07-17-2009, 08:30 PM
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Junior Member
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Join Date: Jul 2009
Posts: 22
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Quote:
Originally Posted by taxgirl
Disposable earnings are basically all earnings that are not legally required to be withheld by one's employer.
Thank you John Smith for answering, I cannot find anywhere where it says not legally required to be withheld by "one's employer". That's where I am having the problem. I have looked at the entire statute from beginning to end regarding garnishment and cannot find any reference to employers. If this is the case, why would someone who's volunteering to pay child support and getting garnished on a credit card payment even continue to pay child support? Why not let it get behind and have social services garnish him? He'd be ahead right?
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It's not explicitly in the statute, but it's how the courts interpret the statute. Check out a 1996 Colorado case called Rios v. Mireles:
Quote:
The statute states that "disposable earnings" are garnishable. That term is defined to mean "that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld." Section 13-54-104(1)(a), C.R.S. (1986 Repl.Vol. 6A).
"Require" in its ordinary context means to order or compel. See Black's Law Dictionary 1172 (5th ed.1979). Therefore, a party cannot be required to withhold payments due to another absent some kind of direction imposed by the law, such as a valid garnishment, court or administrative order, or other statutory mandate.
"Withhold" means, inter alia, to retain in one's possession that which belongs to or is claimed or sought by another. See Black's Law Dictionary 1437 (5th ed.1979). As such, the word is directed to the stakeholder of the particular fund. Thus, "withheld" in the context of the garnishment exemption statute means withheld by the employer.
Hence, if the employer is compelled or ordered by law to withhold payments due to the employee, such payments are not part of "disposable earnings."
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