Delaware Wage Garnishment | DE Exemptions | Maximum Threshold | Writ of Garnishment

Unlike many other states, Delaware only offers very limited protection from wage garnishment, which is when creditors get a court order requiring part of a debtor’s wages or salary sent to the creditor, to satisfy some debt. (Note: any property or money belonging to or owed to debtor that is in the hands of a third party can be garnished; however, wage garnishment is one of the most common types of garnishment.)

Delaware Garnishment Exemptions and Non-Exemptions

States have the right to establish their own exemptions to garnishment, carving out types (or amounts) of income which cannot be garnished for the benefit of creditors. Delaware has chosen to exempt fewer types of income from garnishment than most states:

Social security, which can only be garnished for child support, alimony, federal taxes, and certain other debts to the federal government—this is a federal rule, which also binds Delaware.
State, county, and municipal pensions—note that private pensions are not protected. Also, note that state, county, and municipal pensions are exempt from garnishment by most creditors, but not from order from family court (e.g. for child support or alimony)
Some forms of public benefits or assistance, such as workers’ compensation, unemployment benefits, aid to families with dependent children, and aid to the blind, aged, and disabled. Some of these forms of aid, such as worker’s compensation, may also be garnished for child support.
Some insurance benefits, such as annuities up to $350 per month; health or disability benefits; life and group life insurance benefits

Remember: apart from the limited exceptions specified above, any income (including pensions from private companies) can be garnished.

In addition, under Delaware law, for many of these income categories, exemptions are only up to certain limits. Someone whose income is largely dependent on one or more of these streams and who is faced with garnishment should consult with an attorney to see how much is protected.

Delaware Maximum Threshold

As compensation for being stingier with the number of different sources of income exempt from garnishment, Delaware generally makes less of a debtor’s income available for garnishment. In Delaware, only a maximum of 15% of a debtor’s disposable income may be garnished (which is the same thing as saying that 85% of disposable income is protected or exempt from garnishment).

What is disposable income, though? To most people, “disposable income” is income left over after necessary expenses, which includes food, housing, utilities, etc. Unfortunately, the law defines it much more strictly for garnishment purposes: disposable income is anything and everything left after legally required deductions from a person’s paycheck. There are not many legally required deductions—FICA is the most significant for most people. Even deductions required by work (such as for the employee portion of health insurance) are not “legally required” for purposes of determining garnishment disposable income. This means that most of a person’s income is “disposable income”; for people comfortably over the poverty line, that typically means that 15% of approximately 90% of their income could be garnished.

That’s not 15% of income for each garnishment, by the way. It’s a total of 15% of disposable income that may be subject to garnishment, no matter how many creditors there are.

Delaware Statute of Limitations

There are two different statutes of limitation relevant to garnishment. That’s because, with a very few limited exceptions (e.g. the IRS garnishing for unpaid taxes), the creditor needs to first sue the debtor and win, obtaining a judgment that confirms creditors right to be paid. Then the creditor files for garnishment.

Therefore, the first statute of limitations is the one for the debt on which garnishment is based. That statute varies with the type action or debt, though the statutes for the most common consumer debts will be four years (most revolving charge accounts or cards; sales of goods) or even only three years (most contracts). Since it it’s too late to sue, it’s also too late to garnish, Delaware’s shorter limitations periods work to a debtor’s advantage.

However, once a creditor has obtained a judgment, state law allows the creditor to enforce it indefinitely—that is, there is no statute of limitations for enforcing a judgment, such as by garnishment. A creditor may do it any time.

Writ of Garnishment in Delaware

Remember, as described above, garnishment is a two-step process: sue and obtain a judgment; then garnish. This means that before the creditor gets to garnishment, the debtor has already had an opportunity to defend him- or herself. This in turn means that the debtor’s involvement in garnishment is minimal.

The process of garnishment starts with a creditor, armed with a judgment, applying in writing to the court for garnishment. In this application, the creditor states that it has a judgment for money and that garnishment is believed necessary to satisfy this judgment. The creditor will also allege that the debtor’s employer or some other party (the “garnishee”) is believed to have money available and owed to the debtor (such as debtor’s salary or wages), which can be used to satisfy the debt.

After this, the court will serve paperwork on the garnishee. The garnishee can try to challenge some of the “facts” surrounding the garnishment, such as whether and how much it owes the debtor (and therefore how much it might be required to turn over for the creditor). However, the garnishee cannot challenge the basic right of a creditor to garnishment, and if the garnishee does not comply, the garnishee may become liable for the monies owed to creditor. More on Stopping Wage Garnishment in Delaware.

Getting Legal Help

It can be difficult to challenge garnishment, since by the time a creditor has gotten around to garnishing the debtor’s wages, the creditor has, as noted, already won in court. This greatly limits, if not eliminates, the debtor’s ability to challenge the debt on its merits. It may, however, be possible to challenge it on procedural grounds, by showing that the creditor should never have received a judgment because the debt was too old (the statute of limitations had passed) or the debtor had never received proper notice it was being sued.

If those approaches are unavailing, then the debtor’s best strategy may be to show that as much of its income as possible is exempt from garnishment, which will reduce how much could be taken—however, this is more difficult in Delaware than in other states, since fewer types of income are exempted from garnishment. The debtor may also be able to show that other obligations, such as garnishment for child support or taxes (assuming it is a private creditor looking to recover from the debtor) have resulted in debtor already being garnished for the maximum amount, so there is no more to give.

Since these challenges involve procedural rules and classification of income, a lawyer’s assistance can be invaluable, and can often represent the margin or difference between success and failure.

Remember: while the small maximum amount of disposable income that can be garnished is good for debtors, almost everything else in Delaware is good for creditors. Debtors have less protection than in many other states.

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