New Mexico Writ of Garnishment
A New Mexico writ of garnishment orders the garnishee to answer under oath within 20 days of service on statewide form 4-807. Exempt is the greater of 75 percent of disposable earnings or 40 times the highest applicable minimum wage. Attorney review available.
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Introduction
Twenty days from the date of service. That is the whole clock a New Mexico garnishee gets, and what it owes you at the end of it is not money but an answer under oath. Section 35-12-2(A) of the New Mexico Statutes orders the garnishee to appear and answer three questions as of two different dates, the day it was served and the day it answers: what it owes the judgment debtor and on what account, what personal property of the debtor it holds, and who else it knows of who owes the debtor or holds the debtor's property. The statewide answer form is 4-807. Nothing moves until that answer is in, because the statute builds the whole remedy on top of it: Section 35-12-4(D) has the court take the answer and render judgment against the garnishee for your unpaid balance, then order it to pay you the non-exempt wages each pay period until the judgment is satisfied, and Section 35-12-9(A) makes that judgment a lien on the wages that come due afterwards. Service in the meantime does real work of its own. Section 35-12-3(A) attaches not only what the garnishee held when the sheriff arrived but everything that comes into its hands, or becomes owing by it, between service and the answer, so the writ catches a window rather than a snapshot. Silence is the expensive option for a garnishee: under Section 35-12-4(B) a failure to answer under oath inside those 20 days lets the court enter judgment against the garnishee for the full amount of your judgment against the debtor, with all interest and costs. Earning the writ comes first, though. New Mexico issues it in aid of execution only on a sworn statement that the debtor has no property in this state subject to execution. DocDraft builds your New Mexico garnishment papers from your facts, with attorney review available before you file.
Key Things to Know
- 1
A New Mexico writ of garnishment reaches whatever the garnishee owes or holds for the judgment debtor at the moment of service plus anything that reaches its hands or becomes owing before it answers, but it does not reach the 75 percent of disposable earnings the state exempts, the weekly floor of 40 times the highest applicable minimum hourly wage, or the first $2,400 in an individual's depository and investment accounts.
- 2
The paper is actually called a writ of garnishment here. Searching Article 12 of Chapter 35 returns 15 hits for that phrase and none at all for an earnings withholding order or an income execution, and the statutory form itself sits in Section 35-12-18.
- 3
You have to swear the debtor is out of reachable property first. Section 35-12-1(B) issues a garnishment in aid of execution only on an affidavit that the debtor has no property in New Mexico subject to execution to satisfy the judgment, and form 4-805 adds that the signer has a duty to make a reasonable investigation into that statement.
- 4
The exempt share is the greater of two figures, not the lesser: 75 percent of the debtor's disposable earnings for the pay period, or an amount each week equal to 40 times the highest applicable minimum hourly wage rate at the place the wages were earned (Section 35-12-7(A)). That leaves 25 percent as the most the writ can pull, and nothing at all in a thin week.
- 5
Highest applicable means highest, not federal. Section 35-12-7(B)(2) defines it as the highest federal, state or local minimum hourly wage for an eight-hour day and forty-hour week, and says it is immaterial whether the garnishee is itself exempt from paying that rate, so a city or county minimum raises the protected floor above the state figure of $12.00 an hour.
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Three courts issue it and the issuer differs. Section 35-12-19 allows garnishment in the district court, the magistrate court or the small claims court that the Bernalillo County Metropolitan Court replaced, and provides that where the district court has jurisdiction the district court clerk may issue the writ.
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A garnishee that answers properly gets paid for the trouble, sometimes by you. Section 35-12-16(B) requires the court to award a garnishee that answers as required its actual costs and a reasonable attorney fee, against the debtor if you prevail but against you if the garnishee does, while your own recoverable costs and fee are each capped at 10 percent of the judgment entered against the garnishee.
Key decisions before you file
Before you file a Writ of Garnishment in New Mexico, a few decisions shape the document: which option to choose and what each one means. The Writ of Garnishment guide walks through them.
