LRB-0619/1
RPN:wlj:ch
2005 - 2006 LEGISLATURE
April 22, 2005 - Introduced by Representatives Owens, Jeskewitz, Ainsworth,
Nass, Hundertmark, Van Roy, Albers and Hahn, cosponsored by Senators
Roessler, Olsen and Grothman. Referred to Committee on Judiciary.
AB354,1,4
1An Act to amend 812.30 (8), 812.35 (5), 812.35 (6), 812.40, 812.44 (3) (form),
2812.44 (4) (form) and 812.44 (5) (form); and
to create 812.30 (7m), 812.34 (2)
3(b) 3. and 812.35 (7) of the statutes;
relating to: garnishment of the income of
4a minor.
Analysis by the Legislative Reference Bureau
Under current law, a person who has a civil judgment for a debt may bring an
action in circuit court to garnish the earnings of the person who owes the debt. The
creditor is required to comply with specified court procedures when bringing the
action, including serving one earnings garnishment form upon the debtor and the
other form upon the person who is the debtor's employer. Currently, the debtor may
claim an exemption from the garnishment or may assert a defense against the
garnishment.
Under current law, 80 percent of the debtor's disposable earnings (earnings left
after deducting social security, federal, and state taxes) are exempt from
garnishment. In addition, if the debtor's household income is below the poverty level
or if the debtor is receiving needs-based public assistance, all of the debtor's earnings
are exempt from garnishment. Currently, "household income" for purposes of this
exemption is defined to mean the disposable income of the debtor and the debtor's
dependents during the month in which the garnishment is in effect, plus any
unearned income received that month by the debtor and the debtor's dependents,
minus any of the debtor's earnings assigned by a family court order. The family court
may order the assignment of a person's earnings for the payment of child support,
family support, or maintenance.
Under this bill, if the debtor is a minor other than an emancipated minor, the
monthly disposable earnings of the debtor, of the parents of the debtor with whom
the debtor lives for at least 50 percent of the month, and of those parents' dependents,
plus the unearned income of the debtor, parents, and dependents, minus any of the
earnings of the debtor and parents that are assigned by a family court, are considered
the debtor's household income for purposes of a garnishment action. The bill,
however, exempts from garnishment all of an unemancipated minor's earnings if the
judgment that the creditor is seeking to satisfy is not a judgment for unpaid
restitution, costs, a forfeiture, or a surcharge entered by the court assigned to
exercise jurisdiction under the juvenile justice code.
Under current law, an earnings garnishment lasts for 13 weeks or until the debt
is collected through the garnishment, whichever is less, except that for public
employees, the garnishment continues until the debt is paid in full. This bill provides
that the garnishment of a minor debtor who is not emancipated continues until the
debt is paid in full.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB354, s. 1
1Section
1. 812.30 (7m) of the statutes is created to read:
AB354,2,22
812.30
(7m) "Emancipated minor" has the meaning given in s. 48.375 (2) (e).
AB354, s. 2
3Section
2. 812.30 (8) of the statutes is amended to read:
AB354,2,134
812.30
(8) "Household income" means the disposable earnings of the debtor
5and dependents during any month in which the garnishment is in effect, plus
6unearned income received by the debtor and dependents in that month, less any of
7the debtor's earnings assigned by court order under ch. 767.
If the debtor is a minor,
8other than an emancipated minor, "household income" means the disposable
9earnings of the debtor, of the parent that the debtor resides with for at least 50
10percent of the month, and of the parent's dependents during any month in which the
11garnishment is in effect, plus unearned income received by the debtor, the parent,
12and the parent's dependents in that month, less any of the debtor's and the parent's
13earnings assigned by court order under ch. 767.
AB354, s. 3
1Section
3. 812.34 (2) (b) 3. of the statutes is created to read:
AB354,3,52
812.34
(2) (b) 3. The debtor is a minor, other than an emancipated minor, and
3the judgment that the creditor is seeking to satisfy is not a judgment for unpaid
4restitution, costs, a forfeiture, or a surcharge entered by the juvenile court under s.
5895.035 (2m) (a) or (b).
AB354, s. 4
6Section
4. 812.35 (5) of the statutes is amended to read:
AB354,3,147
812.35
(5) Upon Except as provided in sub. (7), after being served, the
8garnishee shall determine whether the garnishee may become obligated to the
9debtor for earnings earned within pay periods beginning within 13 weeks after the
10date of service. If it is unlikely that the garnishee will become so obligated, the
11garnishee shall send a statement of that fact to the creditor by the end of the 7th
12business day after receiving the earnings garnishment form under sub. (3). The
13creditor shall send a copy of this statement to the court within 7 business days after
14receipt of the statement.
