The Citation to Discover Assets: How Creditors Learn Where You Work And Garnish Your Wages
Richard Fonfrias, J.D.
Chicago's Financial Rescue & Bankruptcy Lawyer
Fonfrias Law Group, LLC
Garnishing Your Wages
When a creditor gets a judgment against you, the creditor can use a citation to discover assets to locate your property and learn where you work. At that time, it can move forward with a wage deduction proceeding, often called garnishing your wages. This is where the creditor tries to get your employer to deduct money from your paycheck and send it directly to the creditor.
The Wage Deduction Process
The creditor files a "Wage Deduction Affidavit" with the court clerk. In this affidavit, the creditor states that he believes your employer owes you wages. Also, the creditor must certify that he sent you a "Wage Deduction Notice" before filing the affidavit, with your last known address appearing in the affidavit.
In addition, the creditor has to file with the court clerk and send to your employer written questions called interrogatories. These questions help the creditor learn how much money you earn in a specific pay period, and calculate the amount of non-exempt wages he can deduct. Your employer must answer these questions, file them with the court, and send a copy of the answers to your creditor and you.
Then the court clerk issues a summons that is served on your employer. It tells your employer when to file answers to the interrogatories and the date for the court hearing. From then on, your employer must withhold the amount of non-exempt wages you've earned or that may come due up to the judgment amount. Then, at the next hearing, the court will decide whether the money held by your employer should be given to your creditor.
The Wage Deduction Notice
The Wage Deduction Notice that's sent to you must be in a specific format required by law. The notice must tell you that a creditor has started a court action to have your employer withhold your wages -- and the date and time your case will be heard in court. It must also explain the formula used to determine the amount of wages withheld and the amount of wages that are protected. In addition, the notice must explain how you can request a hearing to dispute the wage deduction.
How Much Money Can Your Employer Withhold?
Your employer can withhold only part of your wages, after deductions for taxes and Social Security. He must pay you 45 times the state or federal minimum wage, whichever is greater. At $8.00 per hour, the state minimum wage is higher than the federal minimum wage. As a result, you can take home at least $360 per week in wages. No wages can be deducted if you take home less than $360 per week. And if you take home more than $360 per week, your employer can deduct whichever of the following amounts is less:
(1) 15% of your weekly gross wages, or
(2) the amount of your weekly take-home pay above $360.00.
Also, your employer may withhold a small fee for the company's time in deducting money from your wages.
Is Your Employer withholding The Correct Amount From Your Wages?
First, calculate how much money your employer takes from your paycheck. See if your employer is taking more money than the law allows. If he is, then ask your employer to deduct only the correct amount.
When your employer answers the interrogatories (legal questions answered under oath), review his answers and see the amount of non-exempt wages he claims to have deducted. If he continues to take too much money from your wages, then ask for a hearing so the court can decide the correct amount of your exempt and non-exempt wages. The Wage Deduction Notice explains how to request a hearing.
The law does not allow your employer to fire or suspend you because he is deducting money from your wages to pay a single debt. However, if you have two or more creditors garnishing your wages through your employer, then your employer may fire or suspend you because the law no longer protects you.