (4) different kinds of garnishment actions, and the plaintiff must select the correct Garnishment Affidavit to file depending on the circumstances. Pursuant to O.C.G.A. § 18-4-7(d), failure to file the correct/applicable garnishment affidavit and summons shall cause the garnishment to be invalid and the garnishee shall be released of all liability. The Plaintiff’s garnishment action is subject to dismissal if the incorrect garnishment affidavit is filed. The four (4) types of garnishments, generally, are:
1) Affidavit of Continuing Garnishment for Wages
Continuing Garnishments are filed against a person’s place of employment and last for approximately seven months, or until the garnishment is satisfied, whichever comes first. Twenty-five percent (25%) of the debtor defendant’s “take-home” pay will be attached each month. If the debt is not paid within the seven months, a new garnishment must be filed to collect the remaining balance. A continuing (wage) garnishment is good for 179 days from the date of service by the Sheriff’s Department.
2) Affidavit of Garnishment (General/Bank)
These are “one shot” garnishments. In this garnishment action the judgment creditor seeks all property, money, or effects of the debtor defendant in the possession or control of the garnishee on the day of service and for the twenty-nine (29) days following service on the garnishee. Regular Garnishments are typically filed against a bank, credit union, brokerage firm, employer, or business which owes the debtor defendant money. The filing will capture the amount you file for or whatever might be in the account of the debtor defendant or owed to the debtor defendant by that garnishee at that time. In the case of commissions, it will capture 100% of commissions for one month, or whatever amount your file for if it is less than the commissions. If the debtor defendant is self-employed, a regular garnishment will seize all sums up the amount of the garnishment that the garnishee owes the self-employed debtor defendant at that time.
3) Affidavit of Continuing Garnishment for Support
Support Garnishments are used to capture the periodic support for a family member – Alimony in the case of the awarded spouse, and Child Support in the case of children. The debtor defendant must be behind at least one month’s court ordered support before a garnishment for support may be filed. Fifty percent (50%) of the debtor defendant’s “take-home” pay will be attached. A Support Garnishment has no termination date; it lasts until a zero balance is reached, indicating that the debtor defendant has become current on payments. These cannot be used to collect current support obligations. Garnishments for support remain for so long as the debtor defendant is employed by the garnishee and they expire once the original arrearage (as stated in the affidavit) is satisfied.
4) Tax Revenue Garnishments
Tax Revenue Garnishments are filed by the Georgia Department of Revenue for unpaid State Income Taxes and are not available to the public.
After determining the correct Garnishment Affidavit to file (depending on the circumstances), you will need the following forms to file with the Court:
A copy of the judgment must accompany the garnishment upon filing if the judgment was obtained from a court other than DeKalb County Magistrate, DeKalb County State, or DeKalb County Superior Court.
You also need:
Continuing (Wage) Garnishment:
– Affidavit and Summons of Continuing Garnishment
– Answer of Continuing Garnishment
– Sheriff’s Entry of Service form for the garnishee
– Sheriff’s Entry of Service form for the defendant
Regular (Bank) Garnishment:
– Affidavit and Summons of Garnishment
– Answer of Garnishment
– Sheriff’s Entry of Service form for the garnishee
– Sheriff’s Entry of Service form for the defendant
Failure to include sufficient copies may result in your case being returned. The Court will retain all originals and serve the garnishee with the service copy. You will need to make a copy of all forms to serve on the debtor defendant as required in O.C.G.A. § 18-4-8(b). Please visit our website or speak with a Deputy Clerk to obtain the necessary forms.
The person filing the garnishment action (the plaintiff) must have the garnishee served personally or pursuant to a legally authorized service substitute (usually requiring permission from the Court) with a copy of: (1) the Affidavit of Garnishment; (2) the Summons of Garnishment; and (3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant’s Claim Form. See O.C.G.A. § 18-4-8(a) and § 9-11-4. Not later than three (3) days after service of the garnishment on the garnishee, the plaintiff must also serve the debtor defendant with: (1) the Affidavit of Garnishment; (2) the Summons of Garnishment; and (3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant’s Claim Form.
