Changes Coming to Georgia Garnishment Law
Miller & Martin PLLC Alerts | December 10, 2020
Author: Michael Kohler
This year Governor Kemp signed Senate Bill 443 into law. The new law made significant changes to Georgia’s garnishment code. Here are some of the most notable changes, which go into effect on January 1, 2021:
- Under the old law, continuing garnishments (i.e., typical wage garnishments) lasted 179 days (or about 6 months). Under the new law, they now last 1,095 days (or about 3 years).
- If the creditor is seeking to garnish wages based upon a private student loan (i.e., an educational or student loan for postsecondary educational expenses, but not a loan guaranteed under 20 U.S.C. § 1070, et seq.), then only 15% (not the typical 25%) of the debtor’s disposable income is subject to garnishment. A garnishee will only be deemed to have knowledge that a judgment is based upon a private student loan if the garnishment summons states so conspicuously on its face or if the garnishee receives a court order in the garnishment action stating such.
- If a debtor is not an employee subject to federal and state income tax withholding, then the employer will be considered to have no knowledge of (nor an obligation to determine) the disposable earnings of the debtor. In this situation, the employer may answer the garnishment without regard for any potential exemptions based on disposable earnings until the employer is served with (or consents to) a court order or a filed modification form (see No. 4 below) that contains an alternative and enabling basis for determining the amount subject to garnishment.
- An employer may be required to pay a lesser amount owed under a continuing garnishment if the creditor and debtor agree, they both execute a statutory form (i.e., Modification of Continuing Garnishment), and they provide a copy of the executed form to the employer in the appropriate manner. Although an employer must still serve answers with the Court, the modified payments are sent directly to the creditor instead of the Court.
- The new law clarifies that when financial institutions receive a continuing, child support, or spousal support garnishment, the debtor’s accounts are still subject to garnishment for only the next 5 days after service.
- Although most courts mandate electronic filing, a garnishee is permitted to file physical answers instead of submitting them electronically.
- Any non-attorney or entity engaged by a garnishee for the purpose of processing payrolls and accounts payable (e.g., a third-party payroll service provider) may now execute and file an answer on behalf of the garnishee without running afoul of Georgia’s unauthorized practice of law statute.
- If there is a contractual arrangement concerning how much a garnishee can reimburse itself for costs or fees for processing a garnishment, then the new law will no longer limit (e.g., cap expenses at $100) such contractual right.
Failure to handle a garnishment properly may subject the garnishee to a judgment for the garnishment amount. Please contact Michael P. Kohler at email@example.com or 404-962-6403 for any questions about these changes or other garnishment issues.