“Every person injured in an accident, other civil action or claim of right is entitled to recover damages on account of that person’s injuries.” Generally, that means that if you or someone else was injured in an accident, you are entitled to receive damages based on the extent of injury, as determined by the court. But what if the injury has rendered you unable to work? If this has happened, or even if you have become totally disabled, then you might be able to recover some of your lost wages through a “case for benefits”.
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A “case for benefits” is exactly what it sounds like-a process where you ask the court for the right to receive monthly benefits from the government if you have become disabled and unable to work. If you file a claim for benefits with the court, then the court will issue a wage garnishment order. This wage garnishment remains in place until you can prove that you are able to pay the requisite benefits.
So, just what is “wage garnishment”? In plain English, it’s an order from the court that your income is to be garnished. The amount that the court decides to garnish depends upon several factors. One of those factors is the extent of your injury and the amount of your medical bills.
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How can a court to impose a wage garnishment? In most cases, you must file a complaint with the court. You must then serve a summons to your employer providing him or her with the information that you intend to sue them. At that point, you can proceed with the lawsuit. Once the case is filed, you are automatically granted a hearing by the court-unless, of course, you waive the right to a trial.
What if you don’t intend to sue? You may still be subject to wage garnishment. Some state laws allow the garnishing penalty to be applied even if you don’t sue. That’s because the penalty can only be applied once you’ve received notice of your negative wage garnishment.
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When is wage garnishment actually applied? Usually, the first time you get a notice of wage garnishment it will be a notice sent by the court in the form of a certified letter. The next time the agency performs its collections, it has to send another certified letter. The third letter could be a notice of default. Default means the agency has no longer been able to collect any monies from you. If it becomes known to the agency that you’re behind on your payments, it may decide to start the whole process over.
Is there a way to avoid wage garnishment? Yes, there is. There are states that have “sovereign immunity” laws. Those laws protect the state from lawsuits by individuals outside of the state. Those laws prevent agencies from serving a wage garnishment against an individual living in another state. (You can check your state for this information.)
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While those protections do exist, you should still check with your local courthouse to make sure you won’t be subjected to the entire practice. It’s also important to remember that other judgments can exist against you. If, for example, your judgment debtor has an income tax debt or is involved in an ongoing tax dispute with the Internal Revenue Service, the judgment may allow collection efforts to continue. This may include wage garnishment.
If, after learning about wage garnishing, you decide to hire an attorney to help you challenge the practice. Keep in mind that the IRS will not accept your argument that the debt is exempt because the statute of limitations has expired. (A statute of limitations is a specific time period within which a creditor can begin legal collection efforts.) The IRS will insist that you prove to them beyond a reasonable doubt that the debt is valid. (Generally, the longer it takes you to pay the debt, the longer the IRS can pursue you.)
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In some states, the wage garnishment law may allow the collection of back taxes even if you’ve already paid your owed amounts in previous years. The IRS may use an automatic stay to block most collections until the tax debt is settled. The bankruptcy laws can bar you from using the bankruptcy as protection from the IRS, as well. While the bankruptcy option may not always work in your favor, you should definitely talk to an attorney before filing for Chapter 13 in an effort to prevent wage garnishing. The bankruptcy bar prohibits wage garnishing, but in some states, they may allow the debt to be discharged by showing that a substantial financial hardship existed without the benefit of the bankruptcy option.
Even if your state permits wage garnishments, you should be aware that the practice is governed by state law. It is important to fully research your state’s laws in this area and familiarize yourself with them. Only a trained attorney can determine whether a wage garnishment is right for your situation. The attorney will consult with you and your accountant to determine if the proposed action would violate the terms of your financial agreement. If the attorney determines that the action would be within the state’s regulations, then you may proceed with the debt resolution process.
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