Elderly Rights on Wage Garnishment

Finding out your wages are being garnished to cover a judgment for a debt you have defaulted on can be nothing short of devastating. It is stressful because you are looking forward to this check that you were going to use to pay your rent. And then--because of the garnishment that is on your paycheck--it's gone.

Now imagine being an older person, 62 or above, who has worked all of his life, and because your son or daughter has run up their credit cards $50,000 over the limit, the adult child suddenly decides to file for bankruptcy. If your name is also on the credit card, can your Social Security benefits be garnisheed, even if I am 62 or above, and am no longer working?

The answer is no. Federal statute exempts Social Security benefits by private creditors. Private creditors are credit card companies, medical bills, car companies, and mortgage lenders, just to name a few.

A point of clarification, however: Can you as a senior citizen be garnished? Yes, just like anyone else. If you have an income other than a Social Security check and have credit card debt or a car repossession, you can be taken to court, and yes, you can have your wages attached.

Why Social Security Benefits Are Ungarnishable

According to the socialsecurity.gov Web site, you cannot be garnished by any private creditors, if you are a senior citizen (or anyone else, for that matter) collecting Social Security Benefits. Section 207 of the Social Security Code clearly forbids it. The bank down the street must take a loss if you have defaulted on the credit card you were issued as a retiree or as a person who was still working at the time. It cannot hope to collect from you by getting a judgment out against you and attaching your wages. In fact, the author on Socialsecurity.gov points out that if someone threatens, or tries to garnish your Social Security wages, "tell them that such action violates Section 207 of the Social Security Act."

Cases In Which Seniors Can Be Garnished

There are cases where senior citizens can have their incomes garnisheed. Naturally, if you are one of those senior citizens who is still holding down a job and collecting a paycheck, your regular wages from work can be garnished by a credit card company or a medical bill company if you run up bills for tests which insurance does not cover.

Another such instance of this is one in which even benefits from Social Security can be attached if you owe the Federal Government money. According to WikiAnswers.com: "Yes, the IRS can garnish your Social Security Benefits, if this benefit is above $750, they can garnish 15 percent of your monthly benefits for taxes that are at least six months in arrears." Section 6334 of the IRC "allows benefits to be levied to cover unpaid federal taxes."(WikiAnswers.com/Q?can_the_irs_garnish_social_security_income).

You can appeal, citing economic hardship, but you should do it immediately on receiving the notice, or they'll garnish the next payment. Moreover, your proof of economic hardship must be solid. You must be able to prove that the garnishments allowed interfere with your ability to pay the rent, or keep the gas and lights on. Otherwise don't waste your time trying to get the garnishment reversed.

Additionally, if you are an older father who has separated from his wife or companion--even though you are now a man over 65 who is retired and collecting a social security check--that check can be garnisheed for child support.

Yet another instance where garnishment of older persons is allowed is alimony. If as part of your divorce decree, the judge awards your former wife alimony, she'll get it, even if it has to be taken out of your Social Security check.

When to Seek Legal Counsel

If you are not sure of how the law applies to your situation, it is best to seek legal help. While most attorneys do not work pro bono, many of them will offer you a free consultation. If that person can't--or won't--offer you a free consultation to explain your options in this case to you, then this is not the lawyer for you. Arm yourself with facts. Go to these meetings ready to take notes.

Seek a lawyer who knows about laws governing bankruptcy and garnishment. To do otherwise would be like trying to go to an ophthalmologist to check on problems with one's feet.

What If Money Is An Issue?

Go on the Internet or Yellow Pages and seek the location of a free legal aid center in your town. In so doing, make sure that two things are in force: Ask how "free" that free legal aid center is. Is it basically a free legal advice, or will they actually take your garnishment case on free of charge? Then ask them how much they know about geriatric law, especially when it comes to Social Security checks and garnishments. In fact, ask up front if they have such attorneys working for them full time.

You Do Not Have To Answer Collection Calls

Know your rights. There is no law in the land that says that you must pick up the phone when you see a strange 800 number on your caller ID. You do not have to tolerate the threats and abusive speech collection agents are known for. As a senior, as is the case with any age group--you do not have to respond to threats of legal action, such as garnishment--especially for a creditor who is trying to collect from you based on your Social Security check.

These bill collectors can only do so much. They can speak their piece--only if you choose to pick up the phone and give them the time of day. But if you find them annoying, and if you just so happen to have an attorney knowledgeable on the laws concerning the elderly and garnishments--tell them they can't garnish you, and if you don't believe them, invite them to call your attorney.

References

• Social Security Disability Resource Center
• social security online