I was recently asked online whether or not someone’s former spouse could, in his words, “attack my damn pension” because of spousal support arrears. Many times payee spouses (those who are supposed to be receiving support) feel like there is nothing they can do when the other spouse fails to pay. They feel powerless.
That is why we have the writ of execution and wage garnishment. Under California Family Code Section 5100 et seq. the payee can get a writ of execution against the other party’s property and have the sheriff collect it for them. In addition, section 5103 goes on to specifically include employee benefit plans such as 401k plans. Cars, bank accounts, boats, 401k’s, etc. are all fair game. One limit is a hardship exception, but that exception does not usually apply.
In addition to writs of execution, spouses can garnish future wages. Now, wage garnishment is subject to Federal limitations. The lesser of the following can be garnished.
- The amount by which a debtor’s weekly income is greater than 30 times the minimum wage. The current minimum wage is $7.25 an hour, making the 30 hour weekly total $217.50. This leaves the debtor with something to live on, though it clearly can be less than is needed to meet minimum obligations.
- 25% of disposable income. Disposable income is defined as the income that is left after all legally required deductions are taken from a person’s paycheck. This include Federal and State Taxes, FICA, State Unemployment and Disability Taxes , with “disposable income” defined as income left after legally required deductions from a person’s paycheck, such as FICA. Other obligations, such as voluntary contributions to retirement accounts, deductions for medical, dental or vision insurance, or contribution to a Medical Savings Account are not exempt and will be considered part of the disposable income.
Now, your former spouse may sell their car, hide the cash under the mattress, get an illegitimate cash under-the-table job, not own a boat, or a retirement plan and avoid any susceptibility to your collection efforts. But here’s hoping they didn’t read this blogpost. If they are hiding everything at least you get to enjoy the fact that you are making them live life on the run.