West Virginia Wage Garnishment Laws

It's not enough to have a monetary judgment, or court determination that someone else owes you money. If you are a creditor, you want to have some way to make sure you are paid; otherwise, that judgment is simply a piece of paper. Fortunately for creditors (and therefore, unfortunately for their debtors), there are court-ordered mechanisms by which a creditor can get his, her, or its money when the debtor does not pay. One of the best known of these mechanisms is garnishment, in which the court orders someone who has money owed or belonging to a debtor to turn that money over to the creditor instead. Any money belonging to a debtor, which is in the control or possession of a third party, could be garnished, though the best-known type of garnishment is wage garnishment. That's when the debtor's employer (known as a garnishee) is ordered to turn over part of the debtor's wages or salary to a creditor.

West Virginia Garnishment Exemptions and Non-Exemptions

Wages and salary may generally be garnished freely, at least up to a maximum amount (see next section). However, certain other types or sources of income are protected, or exempted, from garnishment. For example, federal law provides protects Social Security from most garnishment. It can't be garnished for most commercial, consumer, or lawsuit-created debts, but only for child support, alimony, and a certain few federal debts, such as income tax.

States can establish other exemptions to garnishment. West Virginia establishes fewer exemptions than most other states.

• Pensions or retirement benefits: public worker pensions, including teacher pensions, are protected from garnishment, but private pensions or retirement benefits are not—at least in the vast majority of legal actions. Private retirement benefits enjoy exemptions in bankruptcy proceedings, but not from garnishment more generally. This brings up an important point: bankruptcy law—and therefore bankruptcy exemptions—are a discrete body of law. It is very dangerous to assume that income or property which is exempt in a bankruptcy proceeding will be exempt from other legal process or in other types of actions.
• Public benefits or assistance: crime victim's compensation, general assistance, worker's compensation, aid to families with dependent children, and aid to the blind, aged, and disabled enjoy exemptions from garnishment. Other types of public aid or assistance (e.g unemployment compensation) may be exempt in bankruptcy but not otherwise.
• Insurance or annuities: fraternal society benefits and group life insurance proceeds are exempt from garnishment. Other types of insurance (such as life insurance) may have exemptions in bankruptcy but not generally.

West Virginia Maximum Threshold

Even non-exempt sources of income, like wages or salary, cannot be garnished entirely. Instead, they can only be garnished up to a certain amount (to leave the debtor something on which to live). In compensation for having few income exemptions than most states, West Virginia allows less income generally to be garnished than is allowed under federal law or most other places:

• Up to 20% of disposable income (for all garnishments in place or being sought, not per garnishment); or
• The amount by which a debtor's weekly income exceeds 30 times the minimum wage

(Federal law allows up to 25% of disposable income to be garnished.)

Note that "disposable income" is income remaining after deductions mandated by law--primarily FICA. It does not mean what is usually does, which is income after accounting for all necessary expenses, such as housing, food, transportation, and utilities. As a result, most of a person's income will be disposable income for garnishment purposes.

Also, certain debts, such as child support, may allow for greater-than-20-percent garnishment.

West Virginia Statute of Limitations

Creditors do not have forever to sue, or to bring actions to enforce judgments (such as by garnishment) that they have already received or obtained. Instead, there is a specific amount of time to go to court, called a "statute of limitations," the exact time depending on the type of legal action:

• Oral/verbal contract or open account (e.g. credit card): 5 years
• Written contract: 5 years
• Judgments: 10

The statute of limitations for judgments is how long a creditor has to seek garnishment or some other judicial remedy that will make sure it gets paid when the debtor is not paying voluntarily.

Writ of Garnishment in West Virginia

Obtaining a writ or order of garnishment in West Virginia requires going to court—it is a court-ordered remedy. However, it does not require a full trial; after all, the creditor has already gone to court, sued the debtor, and won, obtaining the judgment in its favor that garnishment enforces.

Garnishment is straightforward. The debtor shows the court that it has an unpaid judgment; states that it believes garnishment is necessary in order that the judgment will be paid; and also identifies at least one garnishee (such as the debtor's employee) which has money of the debtor (such as the debtor's wages or salary) which can be used to satisfy the judgment and pay the debt.

Assuming that the creditor's information is correct (e.g. that the garnishee has money belonging or owed to the debtor) and the debtor does not mount some successful challenge to garnishment (see below), the garnishee will ordered to divert some of the money owed to the debtor to the creditor instead. More on Stopping Wage Garnishment in West Virginia.

Getting Legal Help

The debtor should not, by the time the creditor is seeking garnishment, but able to challenge or dispute the fact that it owes money; that should have been determined by the earlier litigation, when the creditor won the judgment in its favor.

However, that does not mean that the debtor can't challenge the garnishment. Errors or mistakes in the garnishment proceeding (or for that matter, certain procedural errors in the underlying judgment that is being enforced) will provide grounds to dispute the garnishment. Because these challenges are primarily procedural, such as to—

• The statue of limitations
• The information in the garnishment
• How notice was provided to the parties
• The court's jurisdiction (or authority) over the debtor

—the assistance of a lawyer in bringing them is invaluable.

For more information:

West Virginia Statutes[http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=09&art=5#05]
FAQ sheet about Federal garnishment rules[http://www.dol.gov/whd/regs/compliance/whdfs30.pdf]
Social security and garnishment[http://www.ssa.gov/deposit/DDFAQ898.htm]