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2011 SESSION
11103972DBe it enacted by the General Assembly of Virginia:
1. That §§ 8.01-512.4, 34-1, 34-3, 34-3.1, 34-4, 34-4.1, 34-4.2, 34-13, 34-14, 34-17, 34-21, 34-24, 34-26 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Chapter 1 of Title 34 a section numbered 34-3.2 as follows:
§ 8.01-512.4. Notice of exemptions from garnishment and lien.
No summons in garnishment shall be issued or served, nor shall any notice of lien be served on a financial institution pursuant to § 8.01-502.1, unless a notice of exemptions and claim for exemption form are attached. The notice shall contain the following statement:
NOTICE TO JUDGMENT DEBTOR
HOW TO CLAIM EXEMPTIONS FROM GARNISHMENT AND LIEN
The attached Summons in Garnishment or Notice of Lien has been issued on
request of a creditor who holds a judgment against you. The Summons may
cause your property or wages to be held or taken to pay the judgment.
The law provides that certain property and wages cannot be taken in
garnishment. Such property is said to be exempted. A summary of some of the
major exemptions is set forth in the request for hearing form. There is no
exemption solely because you are having difficulty paying your debts.
If you claim an exemption, you should (i) fill out the claim for exemption
form and (ii) deliver or mail the form to the clerk's office of this court.
You have a right to a hearing within seven business days from the date you
file your claim with the court. If the creditor is asking that your wages be
withheld, the method of computing the amount of wages which are exempt from
garnishment by law is indicated on the Summons in Garnishment attached. You
do not need to file a claim for exemption to receive this exemption, but if
you believe the wrong amount is being withheld you may file a claim for
exemption.
On the day of the hearing you should come to court ready to explain why
your property is exempted, and you should bring any documents which may
help you prove your case. If you do not come to court at the designated
time and prove that your property is exempt, you may lose some of your
rights.
It may be helpful to you to seek the advice of an attorney in this matter.
REQUEST FOR HEARING-GARNISHMENT/LIEN EXEMPTION CLAIM
I claim that the exemption(s) from garnishment or lien which are checked
below apply in this case:
MAJOR EXEMPTIONS UNDER FEDERAL AND STATE LAW
. . . . 1. Social Security benefits and Supplemental Security Income (SSI)
(42 U.S.C. § 407).
. . . . 2. Veterans' benefits (38 U.S.C. § 3101).
. . . . 3. Federal civil service retirement benefits (5 U.S.C. § 8346).
. . . . 4. Annuities to survivors of federal judges (28 U.S.C. § 376(n)).
. . . . 5. Longshoremen and Harborworkers Compensation Act (33 U.S.C.
§ 916).
. . . . 6. Black lung benefits.
Exemptions listed under 1 through 6 above may not be applicable in child
support and alimony cases (42 U.S.C. § 659).
. . . . 7. Seaman's, master's or fisherman's wages, except for child
support or spousal support and maintenance (46 U.S.C. § 1109).
. . . . 8. Unemployment compensation benefits (§ 60.2-600, Code of
Virginia). This exemption may not be applicable in child support cases
(§ 60.2-608, Code of Virginia).
. . . . 9. Portions or amounts of wages subject to garnishment (§ 34-29,
Code of Virginia).
. . . . 10. Public assistance payments (§ 63.2-506, Code of Virginia).
. . . . 11. Homestead exemption of $5,000, or $10,000 if the debtor is
65 years of age or older, in cash (§34-434-13, Code of Virginia). This
exemption may not be available in certain cases, such as payment of rent
or services of a laborer or mechanic (§ 34-5, Code of Virginia).
. . . . 12. Property of disabled veterans - additional $10,000 cash
(§ 34-4.1, Code of Virginia).
. . . . 13. Workers' Compensation benefits (§ 65.2-531, Code of Virginia).
. . . . 14. Growing crops (§ 8.01-489, Code of Virginia).
