Determine whether the garnishment is subject to an automatic stay
Wage garnishments are generally subject to an "automatic stay." The moment you file bankruptcy, an automatic stay is triggered. This prevents creditors from engaging in collection activities against the debtor, including wage garnishment. There are a few exceptions to the automatic stay, including wage garnishments for child and spousal support. If you are facing wage garnishment from a credit card company or bank, it is likely subject to an automatic stay and must cease as soon as you file bankruptcy.
Determine whether wages garnished in the last 90 days can be recovered
If the wages are subject to an automatic stay, make sure there was at least $600 garnished in the 90 days preceeding the date you file bankruptcy. If it is less, you cannot file a complaint to recover the wages.
Exempt the garnishment
When preparing your bankruptcy petition, make sure you have enough exemptions to protect the wages you wish to garnish. California, for example, has a wildcard exemption worth more than $20,000. If you were subject to $1,800 in wage garnishment in the last 90 days, you can use $1,800 from the wildcard and exempt that amount. The remainder of the wildcard can be used to exempt other property.
File bankruptcy to trigger the automatic stay
Once you determine that the garnishment is subject to an automatic stay, the sooner you file, the sooner you stop the garnishment. That means more money in your pocket and less in the plaintiff's.
File a complaint to recover the garnished wages
Once bankruptcy is filed, you can initiate an adversary proceeding and file a complaint against the party that garnished your wages. Note that you are limited to recovering up to 90 days of garnished wages. Also note that as a debtor in bankruptcy, there is no filing fee.
Seek legal counsel to assist you
This involves many sophisticated steps in both preparing a petition for bankruptcy, and filing a complaint via an adversary proceeding. There are strict service requirements and deadlines. Moreover, it is impossible to write down every step in this forum, but this provides the general outline of steps. Seek out legal counsel to assist you with the circumstances unique to your situation.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.
What determines Avvo Rating?
Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.