Can my spouse be held responsible to a student loan taken BEFORE we got marreid? Can may spouse's income could be garnished for my unpaid student loand debt, if my spouse was never on the loan and the loan got obtained before we got married?
Lawsuit / Dispute Attorney
You are not liable for your spouse's student loans. However, a debt collector is entitled to contact the spouse to discuss the debt. I would not agree under any circumstances to make payments. If you like, give your spouse the money, so he or she can pay it. If your spouse is sued, you need to have none of your assets commingled with your spouse's assets. There is a chance he or she will be sued, so don't have any assets together under both your names. I have represented several borrowers being sued on student loan debts.
Your spouse is not responsible for the student loans you took out prior to the marriage. Make sure that you do not have joint checking and savings accounts or they could be taken when there is a garnishment.
The amounts that can be taken from your wages to satisfy a garnishment depend on how much you make. Also, this number will change in July 2010, so I am going to give you the new numbers, which in many States will equal or be less then the current minimum wage in your State.
The law that controls garnishments is the federal “Consumer Credit Protection Act” 15 USC §§ 1671-1677. It protects a portion of the wages based on the following schedule that is tied to the federal minimum wage. On July 23, 2009 the minimum wage increases to $7.25 per hour. (You can use this number to estimate the current amount protected).
The amount of disposable income that cannot be garnished on or after that date is $217.50, or 30 hours at the Federal minimum wage for the week in question.
Only the amount over that can begin to be garnished. It is your employers’ duty to determine the appropriate amount of the garnishment, and not just rely on an order from a court.
Only the amount over $217.50 can be subject to the garnishment when total compensation is less than $290.00. If disposable earnings are more than $290.00 in any given week up to 25% of the wages can be garnished under federal standards. However State restrictions on garnishment should be checked in every case, as they may provide greater protection.
Conversely in many Sates Child Support payments or arrears are subject to higher maximum withholding standards.
In New York the maximum amount recoverable is ten percent (10%) of gross income, or the federal maximum, whichever is less.
If the debtor is subject to garnishment for alimony, support or maintenance, the combined garnishments cannot exceed twenty-five percent (25%) of disposable earnings, but can be as high as 65% for child support.
Income executions are prioritized by order of delivery to the Sheriff, but garnishments for alimony support or maintenance always take priority.
The execution is a two-stage process. First, the sheriff serves the execution on the debtor at his or her residence. If the debtor does not begin making payments within twenty (20) days, the sheriff levies on the employer.
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.