Wage garnishment because of maintenance and support arrears
If the maintenance payments of the ex-partner are always missing, one should think about a maintenance execution. Often this happens through wage garnishment.
1. Missing alimony payments and wage garnishment
If the ex-partner does not meet his or her maintenance obligations, one should consider suing for maintenance as we have described. The action for maintenance (judicial determination of maintenance claims) must be distinguished from the enforcement (enforcement of maintenance claims by means of compulsory execution) of these maintenance claims. Since alimony payments accrue monthly and thus quickly add up to considerable sums, a wage garnishment will often be pending with the ex-partner. Because the partner's earned income is regularly his only attachable asset.
How exactly does a wage garnishment due to maintenance claims work and how much can be garnished at all?? And what are the obligations of the employer if one of his employees is subject to wage garnishment?? The following article gives an overview of what to consider in the process.
2. From the maintenance claim to the enforceable maintenance title
First of all, the maintenance claim should be asserted in writing to the partner liable to pay maintenance, because the maintenance claim only exists from the date of the first assertion! If you file a claim in court, you can obtain an enforceable maintenance order through a successful lawsuit (court confirms the maintenance claim). This can be static (monetary amount) or dynamic (monetary amount adjusted in case of changes) in nature. A dynamic title is more practicable, because in the event of changes – e.G. In the case of a divorce – the title can be used for the payment of alimony.B. Changed salary of the debtor – no need to obtain a new title.
An enforceable maintenance order does not necessarily require a previous judgment in court. Other possibilities are
- The drawing up of a youth welfare office document at the local youth welfare office
- The drawing up of a notarial deed with a notary public
- An out-of-court lawyer settlement
- A settlement in court.
All of these options have the fundamental advantage of being less expensive overall than a judgment. A jugendamtsurkunde for claims for children up to 21 years of age is the easiest and most cost-effective way. Of course, the parent liable for maintenance must be prepared to commit himself in the youth welfare office document by his signature.
The same applies to a notarial deed at the notary public's office. Only the notary costs are incurred here.
In the case of a lawyer's (out-of-court) settlement, only the lawyer's fees and no court fees are incurred, and the parent receives the professional advice of a lawyer. In order for the settlement to be enforceable, the party liable for maintenance must submit to immediate enforcement in the event of non-payment.
Settlement in court is often the last chance to come to an amicable agreement with the parent liable to pay child support. Even now, costs can still be saved: legal costs are lower if a settlement is reached in court and there is no judgment.
For such a settlement, it is necessary that both parents declare it in court and the judge records it. It is not sufficient if only one parent submits a written settlement and has the other sign on it (OLG karlsruhe v. 06.07.2010 – az. 5 UF 17/10).
3. Enforcement of the maintenance order
If there is a maintenance order, this can be enforced. This can be done by wage garnishment. This requires an attachment and transfer order, which must be applied for at the competent enforcement court – the local court at the place of residence of the parent liable to pay maintenance.
The following documents must be attached to the written application, for which a special form exists:
- An enforceable copy of the maintenance order, z.B. Of the settlement or judgment
- A proof of service (proof that the enforcement order was served on the parent liable for maintenance).
The garnishment and transfer order has the effect that the garnished part of the wage of the parent liable to pay maintenance can be claimed directly from his employer. The garnishment and transfer order is forwarded to the employer (called "third-party debtor" in the form). The latter must cooperate in the garnishment by deducting the garnishable part of the earned income (about this in a moment) from the wages and transferring this part directly to the dependent parent.
Incidentally, it is not necessary to request the debtor to pay the maintenance prior to the enforcement of the maintenance claim. This also applies if the person liable to pay maintenance has so far always paid the maintenance owed voluntarily and on time (cf. BGH v. 02.12.2009 – az. XII ZB 207/08).
4. Allowances and deductible in case of wage garnishment
The amount that can be garnished is not always easy to calculate. When garnishing wages – as is always the case with the enforcement of monetary claims – the garnishment exemption limits (allowances) of the code of civil procedure (more precisely: the garnishment table pursuant to section 850c of the code of civil procedure) must first be observed. This is because the garnishee must be left with enough to cover his or her own living expenses and not have to rely on state aid due to the garnishment (z.B. Basic income support) is instructed. Therefore, the amount that can be seized from the parent liable for maintenance in any case can be taken from the garnishment table. If the maintenance claim exceeds the garnishable amount, only this partial amount can be claimed from the other parent.
There is an important exception for the attachment of maintenance claims: if it is a matter of direct maintenance claims (legally stipulated maintenance payments), the entitled maintenance creditor (z.B. The ex-wife) even claim more money than provided for in the garnishment table. The obligated maintenance debtor (z.B. The ex-husband) must then only have enough money left over to cover his or her own necessary maintenance (deductible) (§ 850d para. 1 S. 2 ZPO). The provisions of §§ 850d and 850a of the german code of civil procedure (ZPO) contain further guidelines for calculating the amount that can be garnished – in this case, it is advisable to consult a family law specialist.
There are two important aspects to note regarding this garnishment privilege:
- The garnishment privilege according to § 850d ZPO is only granted upon explicit application
- If the wage garnishment relates to other claims in connection with maintenance claims (z.B. Reimbursement of costs against the ex-partner from maintenance proceedings that have already taken place), the enforcement privilege does not apply (BGH v. 09.07.2009 – az. VII ZB 65/08). Thus, only direct maintenance claims are covered – otherwise the garnishment table applies.
In summary, the following can be said about the enforcement of maintenance titles:
- Anyone wishing to enforce maintenance claims against their ex-partner can do so by garnishing their wages. The maintenance claim is then paid directly by the employer of the ex-partner liable to pay maintenance.
- In order to enforce the maintenance claim, i.E. To enforce it by way of compulsory enforcement, an enforceable maintenance title is required, for example from a judgment, an enforceable deed or a settlement.
- A garnishment and transfer order is required for wage garnishment.
- For direct maintenance claims, more money can be claimed on application than for normal garnishments.
- Other receivables (e.G.B. Reimbursements of expenses) shall be enforced in accordance with the usual exemption limits for garnishments.
6. Practice tip
Whoever obtains an enforcement order for maintenance claims raises the statute of limitations for maintenance claims from three to 30 years (sog. Enforcement statute of limitations). Maintenance can also be demanded (subsequently) if the ex-partner liable to pay maintenance has "come into money again".
As always, the following also applies to the amount of the garnished wage: trust is good – control is better! This is especially true for smaller employers, where the calculation and deduction of wage garnishment amounts may not occur as often as in large companies and corporations. The enforcement privilege for maintenance claims, for which the normal garnishment table does not apply, is often not as common as a "normal" wage garnishment. By the way, the garnishment table is not to be confused with the "dusseldorf table": in the latter, it is first determined how much alimony must be paid at all.