Illinois wage deduction: the cap, and the hearing you must ask for by the return date

Illinois does not call it garnishment when it takes money out of a paycheck. The statute calls it a wage deduction, it runs on Part 8 of Article XII of the Code of Civil Procedure, and it has two numbers worth knowing before anything else: the ceiling on what can be taken, and the date by which you have to ask for a hearing.

Miss the second one and the deduction order is entered without your side of it.

What can actually be taken

735 ILCS 5/12-803 sets the cap, and it is a two-part test where the smaller figure wins:

The wages, salary, commissions and bonuses subject to collection under a deduction order, for any work week shall be the lesser of (1) 15% of such gross amount paid for that week or (2) the amount by which disposable earnings for a week exceed 45 times the Federal Minimum Hourly Wage prescribed by Section 206(a)(1) of Title 29 of the United States Code, as amended, or, under a wage deduction summons served on or after January 1, 2006, the minimum hourly wage prescribed by Section 4 of the Minimum Wage Law, whichever is greater, in effect at the time the amounts are payable.

Work through it in order, because the drafting is dense:

1. Take 15% of gross for the week.
2. Separately, take disposable earnings minus 45 times the minimum hourly wage. The rate used is the federal minimum or the Illinois minimum under Section 4 of the Minimum Wage Law — whichever is greater — in effect when the money is payable. Illinois' minimum has for some years exceeded the federal one, so in practice this is usually the Illinois figure.
3. The creditor gets the lesser of those two amounts.

Because branch (2) is a floor expressed as a multiple of the minimum wage, a worker earning below roughly 45 hours' worth of minimum wage in disposable earnings each week has nothing available under branch (2) — and since the creditor takes the lesser of the two, nothing is deducted at all.

Two more sentences in the same section matter:

No amounts required by law to be withheld may be taken from the amount collected by the creditor. The term "disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

So "disposable earnings" is gross minus legally required withholding — tax and the like. It is not gross minus your rent.

Note also that the statute reaches beyond salary: wages, salary, commissions and bonuses.

The notice that has to come first

A creditor cannot simply have a summons issued. Section 12-805(a) conditions issuance on a certification that the debtor was warned:

Upon the filing by a judgment creditor, its attorney or other designee of (1) an affidavit that the affiant believes any person is indebted to the judgment debtor for wages due or to become due … and a certification by the judgment creditor or his attorney that, before filing the affidavit, the wage deduction notice has been mailed to the judgment debtor by first class mail at the judgment debtor's last known address, and (2) written interrogatories to be answered by the employer with respect to the indebtedness, the clerk of the court in which the judgment was entered shall issue summons against the person named in the affidavit as employer commanding the employer to appear in the court and answer the interrogatories in writing under oath.

That certification is not cosmetic. Section 12-811(e):

No deduction order shall be entered in favor of the judgment creditor unless the affidavit filed by the judgment creditor certifies that a copy of the wage deduction notice has been mailed to the judgment debtor, under Section 12-805, and the employer's answer provides a summary of the computation used to determine the amount of non-exempt wages.

Two independent requirements, either of which can be checked: the notice certification, and a computation summary in the employer's answer. An answer that states a number without showing the computation does not satisfy the second.

The hearing — and the deadline that decides whether you get one

This is the provision to act on. Section 12-811(b):

At any time on or before the return date, the judgment debtor may request a hearing to dispute the wage deduction because the wages are exempt by notifying the clerk of court before that time, using forms as may be provided by the clerk of the court. To obtain a hearing in counties with a population of 1,000,000 or more, the judgment debtor must notify the clerk of court in person and in writing at the clerk's office before the return date specified in the summons or appear in court on the date and time specified in the summons. To obtain a hearing in counties with a population of less than 1,000,000, the judgment debtor must notify the clerk of the court in writing at the clerk's office on or before the return date specified in the summons.

