Salary garnishment in Colombia: When it applies and what you should consider

Salary garnishment is a legal tool that allows creditors to recover money owed by a debtor through the retention of a portion of their wages. In the context of overdue account recovery, salary garnishment is an effective measure when other collection attempts, such as pre-legal methods, have failed. However, this procedure is strictly regulated in Colombia to ensure that the debtor retains enough income for their subsistence.

This article examines when salary garnishment is applicable, the legal limitations for its implementation, and what aspects creditors and debtors should consider. Additionally, we explore how a proper approach to this process can contribute to efficient account recovery while complying with labor regulations.

What is salary garnishment?

Salary garnishment is a procedure whereby, under a court order, a portion of an employee’s wages is withheld to settle a debt. This mechanism is outlined in Colombia’s Substantive Labor Code and Law 1564 of 2012 (General Code of Procedure), which regulate the amounts that can be garnished and the conditions under which this measure applies.

The primary objective of salary garnishment is to ensure debt repayment without excessively compromising the debtor’s basic livelihood. Consequently, the law establishes clear limits on the portion of wages that can be garnished, protecting a part of the salary deemed non-garnishable.

When is salary garnishment applicable?

To proceed with salary garnishment, certain preliminary conditions must be met:

1. Existence of an Enforceable Debt:
There must be a debt recognized through an enforceable title (such as an accepted electronic invoice, promissory note, court judgment, payment agreement) and the creditor must have unsuccessfully attempted to collect the debt through other means. This is the fundamental requirement justifying garnishment.
2. Executive Claim:
The creditor must file an executive claim with a judge, presenting the title that proves the debt and requesting an order for garnishment of part of the debtor’s salary to cover the obligation. The judge will decide whether garnishment is warranted after reviewing the case.
3. Court Order:
Salary garnishment cannot be performed voluntarily or extrajudicially. A formal court order specifying the amount to be garnished is required.
4. Notification to the Employer:
Once the garnishment order is issued, the debtor’s employer is notified to begin withholding the specified percentage of the debtor’s wages and transferring it to the creditor. This ensures the measure’s transparency and legality.

Limits on salary garnishment

While salary garnishment is a legitimate measure, Colombian law imposes strict limits to prevent the debtor from being left without sufficient means for subsistence. These limits vary based on the wage amount, according to the following criteria:

• Non-Garnishable Minimum Wage:
An amount equivalent to one current legal monthly minimum wage (SMLMV) is non-garnishable, except in specific cases like child support debts. This means that if a worker earns the minimum wage or less, no part of their salary can be garnished.
• Garnishable Percentage:
For wages above the minimum wage, only up to 50% of the amount exceeding the SMLMV can be garnished. For example, if a worker earns double the minimum wage, half of the amount above the first minimum wage can be garnished, i.e., 50% of the second minimum wage.
• Exceptions for Support Debts:
In cases involving child or spousal support, the law allows garnishment of up to 50% of the total salary, even if the debtor earns only the minimum wage. These debts have special priority under Colombian law due to their importance for dependent family members’ welfare.

Key considerations in salary garnishment

While salary garnishment can be an effective measure for creditors, it must be handled responsibly and legally. Key points to consider include:

1. Transparency in the Procedure:
Both the debtor and the employer must be adequately notified of the garnishment order, and the procedure must be followed precisely to avoid challenges. Incorrect withholding or non-compliance by the employer could lead to penalties or delays in debt collection.
2. Assessment of Payment Capacity:
Before requesting salary garnishment, creditors should assess the debtor’s payment capacity. If the debtor has additional income or other attachable assets, garnishment may not be the only or best option. Exploring alternative conflict resolution mechanisms, such as conciliation, may also avoid the need for this measure.
3. Conciliation Before Garnishment:
In some cases, attempting conciliation with the debtor before initiating garnishment proceedings is advisable. This approach can resolve the conflict more quickly and without straining labor or business relationships. However, if conciliation fails or the debtor shows no willingness to pay, garnishment guarantees debt collection effectively.
4. Protection of Debtor Rights:
Salary garnishment, while legitimate, must respect debtor rights. The law safeguards a significant portion of their income to ensure basic needs are met. Any abuse in the execution of this measure could lead to nullification or reversal of the process.

Process for requesting salary garnishment

1. Filing the Executive Claim:
The creditor must file an executive claim with the appropriate judge, along with the enforceable title proving the debt. The claim should request salary garnishment as one of the precautionary measures to ensure obligation fulfillment.
2. Payment Order and Garnishment: Order
If the judge deems the claim legally valid, a payment order will be issued, instructing the debtor to settle the debt within a specified period. If the debtor does not pay or challenge the debt, the judge will issue a garnishment order specifying the amount to be withheld from the debtor’s wages.
3. Notification to the Employer:
The debtor’s employer will receive formal notice of the garnishment order and must withhold the specified portion of the salary. The employer is responsible for transferring the withheld funds to the court or the designated account to ensure the creditor receives payment.

Conclusion

Salary garnishment is an effective legal tool for overdue account recovery in Colombia, provided legal requirements are met, and the debtor’s rights are respected. This procedure can serve as an orderly and legal method for creditors seeking to recover debts without resorting to more extreme measures like asset seizure.

At Trébol Jurídico, we assist our clients in managing account recovery professionally and efficiently, including salary garnishment when necessary. We ensure that each step complies with current legal regulations, protecting the rights of both creditors and debtors, while always seeking the best strategy to guarantee successful debt recovery.