Service on the debtor defendant may only be made through the following methods: a) By regular mail to the debtor defendant at the debtor defendant’s last known address and by registered or certified or statutory overnight delivery, return receipt requested. See O.C.G.A. § 18-4-8(b)(1)(A); or b) Personal service by the marshal or other approved special process service.
If the plaintiff can establish by affidavit that the debtor defendant resides outside of Georgia, has departed this state, cannot, after due diligence, be found within this state, or has concealed his or her place of residence from the plaintiff, the plaintiff may be permitted to serve the debtor defendant by regular mail at the address at which the debtor defendant was served as shown on the return of service in the action resulting in the judgment. A certificate of such mailing shall be filed with the clerk of the court in which the garnishment is pending by the person mailing such notice. If the plaintiff fails to serve the debtor defendant within this statutory time period, the garnishment is subject to dismissal. Specifically, O.C.G.A. § 18-4-8, regarding service and required notice, provides:
The methods of notification specified are cumulative and may be used in any sequence or combination. When it appears that a plaintiff has reasonably, diligently, and in good faith attempted to use one method, another method thereafter may be utilized; for the time during which the attempt was being made, the time limit shall be tolled for the subsequent method.
No money or other property paid or delivered to the Court by the garnishee shall be distributed nor shall any judgment be rendered against the garnishee until: Ten (10) days have elapsed from the date of compliance with at least one method of notification; and If a garnishee answer was filed: Twenty (20) days have elapsed from the filing of the garnishee’s answer without a claim having been filed by any debtor defendant or third party and without a traverse having been filed by the plaintiff; or all traverses filed prior to the twenty-first (21st) day from the filing of the garnishee’s answer have been adjudicated and all claims have been adjudicated.
A garnishment proceeding is an action between the plaintiff and garnishee; provided, however, that at any time before a judgment is entered or before money or other property subject to garnishment is distributed, the debtor defendant may become a party to the garnishment by filing a claim with the Clerk of Court and may use the form set forth in O.C.G.A. § 18-4-82. A debtor defendant’s claim must assert the basis upon which he or she claims that his or her money or other property is exempt from garnishment. A debtor defendant may not attack the validity of the underlying judgment in a garnishment action. For example, a debtor defendant may not argue that the judgment upon which the garnishment is based should not have issued or was issued in error. Attacks on the underlying judgment must be made in the appropriate Court (this is usually the Court that issued the judgment or the corresponding appellate Court). In addition, financial hardship is not a legal defense to garnishment. However, there is nothing to prevent the debtor defendant from contacting the plaintiff to try and work out a payment plan or otherwise satisfy the judgment using another method of collection or payment. The law provides that certain kinds of funds and other property may be exempt from garnishment for a variety of reasons, including, but not limited to, the limitations on garnishment as provided in O.C.G.A. § 18-4-5 and § 18-4-53. There are also exemptions as provided in O.C.G.A. § 18-4-6. These include, but are not limited to, the plaintiff not having a judgment against the debtor defendant, the amount claimed due by the plaintiff being erroneous, such money or other property being subject to a claim held by a third party that is superior to the judgment described in the affidavit of garnishment, or other legal or statutory defenses. Even when earnings are held at a financial institution, all or portions of that money may be exempt from garnishment due to the limitations on garnishment as provided in O.C.G.A. § 18-4-5 and § 18-4-53, exemptions as provided in O.C.G.A. § 18-4-6, or other reasons. If the debtor defendant files a claim, he or she is required to serve a copy of the claim upon the plaintiff and garnishee. Upon the filing of the debtor defendant’s claim, the Court will schedule a hearing to be held not more than ten (10) days from the date the claim is filed. Debtor Defendant has the burden of establishing that the exemption claimed applies (usually this means bringing in proof of the origin of the funds and other evidence to establish from where the funds came).
The Clerks and Judges of DeKalb County Magistrate Court are prohibited from providing any legal advice on how to file your case or what you should file. However, we are happy to share general information about the garnishment process (each case and circumstance may have legal exceptions and/or exemptions). As a garnishment case can be complex and often frustrating for all parties, we also recommend consulting a licensed attorney with any specific questions. For information on exempt funds, please go to http://law.ga.gov/garnishment-exemption.