In Kansas wage garnishment, a creditor obtains an order requiring part of a debtor’s income, such as wages or salary, to be sent to the creditor to satisfy a court-determined debt or obligation. Before getting the garnishment order (often called a writ), the creditor needs to first establish its legal right to the money by suing the debtor, winning, and obtaining a monetary (or money) judgment from a court. (Exception: a tax authority, like the IRS, doesn’t need to go to court to establish a legal right to payment.
Garnishment is available to satisfy any judgment, including judgments on debts resulting from negligence or intentional misconduct, breach of contract, promissory notes, sale of goods, credit cards, alimony, child support, and taxes.
Social Security is always mostly (though not completely) exempt from garnishment. Federal law only allows Social Security to be garnished for child support, alimony, and a few federal obligations, like taxes.
In addition, in Kansas, several types of non-wage, non-salary income are protected, or exempt, from garnishment:
Note that some of the exemptions mentioned above do not offer complete protection. Some otherwise-protected types of income may be garnished for child support, maintenance orders, or taxes, even though they are protected from other creditors.
Like many other states, Kansas has decided to defer to federal law in determining the maximum amount garnished, rather than setting out its own maximum. Even wage or salary income therefore has at least partial protection from garnishment, since they cannot be garnished in their entirety. In Kansas, the lesser of the following may be garnished:
In common or everyday usage, “disposable income” is income left over after all necessary expenses, such as food and housing. However, garnishment law defines it more strictly: disposable income is income left after legally required paycheck deductions, chief of which is FICA. No other deductions or expenses, no matter how common or important, are considered. This means most income will be considered “disposable income” for garnishment purposes.
Also, it’s important to be aware that certain debts, such as tax obligations and child support, allow much more of a debtor’s income to be garnished0—potentially, as much a s 50% - 60%.
There are two different statutes of limitation (time periods to act) that come into play for garnishment. The first is the statute of limitations for the debt that the garnishment is based on. It differs by the cause of action. In Kansas, the most common consumer debt limitation periods are:
This statute of limitations on the underlying cause of action is important because if it is too late to sue the debtor, it is too late to garnish his or her income.
If the creditor successfully sued received a favorable monetary judgment, the creditor has at least 5 more years in which to seek garnishment. (“At least” because it appears that the time frame can be renewed by on-top-of-things creditors).
Garnishment is merely an action to enforce an already-granted judgment. The underlying debt—the reason the debtor owes money—is not revisited or relitigated. As a result, the debtor’s own role in garnishment is usually minimal.
The creditor takes the judgment back to court and applies in writing for garnishment. The core of this application is for the creditor states that money is due it; garnishment is necessary for the creditor to be paid; and the debtor’s employer (“garnishee”) has money available which is owed to the debtor (debtor’s salary or wages) and which can be used to pay the debt and satisfy the judgment.
The court will then require the garnishee to verify that it has money belonging or owed to the debtor. If there are any factual inaccuracies, the garnishee can challenge them—for example, does it pay the debtor less than creditor believes? or not employ the debtor at all? However, those are essentially the only challenges it can raise—the garnishee cannot challenge creditor’s to garnishment to satisfy a valid judgment. More on Stopping Wage Garnishment in Kansas.
Despite the fact that (in theory) the debt has already been fully litigated and well-established, there are ways to dispute garnishment. One such possibility is by attacking the validity of the underlying judgment on which the garnishment is based. This is most likely to work if the judgment was rendered incorrectly—for example, by “default” when the only reason the debtor defaulted was that he or she was never properly contacted about the lawsuit or claim. Another possibility might be to attack the underlying debt as too old, having been rendered in violation of the statute of limitations.
Another option for the debtor is to show that the calculation of his or her disposable income is incorrect (too high), and that therefore, the amount of the garnishment has to be reduced. For example, if it can be shown that significant portions of the debtor’s income come from exempt sources, it should be possible to reduce the disposable income available for garnishment.
Since most challenges to garnishment are based on some aspect of legal procedure, debtors looking to fight garnishment should retain attorneys to help them.