What part of the salary can be garnished? Does it include other concepts such as allowances, extraordinary payments or allowances?
Wage garnishment allows compliance with an executive order against a debtor, an employee, withholding part of it to satisfy his debt.
However, the law protects the executed debtor so that his entire salary cannot be seized to the point of compromising his own subsistence, there being a minimum amount that is considered unattachable. All salary perceptions received above said minimum amount can be subject to embargo.
The limits of the unattachability of wages are established by law according to the following scale that starts from the minimum interprofessional salary (SMI), which marks that minimum amount that is unattachable:
|Up to 1 SMI||–|
|From 1 to 2 SMIs||30%|
|From 2 to 3 SMIs||50%|
|From 3 to 4 SMIs||60%|
|From 4 to 5 SMIs||75%|
|Excess 5 SMI||90%|
However, the law itself establishes that these limits are not applicable when proceeding by execution of a sentence that condemns the food payment, in all cases in which the obligation to satisfy them arises directly from the law, including the pronouncements of the sentences issued in processes of nullity, separation or divorce on food due to the spouse or children or of the decrees or public deeds that formalize the regulatory agreement that establishes them. In these cases, as well as in those of the corresponding precautionary measures, the court sets the amount that can be seized.
It should also be taken into account that not all the amounts received in the payroll can be seized, nor are these non-seizure limits applied to them. The following rules must be taken into account:
– The garnish is made on the net or liquid salary, that is, on the amount that results after deducting the corresponding personal income tax withholding and the Social Security contribution. The indicated SMI non-seizure limits are applied to this amount.
In addition, it must be taken into account that these limits do not apply to the excess that may be in the bank account, regardless of its origin and provenance.
– Extra payments. They are considered salary, and may be subject to embargo. However, two situations could be distinguished:
a) the worker receives, together with the ordinary monthly payment, an extraordinary bonus or pay. The non-seizure limit is constituted by twice the monthly SMI and the scale is applied to the excess.
b) It is received on a prorated basis. The limit is constituted by the amount of the SMI in annual computation (monthly SMI x 14 payments) prorated over 12 months. The aforementioned scale is applied to the excess.
– Diets, expenses and other non-salary items. They are attachable. Their particularity is that, since they do not have a salary nature, they can be seized in their entirety. The limits of non-seizability of the SMI are not applicable to them, without prejudice to what is established by the general tax provisions of seizure of assets and rights.
– Compensation for dismissal or termination of temporary contract. They do not have salary status for embargo purposes, so they could be subject to embargo in 100% of their amount.
– Temporary disability benefits replace salary, so they can be subject to seizure with application of the SMI non-seizure limits.
Our lawyers provide adequate advice and will defend your interests in situations such as the one described