. . . . 15. Benefits from group life insurance policies (§ 38.2-3339,
Code of Virginia).
. . . . 16. Proceeds from industrial sick benefits insurance (§ 38.2-3549,
Code of Virginia).
. . . . 17. Assignments of certain salary and wages (§ 55-165, Code of
Virginia).
. . . . 18. Benefits for victims of crime (§ 19.2-368.12, Code of Virginia).
. . . . 19. Preneed funeral trusts (§ 54.1-2823, Code of Virginia).
. . . . 20. Certain retirement benefits (§ 34-34, Code of Virginia).
. . . . 21. Child support payments (§ 20-108.1, Code of Virginia).
. . . . 22. Support for dependent minor children (§ 34-4.2, Code of
Virginia). To claim this exemption, the debtor shall attach to the claim
for exemption form an affidavit that complies with the requirements of
subsection B of § 34-4.2 and two items of proof showing that the debtor
is entitled to this exemption.
. . . . 23. Other (describe exemption): $ ............
I request a court hearing to decide the validity of my claim. Notice of the
hearing should be given me at:
.................... ....................
(address) (telephone no.)
The statements made in this request are true to the best of my knowledge
and belief.
.................... ....................
(date)(date)(signature of judgment debtor)
§ 34-1. Definitions.
As used in this title, unless the context requires a different meaning:
"Creditor process" means all methods used by creditors to collect unsecured debts.
"Debt" means a legally enforceable monetary obligation or liability of any individual whether arising out of a contract or otherwise, but not an obligation resulting from an intentional tort.
"Dependent" means an individual who derives support primarily from the householder and who does not have assets sufficient to support himself, but in no case shall an individual be the dependent of more than one householder.
"Exempt" means protected from all forms of creditor process.
"Exemption" means protection from all forms of creditor process.
"Homestead" means real or personal property used as the principal residence by the householder or a dependent of the householder.
"Homestead exemption" means that exemption created by § 34-4.
"Householder" means any resident of Virginia.
"Laboring person" means any person who receives wages for his services.
§ 34-3. Articles not exempt from taxes or levies or for their purchase price.
The exemptions under §§ 34-4, 34-4.1, 34-13, 34-26, 34-27, 34-29, and 64.1-151.3 shall not extend to distress or lien for state or local taxes or levies, nor to levy, distress, or lien for the purchase price of any articles claimed as exempt or any part of the price thereof nor for fines and damages or either arising from trespass by animals under § 55-306 as to such animal so trespassing. If an article purchased and not paid for is exchanged or converted into other property of the debtor, such property shall not be exempt from payment of the unpaid purchase money debt.
§ 34-3.1. Alternative exemptions.
No Notwithstanding any other provision of law, an individual
may exempt from the property of the estate in
any bankruptcy proceeding either the property permitted to be
exempted (i) as specified in subsection (d) of 11 U.S.C. § 522 of the Bankruptcy Reform Act (Public Law 95-598), except as may otherwise be expressly permitted under, or (ii) as specified in this
title.
§ 34-3.2. Automatic adjustment of exemptions.
Beginning July 1, 2013, the dollar amount of the exemptions provided in §§ 34-4, 34-13, and 34-26 shall be adjusted triennially, rounded to the nearest $25, based on the increases in the United States Average Consumer Price Index for all urban consumers (CPI-U) for the South Region as published by the Bureau of Labor Statistics of the U.S. Department of Labor.
§ 34-4. Exemption created.
Every householder shall be entitled, in addition to the
property or estate exempt under §§ 23-38.81, 34-13,
34-26, 34-27, 34-29, and 64.1-151.3, to hold exempt from creditor process
arising out of a debt, real and or personal property, or either, to be selected by that the householder, including money and debts due or a dependent of the
householder claims as a homestead
not exceeding $5,000 $25,000 in value or, if the
householder is 65 years of age or older, not exceeding $10,000 $35,000
in value. In addition, upon a showing that a householder
supports dependents, the householder shall be entitled to hold exempt from
creditor process real and personal property, or either, selected by the
householder, including money or monetary obligations or liabilities due the
householder, not exceeding $500 in value for each dependent.