AB354, s. 5
15Section
5. 812.35 (6) of the statutes is amended to read:
AB354,4,316
812.35
(6) If Except as provided in sub. (7), if the garnishee may become
17obligated to the debtor for earnings earned within pay periods beginning within 13
18weeks after the date of service, but one or more earnings garnishments against the
19debtor have already been served on the garnishee and not terminated, the garnishee
20shall retain the earnings garnishment form and place the garnishment into effect the
21pay period after the last of any prior earnings garnishments terminates. The
22garnishee shall notify the debtor of the amount of the garnishment and shall notify
23the creditor of the amount owed on the pending garnishments by the end of the 7th
24business day after receipt of the garnishment form under sub. (3). If, before the
25earnings garnishment takes effect, the garnishee determines that it is unlikely that
1the garnishee will continue to be obligated to the debtor for earnings, the garnishee
2shall notify the creditor and court under sub. (5) within 7 business days after making
3that determination.
AB354, s. 6
4Section
6. 812.35 (7) of the statutes is created to read:
AB354,4,135
812.35
(7) (a) If the debtor is a minor, other than an emancipated minor, the
6garnishment shall continue until the amount that the creditor is seeking in the
7garnishment is paid in full. The garnishee shall determine whether the garnishee
8may become obligated to the debtor for earnings earned after the date of service. If
9it is unlikely that the garnishee will become so obligated, the garnishee shall send
10a statement of that fact to the creditor by the end of the 7th business day after
11receiving the earnings garnishment form under sub. (3). The creditor shall send a
12copy of this statement to the court within 7 business days after receipt of the
13statement.
AB354,4,2514
(b) If the garnishee may become obligated to the debtor for earnings earned
15within pay periods beginning after the date of service, but one or more earnings
16garnishments against the debtor have already been served on the garnishee and not
17terminated, the garnishee shall retain the earnings garnishment form and place the
18garnishment into effect the pay period after the last of any prior earnings
19garnishments terminates. The garnishee shall notify the debtor of the amount of the
20garnishment and shall notify the creditor of the amount owed on the pending
21garnishments by the end of the 7th business day after receipt of the garnishment
22form under sub. (3). If before the earnings garnishment takes effect the garnishee
23determines that it is unlikely that the garnishee will continue to be obligated to the
24debtor for earnings, the garnishee shall notify the creditor and court under par. (a)
25within 7 business days after making that determination.
AB354, s. 7
1Section
7. 812.40 of the statutes is amended to read:
AB354,5,14
2812.40 Stipulated extension. At any time while an earnings garnishment
3is in effect, the debtor and creditor
, if the debtor is an adult or emancipated minor, 4may stipulate in writing to an extension of the earnings garnishment for additional
5pay periods. The extension may commence on the first day after the earnings
6garnishment ends and shall end within 13 weeks after the last day of the last pay
7period affected by the earnings garnishment. The garnishee shall be bound by the
8extension if a copy of the stipulation is delivered or mailed to the garnishee, together
9with an additional garnishee fee under s. 812.33, before the last day of the last pay
10period affected by the earnings garnishment or any prior stipulated extension of the
11earnings garnishment. A stipulated extension is void and the garnishee fee shall be
12refunded if, prior to the last day of the last pay period affected by the earnings
13garnishment, the garnishee is served under s. 812.35 (3) by a creditor seeking to
14satisfy a different judgment against the debtor.
AB354, s. 8
15Section
8. 812.44 (3) (form) of the statutes is amended to read:
AB354,5,1616
812.44
(3) (form)
AB354,5,1717
STATE OF WISCONSIN
AB354,5,1818
CIRCUIT COURT:.... County
AB354,5,2020
A.B., Creditor
AB354,5,2121
vs. File or Reference Number....
AB354,5,2222
C.D., Debtor EARNINGS
AB354,5,2323
and GARNISHMENT
AB354,5,2424
E.F., Garnishee
AB354,6,1
1THE STATE OF WISCONSIN, To the garnishee:
AB354,6,32
The creditor has been awarded a court judgment that has not been paid. As a
3result, the creditor claims that a total of $.... is owed by the debtor, as follows:
AB354,6,44
A. Unpaid balance on judgment $....
AB354,6,55
B. Unpaid postjudgment interest $....
AB354,6,66
C. Costs of this earnings garnishment
AB354,6,77
(estimated) $....
