2020 Georgia Code
Title 18 - Debtor and Creditor
Chapter 4 - Garnishment Proceedings
Article 1 - General Provisions
§ 18-4-6. Exemption From Garnishment

1. 1. Certain earnings or property of the defendant may be exempt from the process of garnishment.
   2. Funds or benefits from an individual retirement account or from a pension or retirement program shall be exempt from the process of garnishment until paid or otherwise distributed to a member of such program or beneficiary thereof. Such funds or benefits, when paid or otherwise distributed to such member or beneficiary, shall be exempt from the process of garnishment only to the extent of the limitations provided in Code Section 18-4-5 for other disposable earnings, unless a greater exemption is otherwise provided by law.
   3. Funds in an unfunded plan maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees shall not be exempt from the process of garnishment.
   4. Exempt property shall not be considered disposable earnings for purposes of Code Section 18-4-5 or subsection (b) of Code Section 18-4-53.
2. Not later than May 22, 2016, the Attorney General shall create and maintain on the Department of Law's website a list of exemptions that a defendant may be allowed by law to claim in relation to a garnishment of his or her earnings or property. The Attorney General shall revise such list when exemptions are repealed, revised, or created by law. The Attorney General shall transmit a copy of such list to each clerk of court in this state who issues summonses of garnishment and transmit a revised list when a change is made to such list.
3. Each clerk of court in this state who issues summonses of garnishment shall post and update such list of exemptions as promulgated by the Attorney General and shall provide such list to individuals upon request.
4. A defendant may claim an exemption as provided in Code Section 18-4-15.
5. The fact that an exemption is not identified by the Attorney General shall not preclude a defendant from claiming an exemption.

(Code 1981, §18-4-6, enacted by Ga. L. 2016, p. 8, § 1/SB 255.)

- Pursuant to Code Section 28-9-5, in 2016, "May 22, 2016" was substituted for "ten days after the effective date of this Code section" in the first sentence of subsection (b).

- For article, "Retirement Benefits: Protection from Creditors' Claims," see 24 Ga. St. B.J. 118 (1988). For note reviewing Georgia's new garnishment procedures, see 17 Ga. St. B.J. 140 (1981). For note on 1990 amendment of this Code section, see 7 Ga. St. U. L. Rev. 265 (1990).

JUDICIAL DECISIONS

Pension funds exempt, not individual pension payments.

- Law exempted from garnishment all pension funds for policemen and municipal employees, irrespective of their source or intended beneficiaries, but it is the funds, rather than the individual pension payments, that are exempt from garnishment. Cooper v. City of Atlanta Policemen's Pension Fund, 147 Ga. App. 633, 249 S.E.2d 684 (1978).

- O.C.G.A. § 18-4-22 means that funds or benefits from a pension or retirement program are exempt from the process of garnishment until such funds or benefits are in the hands of the member or beneficiary of the program. Davis v. Davis, 161 Ga. App. 722, 288 S.E.2d 748 (1982).

- Debtor's Individual Retirement Account (IRA) would be excluded from the bankruptcy estate under 11 U.S.C. § 541(c)(2) on the basis of the restriction on transfer by garnishment contained in subsection (a) of O.C.G.A. § 18-4-22, notwithstanding that the transfer restriction was contained only in the Georgia statute and was not contained within the IRA document itself and notwithstanding that the debtor had access to the IRA funds for personal use upon payment of a 10% penalty tax. Meehan v. Wallace, 102 F.3d 1209 (11th Cir. 1997).

- Twenty-five percent of the defendant ERISA beneficiary's benefit payment was subject to garnishment by the defendant judgment creditor under a continuing garnishment pursuant to O.C.G.A. § 18-4-22(a) because the ERISA Plan was a Top Hat Plan, which was not subject to the ERISA anti-alienation provision, 29 U.S.C. § 1056. AFLAC Inc. v. Diaz-Verson, F. Supp. 2d (M.D. Ga. May 25, 2012).

- Retirement benefits paid into registry of trial court by garnishee were not subject to garnishment because the defendant had never received actual possession of the benefits. Birchfield v. Birchfield, 165 Ga. App. 101, 299 S.E.2d 409 (1983).

- Federal law preempts O.C.G.A. § 18-4-22 and mandates a finding that individual retirement accounts possessed by the garnishees are exempt from garnishment by commercial creditors in a nonbankruptcy situation. Citizens Bank v. Shingler, 173 Ga. App. 511, 326 S.E.2d 861 (1985) (decided prior to 1990 amendment specifically exempting individual retirement account funds or benefits).

Chapter 7 debtor's Roth individual retirement account (IRA) was not excluded from the property of the estate because O.C.G.A. § 18-4-22(a) applied only to an IRA within the meaning of 26 U.S.C. § 408 and Georgia law provided no similar protection for a Roth IRA established under 26 U.S.C. § 408A. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

- O.C.G.A. § 44-13-100 specifically addresses what types of annuities and similar contracts are exempt in bankruptcy cases. Therefore, the debtor's attempt to exempt the annuity under O.C.G.A. §§ 18-4-22 and 47-2-332 would have failed even if the annuity met the requirements of those statutes (which appeared not to be the case in any event). In re Sheffield, 507 Bankr. 400 (Bankr. S.D. Ga. 2014).

- In a garnishment action, the defendant was not entitled to exempt from garnishment the amount of wages the defendant was supposed to pay for child support because O.C.G.A. § 18-4-6 does not specifically exempt child support obligations from garnishment and the court rejected the defendant's argument that a judgment against the defendant for unpaid child support took priority over the plaintiff's judgment. Smith v. Robinson, 355 Ga. App. 159, 842 S.E.2d 917 (2020).

Cited in Goddard v. Boozer, 160 Ga. App. 303, 287 S.E.2d 308 (1981).

RESEARCH REFERENCES

ALR.

- Who is "employee" within debt exemption statute, 58 A.L.R. 777.

Debtor's exemption (other than homestead) as applicable in favor of nonresidents or of residents absent or about to remove from the state, 119 A.L.R. 554.

Employee retirement pension benefits as exempt from garnishment, attachment, levy, execution, or similar proceedings, 93 A.L.R.3d 711.

Enforcement of claim for alimony or support, or for attorneys' fees and costs incurred in connection therewith, against exemptions, 52 A.L.R. 5th 221.

Individual retirement accounts as exempt property in bankruptcy, 133 A.L.R. Fed. 1.