Applying an attachment of earnings order to obtain maintenance payment following a divorce

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Modèle de demande de convocation à l'audience par le saisissant (French, Word, 22 Kb)
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The divorce decree states in most cases that one of the two spouses must pay maintenance to the other, the amount of which may vary depending on the circumstances of the case.

In practice, it is often the case that the maintenance debtor, i.e. the spouse who has to pay maintenance to the other, suddenly stops paying the monthly amounts.

The law provides for a special two-stage procedure to recover unpaid amounts: the attachment of earnings order.

The justice of the peace may, by order, authorise a creditor to withhold the salary of the employee who owes maintenance. The employer must deduct a predefined amount from the employee's salary in order to pay it to the creditor (the spouse who is to receive maintenance payments).

Who is concerned

There are 3 parties involved in the attachment of earnings procedure, namely:

  • the distrainer, i.e. the divorced spouse who has been awarded maintenance/support in the divorce judgment and who initiates the attachment of earnings procedure;
  • the distrainee, i.e. the other divorced spouse who has been ordered by divorce decree to pay maintenance but who no longer makes this payment, and on whose salary the attachment of earnings is made;
  • the third-party distrainee, i.e. the intermediary who enacts the attachment of earnings, that is, the distrainee's employer.

Prerequisites

An attachment of earnings may be applied to any remuneration paid to a person who works for one or more employers, regardless of the amount and nature of their remuneration, the form and nature of their contract or their status.

The following can be attached:

  • salaries and amounts due as remuneration;
  • salaries and allowances of civil servants and public employees;
  • pensions and annuities arising from social security legislation, excluding the end-of-year allowance;
  • full unemployment benefits;
  • sickness and maternity benefits.

How to proceed

Procedure for the attachment of earnings

Filing an application for the attachment of earnings

The attachment of earnings order makes it possible to block, in the hands of the employer, a portion of the debtor's (employee's) salary in order to allow for the repayment of the debt.

This procedure does not require the help of a lawyer and the files tend to be processed reasonably quickly.

The creditor who is owed maintenance can lodge a petition for an attachment of earnings with the justice of the peace, by means of an application on plain paper accompanied by supporting documents and an updated statement of accounts.

In the application, the claimant must specify:

  • the amount of the maintenance arrears (payments already due until the application for attachment of earnings is made);
  • the current amount of the maintenance payment, i.e. the monthly amount due as a maintenance payment (in order to be able to apply the attachment to the amounts not yet due at the time of the application);
  • if interests are claimed and if so, the amount or amounts on which interest is calculated.

Refusal of the attachment of earnings

The judge can only refuse an attachment order after having summoned the parties before him.

Within 8 days of the application for attachment of earnings, the judge may summon the distrainer (creditor) and the distrainee (debtor) (both spouses) to a hearing to discuss the merits of the case and find a possible settlement.

If the judge refuses to grant the attachment of earnings, they will notify the refusal by registered letter to the distrainer.

In this case, the distrainer can lodge an appeal against this decision. The appeal must:

  • be made within 15 days of the notification of the refusal;
  • by way of petition to the district court.

Authorisation of the attachment of earnings

If the justice of the peace authorises the attachment, they will notify the third-party distrainee (employer) by registered letter of a certified copy of the order authorising the attachment. The order validates the attachment of earnings.

The distrainee (employee) and the distrainer (creditor) are informed by registered letter that the attachment order has been notified to the employer.

The authorising order specifies the sum that applies for which the attachment has been granted and the amount of the current payment, if one has been requested.

Conservatory phase of the attachment of earnings

During the so-called conservatory phase, i.e. the phase between the notification of the authorisation of the attachment to the employer and the judgment validating the attachment, the employer must:

  • within 8 days of receiving notification of the authorisation to proceed with the attachment, provide the court with:
    • either an affirmative declaration, confirming to the magistrate that the person in question is indeed an employee of theirs, and stating:
      • the net monthly remuneration of the employee concerned;
      • any attachment of earnings already in progress;
    • or a negative declaration, specifying the date when the person in question left their employ. If the employer does not make a declaration or makes a false declaration, they may be held by the court as the debtor of the unpaid attachments and ordered to pay them to the distrainer;
  • provisionally deduct the legally attached amount from the employee's net salary;
  • retain these deductions pending the judgment validating the attachment.

Judgment of validation, nullity or release of the attachment

In order to enable the employer to pay the amounts due to the spouse owed maintenance, the judge must issue a decision validating the attachment.

If the authorisation was issued on the basis of an enforcement order which has the force of res judicata (divorce judgment awarding maintenance to one of the spouses), produced by the distrainer, the latter may petition the court to validate the attachment order.

Please note: if the debtor has lodged a challenge against the order authorising the attachment, validation cannot be requested.

The challenge must be lodged:

  • within one month of the notification of the authorisation order;
  • by letter addressed to the court clerk.

The parties are summoned to a hearing within 15 days of the introduction of the challenge by the distrainee to discuss the merits of the challenges . The time between the summons and the hearing is 8 days.

Following this hearing, the judge will rule on the validity, nullity or release of the attachment.

In the absence of a challenge by the distrainee (debtor), the judge will grant the distrainer's request (creditor) and validate the attachment order.

The judgment is notified to the parties by the court clerk.

Enforcement phase

After the judgment validating the attachment is handed down, i.e. when the judge has confirmed that the employee owes the requested amounts, the employer must:

  • continue to withhold statutory attachments and current payments, if requested, from the employee's salary; and
  • pay them to the distrainer until the maintenance debt is paid in full.

Calculating the attachable share of a salary

The current maintenance payments are deducted from the unattachable portion of the debtor's salary (see bracket 1 in the table below).

The maintenance arrears are deducted from the attachable portion of the debtor's salary.

The attachable portion of a salary is determined on the basis of net monthly earnings broken down into 5 earnings brackets that are set by Grand Ducal regulation. For each earnings bracket, an attachable portion is defined by law as shown in the table below:

Earnings bracket

Monthly limits per bracket

Attachable portion

1

up to and including EUR 850

unattachable

2

from EUR 850.01 to EUR 1,300 (inclusive)

10 %

3

from EUR 1,300.01 to EUR 1,600 (inclusive)

20%

4

from EUR 1,600.01 to EUR 2,600 (inclusive)

25 %

5

from EUR 2,600.01

unlimited

Example: an attachment of EUR 4,000 must be made on a net monthly salary of EUR 3,000.

In order to determine the monthly amount that can be attached, the different brackets into which the net monthly earnings fall must first be determined. Once determined, the attachable amount is calculated as follows:

Bracket 1: no earnings can be attached

Bracket 2: (1,300 – 850.01) x 10 % = EUR 45

Bracket 3: (1,600 – 1,300.01) x 20 % = EUR 60

Bracket 4: (2,600 – 1,600.01) x 25 % = EUR 250

Bracket 5: (3,000 – 2,600.01) = EUR 400

Based on the different earnings brackets, the monthly amount that can be deducted is 45 + 60 + 250 + 400 = EUR 755.

This amount will be deducted each month from the employee's salary until the debt is repaid in full.

When several attachment of earnings orders have been made on the same salary, the justice of the peace determines the seizable amounts in proportion to the amounts owed.

Some debts can be recovered by seizing the amount due on the unattachable portion of salaries. More particularly, this is the case for child maintenance payments that are owed for the month in question.

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Modèle de demande de convocation à l'audience par le saisissant

Last update 18.10.2023

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