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New Mexico Requirements for Writ of Garnishment
Sworn No Property Affidavit on Form 4-805
Garnishment in aid of execution issues only on an affidavit that the debtor has no property within New Mexico subject to execution to satisfy the judgment, and the same affidavit must name a garnishee believed indebted on a non-exempt debt or holding the debtor's personal property (Section 35-12-1(B) and (D)). Form 4-805 carries the allegation plus a duty to make a reasonable investigation, and it must be sworn unless an attorney signs it.
The Writ Itself: Form 4-806
New Mexico prescribes the writ statewide. Form 4-806, Writ of Garnishment, Supreme Court approved 1 November 2024, tracks the statutory form in Section 35-12-18 and carries one caption for the district, magistrate and metropolitan courts. It must state on its face whether it issues in advance of judgment or in aid of execution, because a pre-judgment writ attaches no wages at all.
Issuing Court, and Who Signs
Section 35-12-19 allows garnishment in the district court, the magistrate court, or the small claims court the Bernalillo County Metropolitan Court succeeded, and provides that where the district court has jurisdiction the district court clerk may issue the writ. Magistrate civil jurisdiction stops at $10,000 exclusive of interest and costs (Section 35-3-3(A)), and a magistrate garnishment on another court's judgment requires the unpaid balance to stay inside that figure (Section 35-12-1(C)).
Ceiling: Exempt Is the Greater of 75 Percent or 40x
Exempt from a New Mexico writ in every case other than support is the greater of 75 percent of the debtor's disposable earnings for the pay period, or an amount each week equal to 40 times the highest applicable minimum hourly wage rate at the place the wages were earned (Section 35-12-7(A)). The writ reaches at most 25 percent, and nothing in a week at or below the floor. Highest applicable means the highest federal, state or local rate for an eight-hour day and forty-hour week, immaterial whether the garnishee pays it (Section 35-12-7(B)(2)). Support is the exception, at 50 percent.
Sworn Answer Within 20 Days, on Form 4-807
The garnishee must appear and answer under oath within twenty days from the date of service, as of the date of service and again as of the date of answer, on what it owes the debtor and on what account, what property of the debtor it holds, and who else it knows owes the debtor (Section 35-12-2(A)). Form 4-807 is the statewide answer and also requires the garnishee to attach every other writ or wage-withholding order served on it. A copy of the garnishment goes to the debtor's last known address at the time of service (Section 35-12-2(C)).
The Window Between Service and Answer
Service attaches the debtor's nonexempt personal property, money, rights, credits, bonds, bills, notes, drafts and other choses in action held at the time of service and anything that comes into the garnishee's hands or becomes owing between service and the answer (Section 35-12-3(A)). A financial institution garnishee has its own carve-out: an individual or sole proprietor keeps an exemption totalling $2,400 across depository and investment accounts and the writ attaches only above it (Section 35-12-18, added effective 1 July 2023).
Judgment on the Writ, Then a Wage Lien
The answer is the hinge. Where the debtor is the garnishee's employee, the court renders judgment for the unpaid balance and orders the garnishee to pay each pay period the wages that are not exempt and that come due after the answer, until the judgment is satisfied or the garnishee gives written notice that the employment has terminated (Section 35-12-4(D)). That judgment becomes a lien on those later wages (Section 35-12-9(A)). Competing liens are satisfied in the order the garnishment was served (Section 35-12-9(B)). Forms 4-811 and 4-812 enter it; form 4-814 releases it.
Costs, Fees, and What a Silent Garnishee Owes
A garnishee that does not answer under oath inside the twenty days can have judgment entered against it by default for the full amount of the judgment against the debtor, with all interest and costs (Section 35-12-4(B)); you move on form 4-810 with a hearing on not less than three days notice and take form 4-813. Budget the other side of the ledger too: your recoverable costs and attorney fee are each capped at 10 percent of the judgment against the garnishee, and a garnishee that answers as required is awarded actual costs and a reasonable fee, against you if it prevails (Section 35-12-16).