2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-7 - Garnishment; exemptions.

A. Exempt from garnishment with respect to the enforcement of an order or decree for child support is fifty percent of the defendant's disposable earnings for any pay period. Exempt from garnishment in all other situations is the greater of the following portions of the defendant's disposable earnings:
(1) seventy-five percent of the defendant's disposable earnings for any pay period; or
(2) an amount each week equal to forty times the highest applicable minimum hourly wage rate at the place the wages were earned. The director of the financial institutions division of the regulation and licensing department shall provide a table giving equivalent exemptions for pay periods of other than one week.
B. As used in this section:
(1) "disposable earnings" means that part of a defendant's wage or salary remaining after deducting the amounts that are required by law to be withheld; and
(2) "highest applicable minimum hourly wage rate" means the highest federal, state or local minimum hourly wage rate for an eight-hour day and a forty-hour week applicable at the time the wages are payable. However, it is immaterial whether the garnishee is exempt under federal, state or local law from paying the highest applicable minimum hourly wage rate.
C. The maximum amount that may be taken from a spouse's disposable earnings under both the garnishment procedure and the wage deduction procedure for the enforcement of child support is fifty percent of the spouse's disposable earnings.
D. Amounts exempt under this section shall retain their exempt status when deposited into a personal bank account, provided that they are reasonably traceable.
History:
1953 Comp., § 36-14-7, enacted by Laws 1969, ch. 139, § 6; 1978 Comp., § 35-12-7; 1979, ch. 254, § 1; 2023, ch. 104, § 2.
ANNOTATIONS
Repeals and reenactments.
— Laws 1968, ch. 62, § 171, repealed former 36-14-7, 1953 Comp., relating to penalties of justices under peace bond provisions, effective January 1, 1969, and Laws 1968, ch. 62, § 139, enacted a new 36-14-7, 1953 Comp., relating to garnishment exemptions. Laws 1969, ch. 139, § 6, repealed 36-14-7, 1953 Comp., relating to garnishment exemptions, and enacted a new section.
The 2023 amendment,
effective July 1, 2023, changed an income exemption amount from forty times the federal minimum hourly wage rate to forty times the highest applicable minimum hourly wage rate, defined "highest applicable minimum hourly wage rate", and provided that amounts exempt under this section shall retain their exempt status when deposited into a personal bank account; in Subsection A, Paragraph A(2), after "forty times the", deleted "federal" and added "highest applicable", and after "minimum hourly wage rate", added "the place the wages were earned"; in Subsection B, Paragraph B(2), deleted "federal" and added "highest applicable", after "highest federal", added "state or local", after "forty-hour week", added "applicable at the time the wages are payable", after "under federal", added "state or local", and after "paying the", deleted "federal" and added "highest applicable"; and added Subsection D.
Applicability.
— Laws 2023, ch. 104, § 13 provided that the provisions of Laws 2023, ch. 104 apply to actions filed on or after July 1, 2023.
Wage garnishment exemption applies only to wages or salary due from judgment debtor's employer to judgment debtor and does not apply to wages or salary once paid to the judgment debtor.
— Where debtors filed a voluntary petition under Chapter 7 of the Bankruptcy Code and elected to claim exemptions under New Mexico law and, in addition to claiming exemptions under 42-10-1 to 42-10-13 NMSA 1978, debtors claimed an exemption under the New Mexico wage garnishment statute, 35-12-7 NMSA 1978, for funds in their bank accounts, and where the Chapter 7 trustee objected to the exemption claimed under the garnishment statute, asserting that the garnishment statute was inapplicable for use by a debtor in bankruptcy to claim an exemption in otherwise non-exempt assets, the trustee's objection was sustained because the wage garnishment exemption contained in the statute applies only to wages or salary due from the employer to the judgment debtor and does not apply to wages or salary once paid to the judgment debtor. Once wages or salary are paid and deposited into a debtor's bank account, a debtor must rely on the general exemption statutes to protect such funds.
In re Johnson
, 593 B.R. 331 (Bankr. D. N.M. 2018).
Cross references.
— For applicability of exemptions under 42-10-1 NMSA 1978,
see
35-4-2 NMSA 1978.
For exemption of retirement funds and benefits for public officers and employees,
see
10-11-135 NMSA 1978.
For acknowledgements for wage and salary assignments,
see
14-13-11 NMSA 1978.
For welfare benefits,
see
27-2-21 NMSA 1978.
For exemption of state police pension fund interest and benefits,
see
29-4-10 NMSA 1978.
For executions not to go against lands,
see
39-4-2 NMSA 1978.
For inapplicability of homestead exemption,
see
42-10-11 NMSA 1978.
For unemployment compensation benefits,
see
51-1-37 NMSA 1978.
For workers' compensation benefits,
see
52-1-52 NMSA 1978.
For occupational disease benefits,
see
52-3-37 NMSA 1978.
For minimum membership holdings in cooperative associations,
see
53-4-28 NMSA 1978.
For assets of insurance companies undergoing delinquency proceedings,
see
59A-41-23 NMSA 1978.
For benefit payments by fraternal benefit societies,
see
59A-44-18 NMSA 1978.
For the minimum wage provisions of the federal Fair Labor Standards Act,
see
29 U.S.C. § 206.
For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts,
see
Rules 1-065.2, 2-802, and 3-802 NMRA, respectively.
For form for claim of exemptions on executions,
see
Rule 4-803 NMRA.
For form for order on claim of exemption and order to pay in execution proceedings,
see
Rule 4-804 NMRA.
For form for application for writ of garnishment and affidavit,
see
Rule 4-805 NMRA.
For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA.
For form for claim of exemption from garnishment,
see
Rule 4-809 NMRA.
Law reviews.
— For comment, "Attachment and Garnishment - Prejudgment Garnishment - Study and Proposed Revisions," see 9 Nat. Resources J. 119 (1969).
For note, "Municipal Assumption of Tort Liability for Damage Caused by Police Officers," see 1 N.M. L. Rev. 263 (1971).
For comment, "Wage Garnishment in New Mexico - Existing Debtor Protection under Federal and State Law and Further Proposals," see 1 N.M. L. Rev. 388 (1971).
For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M. L. Rev. 1 (1974).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 33, 176 to 183; 31 Am. Jur. 2d Exemptions §§ 1, 35 to 41, 43 to 49, 51 to 53, 55, 56.
Money or other property taken from prisoner as subject to garnishment, 16 A.L.R. 378, 154 A.L.R. 758.
Garnishment of salaries, wages or commissions not expressly exempted by statute, 56 A.L.R. 601.
Exemption of nonresident from garnishment as impairing obligations of existing contracts, 93 A.L.R. 185.
Judgment in garnishment proceedings, effect, as between garnishee and principal defendant, of disclosure or failure to disclose exemptions, 166 A.L.R. 304.
Funds deposited in court as subject of garnishment, 1 A.L.R.3d 936.
Family allowance from decedent's estate as exempt from attachment, garnishment, execution and foreclosure, 27 A.L.R.3d 863.
Effect of anti-alienation provisions of Employee Retirement Income Security Act (29 USCS § 1056(d)) (ERISA) on rights of judgment creditors, 131 A.L.R. Fed. 427.
35 C.J.S. Exemptions §§ 1, 47 to 51; 38 C.J.S. Garnishment § 199 et seq.; 51 C.J.S. Justices of the Peace § 78.