AB354,6,119
The creditor believes that you will owe the debtor for earnings within the next
1013 weeks
, or if the debtor is an unemancipated minor, within any time. If the $15
11fee is tendered with these papers, you are directed by the court to do the following:
AB354,6,1212
DETERMINE WHETHER YOU WILL
AB354,6,1313
OWE THE DEBTOR EARNINGS
AB354,6,1614
1. Determine if you are likely to owe the debtor for earnings in pay periods
15beginning within the next 13 weeks
, or if the debtor is an unemancipated minor,
16within any time.
AB354,6,2017
2. If you are not likely to owe the debtor for earnings in pay periods beginning
18within the next 13 weeks
, or if the debtor is an unemancipated minor, within any
19time, send a statement stating that fact to the creditor by the end of the 7th business
20day after receiving the earnings garnishment forms.
AB354,6,2121
IF THE DEBTOR SENDS YOU AN ANSWER
AB354,6,2522
3. Whenever you receive a debtor's answer form from the debtor, mail a copy
23of the answer form to the creditor by the end of the 3rd business day after receipt of
24that form. Include the date you received the answer form on the copy sent to the
25creditor.
AB354,7,3
14. If the debtor's answer form claims a complete exemption or defense, do not
2withhold or pay to the creditor any part of the debtor's earnings under this
3garnishment unless you receive an order of the court directing you to do so.
AB354,7,44
MULTIPLE EARNINGS GARNISHMENTS
AB354,7,125
5. If the debtor's earnings are already being garnisheed when you receive this
6earnings garnishment, place this earnings garnishment into effect the pay period
7after the last of any prior earnings garnishments terminates. Notify the debtor of
8the amount of the garnishment and notify the creditor of the amount owed on the
9pending garnishments by the end of the 7th business day after you receive these
10forms. If there are no prior pending earnings garnishments against the debtor's
11earnings, place this earnings garnishment into effect the pay period after you receive
12it.
AB354,7,1313
EARNINGS GARNISHMENTS LAST 13 WEEKS,
AB354,7,1414
EXCEPT FOR PUBLIC EMPLOYEES
AB354,7,2415
6. The garnishment of the earnings of employees of the state of Wisconsin and
16its political subdivisions
and of unemancipated minors remain in effect until the
17judgment is satisfied. The garnishment of earnings of other employees will affect the
18debtor's earnings for all pay periods beginning within 13 weeks after you receive it,
19unless the debtor's earnings are already being garnisheed. If this earnings
20garnishment is delayed under paragraph 5, above, it will affect the debtor's earnings
21for all pay periods beginning within 13 weeks after the first day of the pay period that
22you put this earnings garnishment into effect. If the amount claimed by the creditor
23is fully paid before the end of the 13 weeks, this earnings garnishment will terminate
24at that point.
AB354,7,2525
PAYING THE CREDITOR
AB354,8,3
17. Between 5 and 10 business days after each payday of a pay period affected
2by this earnings garnishment, pay the creditor 20% of the debtor's disposable
3earnings for that pay period. Payment is complete upon mailing.
AB354,8,44
EFFECT OF COURT-ORDERED
AB354,8,55
ASSIGNMENTS FOR SUPPORT
AB354,8,136
8. If the debtor has assigned his or her earnings for support by court order, those
7support payments take priority over this earnings garnishment. If 25% or more of
8the debtor's disposable earnings is assigned for support by court order, do not pay any
9part of the debtor's earnings to the creditor. Instead, send the creditor a statement
10of that fact by the end of the 7th business day after you receive these forms. If less
11than 25% of the debtor's earnings is assigned for support by court order, the amount
12the creditor must be paid is reduced so that the total of earnings assigned and
13garnisheed does not exceed 25% of the debtor's disposable earnings.
AB354,8,2215
9. The debtor and creditor may agree in writing to extend this earnings
16garnishment for additional pay periods beginning within 13 weeks after this
17earnings garnishment would otherwise terminate
if the debtor is an adult or an
18emancipated minor. If you receive a written extension stipulation, and an additional
19garnishee fee for each extension, you must honor it unless a different garnishment
20against this debtor's earnings is served upon you before the extension takes effect.
21In that case, the extension is void and you must return the extension fee to the party
22who paid it to you.
AB354, s. 9
23Section
9. 812.44 (4) (form) of the statutes is amended to read:
AB354,8,2424
812.44
(4) (form)
AB354,8,2525
STATE OF WISCONSIN