The return date is printed on the summons, and it is the whole deadline. The mechanics then split by county size:

After you request it, the clerk supplies the date and the forms, and the statute puts the sending burden on you:

The Clerk of Court will provide a hearing date and the necessary forms that must be prepared by the judgment debtor or the attorney for the judgment debtor and sent to the judgment creditor and the employer, or their attorney, regarding the time and location of the hearing. This notice may be sent by regular first class mail.

Then the court moves quickly — "At the hearing the court shall immediately, unless for good cause the hearing is continued, proceed to try the issues."

What is exempt

Section 12-804 is short and absolute on retirement money:

Benefits and refunds payable by pension or retirement funds or systems and any assets of employees held by such funds or systems, and any monies an employee is required to contribute to such funds or systems are exempt and are not subject to a deduction order under Part 8 of Article XII of this Act. A plan governed by the Employee Retirement Income Security Act of 1974 shall be considered a retirement fund for purposes of this Part 8.

The wage deduction notice the creditor must mail says the same thing in plainer words, and tells the debtor the hearing right exists — which is why the certification requirement matters so much.

What your employer must do

Section 12-808(a)–(b) splits the paycheck and creates a continuing lien:

(a) An employer served as herein provided shall pay the employee the amount of his or her exempt wages.

(b) To the extent of the amount due upon the judgment and costs, the employer shall hold, subject to order of court, any non-exempt wages due or which subsequently come due. The judgment or balance due thereon is a lien on wages due at the time of the service of summons, and such lien shall continue as to subsequent earnings until the total amount due upon the judgment and costs is paid, except that such lien on subsequent earnings shall terminate sooner if the employment relationship is terminated or if the underlying judgment is vacated or modified.

Three consequences worth spelling out. The exempt portion must still be paid to you — an employer withholding the whole cheque is not following the statute. The lien continues against future pay until the judgment is satisfied, so this is not a one-time deduction. And it ends early if the employment ends or if the underlying judgment is vacated or modified — which is the link between this and any motion to vacate the judgment that produced the deduction.

The employer also owes you a copy of its answer. Section 12-808(c) requires the employer to "mail by first class mail or hand deliver a copy of the answer to the judgment debtor" at the address in the creditor's affidavit or any other address known to the employer.

Priority runs in order of service, with one exception: "liens for the support of a spouse or dependent children shall have priority over all other liens obtained hereunder."

How Illinois compares

A short checklist

1. Find the return date on the summons. Every other step is measured against it.
2. Request the hearing on or before that date, in writing — and in Cook County, in person and in writing, or by appearing on the date in the summons.
3. Send the clerk's forms to the creditor and the employer yourself. The statute puts that on the debtor; first class mail is enough.
4. Check that the creditor certified mailing the wage deduction notice. Without it, § 12-811(e) bars entry of a deduction order.
5. Check the employer's answer for a computation summary, not just a number — § 12-811(e) requires it.
6. Run both branches of the § 12-803 cap yourself: 15% of gross, and disposable minus 45 × the applicable minimum wage. The creditor gets the smaller, and sometimes that is zero.
7. Claim pension and retirement money as exempt. Section 12-804 removes it entirely, and ERISA plans count.
8. Confirm your employer is still paying you the exempt part. Section 12-808(a) requires it.
9. Remember the lien is continuing — it follows future paychecks until the judgment is paid, and ends early only if the job ends or the judgment is vacated or modified.

Where these rules live

• 735 ILCS 5/12-803 — Wages subject to collection
• 735 ILCS 5/12-804 — Exemptions from deduction orders
• 735 ILCS 5/12-805 — Summons; Issuance
• 735 ILCS 5/12-808 — Duty of employer
• 735 ILCS 5/12-811 — Trial and judgment

This page explains what the statute says. It isn't legal advice, and the current Illinois minimum hourly wage under Section 4 of the Minimum Wage Law — which drives the 45× floor — is set outside the Code of Civil Procedure and is not reproduced here.