Illinois Writ of Garnishment

Introduction

Key Things to Know

1. 1

   In Illinois the instrument is called a wage deduction summons, and Section 12-805(a) has the clerk of the court in which the judgment was entered issue it against the employer on the creditor's affidavit, commanding that employer to appear in court and answer written interrogatories in writing under oath about the wages it owes the judgment debtor.

2. 2

   Illinois splits the vocabulary, and filing under the wrong Part collects nothing. Part 8 of Article XII is headed Wage Deductions and covers pay. Part 7 is headed Garnishment, and Section 12-701 confines it to a person indebted to the judgment debtor other than for wages, or holding the debtor's other property, who is then the garnishee.

3. 3

   The fee is a statutory maximum rather than a price. Section 27.1b(j) caps a wage deduction affidavit proceeding at $35, $45 or $65 by amount in controversy in a county of 3,000,000 or more, and at $15, $30 or $50 in every other county, and Illinois publishes no statewide schedule, so the operative figure is on your circuit clerk's own ordinance.

4. 4

   Section 12-803 caps collection for any work week at the lesser of 15 percent of the gross wages, salary, commissions and bonuses paid for that week, or the amount by which disposable earnings for the week exceed 45 times the greater of the federal and Illinois minimum hourly wages. At the $15.00 Illinois minimum that second prong walls off $675 of weekly disposable earnings.

5. 5

   Do not calculate on the federal numbers. Illinois is tighter on both prongs: 15 percent of gross rather than 25 percent of disposable, and 45 times the applicable minimum wage protected rather than 30 times the federal minimum. The notice prescribed in Section 12-805(a) prints the two limits as separate items, one under Illinois law and one under federal law.

6. 6

   One summons keeps working. Under Section 12-808(b) the balance due is a lien on the wages owed at service and that lien continues against subsequent earnings until the judgment and costs are paid, so you never re-serve, but it ends early if the employment relationship terminates or the underlying judgment is vacated or modified.

7. 7

   Section 12-808.5 is the trap. Where the order is not satisfied by the end of the first full calendar quarter after service, you must certify the unsatisfied balance as of the last day of each quarter and get that certification to the employer within 15 days of the quarter closing. Miss it and the employer must keep withholding while lawfully holding the money back from you.

Illinois Requirements for Writ of Garnishment

• Affidavit Filed With the Clerk Who Holds the Judgment

  Section 12-805(a) puts issuance in the hands of the clerk of the court in which the judgment was entered. The creditor files an affidavit that the named employer is indebted to the judgment debtor for wages due or to become due, with the debtor's name and last known address, plus written interrogatories, and the clerk issues the wage deduction summons. No judge and no levying officer sits in the chain.

• Wage Deduction Notice Mailed Before Filing

  The affidavit must carry a certification by the creditor or its attorney that the prescribed Wage Deduction Notice was mailed to the judgment debtor by first class mail at the last known address before the affidavit was filed. Section 12-811(e) refuses a deduction order in the creditor's favor without that certification and without the employer's computation summary.

• No Statewide Form, Local Circuit Rules Instead

  Section 12-805(a) states twice that the summons and the interrogatories shall be in a form consistent with local court rules, and Section 12-701 says the same for a garnishment summons. Illinois prescribes the wording of the Wage Deduction Notice and nothing else, so the filer uses the circuit's own packet. The Supreme Court's approved statewide post-judgment forms are citations to discover assets and the exemption motion, not this.

• Fee Capped at $15 to $65, Not Fixed

  Section 27.1b(j) of the Clerks of Courts Act caps rather than sets the fee for a wage deduction affidavit proceeding: by amount in controversy, not more than $35, $45 or $65 in a county of 3,000,000 or more, and not more than $15, $30 or $50 in any other county. There is no statewide schedule, so confirm the figure on the circuit clerk's ordinance. In a county under 1,000,000, Section 12-805(b)(1) adds clerk mail service at $2 per employer plus postage.

• Ceiling: 15 Percent of Gross, or the Excess Over 45x

  Section 12-803 limits collection for any work week to the lesser of 15 percent of the gross wages, salary, commissions and bonuses paid for that week, or the amount by which disposable earnings for the week exceed 45 times the greater of the federal and Illinois minimum hourly wages. At the $15.00 Illinois minimum that protects $675 of weekly disposable earnings. Tighter than the federal floor on both prongs, so do not calculate on 25 percent.

• Return Date 21 to 40 Days After Issuance

  Section 12-806 makes the summons returnable not less than 21 nor more than 40 days after the date of issuance, so the clock starts when the clerk issues rather than when the employer is served. Section 12-808(c) requires the employer's sworn answer on or before that return date. Service fewer than 3 days before the return date forces a continuance to a new date at least 21 days after service.

• Continuing Lien and the Quarterly Certification

  Section 12-808(b) makes the balance a lien on wages owed at service that continues against later earnings until the judgment and costs are paid, ending early only if employment terminates or the judgment is vacated or modified. Deducted wages arrive monthly. Section 12-808.5 then requires the creditor to certify the unsatisfied balance each quarter and deliver it to the employer within 15 days of the quarter closing, or the employer withholds and holds the money.

• Conditional Judgment Against the Employer

  An employer that fails to appear and answer faces a conditional judgment for the amount due upon the judgment against the debtor, a summons to confirm returnable 21 to 40 days after issuance, and confirmation plus costs if it still does not appear (Section 12-807). Section 12-808(f) repeats that for an employer that stops remitting without lawful excuse. Section 12-814(c) pays the employer 2 percent of the amount deducted and charges it to the judgment debtor.