One of the methods by which a creditor in New York can enforce a judgment is by means of an income execution, more commonly known as a wage garnishment. The creditor must first obtain a judgment against the debtor in order to be able to utilize an income execution.
Service of an Income Execution in New York
The income execution is usually prepared by the judgment creditor’s attorney, who then delivers it to the Sheriff of the county in which the judgment debtor resides. The Sheriff then serves the income execution on the judgment debtor. Service of the income execution may be made in the same manner as service of a summons, or by certified mail. If served by certified mail, an additional copy must be sent to the debtor by regular mail.
Once served with the income execution, a judgment debtor has twenty days in which to comply voluntarily and start making payments to the Sheriff. If the debtor fails to do so, the Sheriff must then serve the income execution on the debtor’s employer. If the debtor’s employer is located in a different county from the debtor’s residence, the income execution will be returned to the creditor’s attorney. It must then be delivered to the Sheriff of the county in which the employer is located. The Sheriff in that county then serves the income execution on the employer.
If the debtor does not reside in New York State but is employed in the state, the income execution is delivered directly to the Sheriff of the county where the debtor is employed.
A debtor’s earnings can be subject to only one income execution at a time, with priority given to the judgment creditor that first delivers its income execution to the Sheriff. The exception to this is that a debtor’s earnings may also at the same time be subject to an income execution for support enforcement, subject to the deduction limitations detailed below. If there is a conflict between an ordinary income execution and an execution for support enforcement, the execution for support will have priority.
How much can be deducted from an employee’s income pursuant to a wage garnishment in New York?
The maximum that can be deducted from an employee’s earnings is 10% of the employee’s gross income. “Earnings” means compensation for personal services, whether considered to be wages, salary, commission or bonus. Only earnings for services rendered within the sixty days prior to delivery of the income execution to the Sheriff are subject to the 10% limitation. If, for instance, the judgment debtor is due a bonus for services performed prior to the sixty-day period, then it is possible for the full amount to be levied upon, without regard to the 10% limitation.
The 10% maximum is subject to certain limitations, as follows:
- The amount deducted cannot reduce the judgment debtor’s weekly disposable earnings below the amount arrived at using the above formula. That is, the amount withheld from the debtor’s pay cannot cause the debtor’s weekly disposable income to go below $270.00 per week.
- The amount deducted cannot exceed 25% of the judgment debtor’s weekly disposable earnings.
- If deductions are being made from a judgment debtor’s earnings for child support or spousal maintenance, and those deductions equal or exceed 25% of the debtor’s disposable earnings, then no further deduction can be made from the debtor’s pay.
- If deductions are being made from a judgment debtor’s earnings for child support or spousal maintenance, and those deductions are less than 25% of the debtor’s disposable earnings, then further deductions can be made from the debtor’s pay. However, the total amount deducted cannot exceed 25% of the judgment debtor’s disposable earnings.
It is important to note that up to 60% of a debtor’s disposable earnings can be withheld pursuant to an income execution for child support or spousal maintenance (65% if there are arrears that accrued over 12 weeks prior to the week for which earnings are payable).
What are my options if I or my employer is served with an income execution (wage garnishment)?
- Seek to vacate the judgment, if there are grounds to do so. Read more about vacating judgments.
- Ask the court to modify the income execution pursuant to CPLR Sec. 5231. The debtor would have to show that the amount being deducted from their pay was burdensome for the debtor or the debtor’s family. This procedure is not used very often.
- File for bankruptcy. A Chapter 7 or Chapter 13 bankruptcy filing will stay enforcement of any judgments. Upon the filing of a bankruptcy petition, the wage garnishment must cease. (Income executions for support enforcement, however, will continue). Once the debtor receives a discharge in bankruptcy, the judgment may not be enforced against the debtor, unless the judgment is for a debt that is non-dischargeable. In addition, if more than $600 was deducted from the debtor’s pay within the 90 days preceding the bankruptcy filing, this money may be recovered by the debtor under certain circumstances.
Andrew M. Doktofsky, P.C. | Long Island Attorney for Income Executions/Wage Garnishments
If your pay is currently subject to a wage garnishment, or you have recently been served with an income execution, you may have options available to you. Long Island bankruptcy lawyer Andrew M. Doktofsky can advise you on how bankruptcy can stop wage garnishments, and provide you with relief from your debts. Andrew M. Doktofsky assists people throughout Long Island, including Nassau and Suffolk Counties. Call 631-812-7020 to schedule a free consultation.