For the purposes of
this section, "dependent" means an individual who derives support
primarily from the householder and who does not have assets sufficient to
support himself, but in no case shall an individual be the dependent of more
than one householder.
§ 34-4.1. Additional exemption for certain veterans.
Every veteran residing in this Commonwealth having a service
connected disability of forty 40 percent or more, as rated by
the Veterans Administration of the United States, shall be entitled, in
addition to the property or estate which he is entitled to hold exempt from
creditor process under §§ 34-4, 34-13,
34-26, 34-27, 34-29, and 64.1-151.3, to hold exempt from creditor process his
real and personal property, or either, to be selected by him by the writings
required by §§ 34-6 and 34-14, including money and debts due him, not exceeding
$ 10,000 in value.
§ 34-4.2. Additional exemption for parents of dependent children.
A. Where a parent supports a dependent minor child or children residing with him, that parent can hold exempt from wage garnishment, in addition to the property or estate that he is entitled to hold exempt from creditor process under §§ 20-108.1, 34-4, 34-4.1, 34-13, 34-26, 34-27, 34-29, and 64.1-151.3, an additional amount for the support of the child or children as follows: $34 per week for one child; $52 per week for two children; and $66 per week for three or more children. This additional wage exemption amount shall not be available to a parent whose household gross income, including any support payments for children living in the home, exceeds $1,750 per month. For purposes of this section, "household gross income" means all income from all sources, and shall include, but not be limited to, salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, child support, spousal support, rental income, gifts, prizes or awards paid to any adult living in the household or to the dependent child.
B. To claim this wage exemption, the parent shall attach to the claim for exemption form set forth in § 8.01-512.4 an affidavit and two items of proof showing that the debtor is entitled to this additional wage exemption. The affidavit shall contain the following statement:
AFFIDAVIT CONCERNING DEPENDENT CHILDREN
AND HOUSEHOLD INCOME
Having been duly sworn, I, . . . . . . . . . . ., depose and state the
following to be true, accurate and complete:
1. I support . . . . . . (number) dependent children, whose names and ages
are as follows. For each child I have included the amount of monthly child
support I receive (including voluntary support payments and payments made
pursuant to a court or administrative order), and, if the child is employed
or has other income, the amount of the child's gross monthly income. (If you
receive no support for the child and the child has no income, insert zero.)
Full legal name of child Age Child's gross monthly support and income
........................ ..... ....................
........................ ..... ....................
........................ ..... ....................
........................ ..... ....................
(attach additional pages if necessary)
2. My personal gross monthly income, not including any of the above amounts,
is $. . . . . . . .
3. The following are the names and gross monthly incomes of all people who
reside with me in the same house, apartment or other dwelling, other than
the above-named dependent minor child or children. (If the household
resident has no income, insert zero.)
Full legal name of household residents Gross monthly income
...................................... ....................
...................................... ....................
...................................... ....................
...................................... ....................
(attach additional pages if necessary)
4. I swear or affirm that no person other than the above-named individuals
resides with me and that I reside with no person other than the above-named
individuals.
. . . . . . . . . . . . (signature of debtor)
. . . . . . . . . . . . (date)
Commonwealth of Virginia:
City/County of . . . . . . . . . . ., to wit:
Subscribed and sworn to before me, the undersigned Notary Public, this . .
. . . . . day of . . . . . . (month), . . . . . .. (year)
Notary Public: . . . . . . . . . . ..
My commission expires: . . . . . . . . . . ..
§ 34-13. Householder may set apart exemption in real or personal estate.
If the Every householder does not set apart any real estate as before
provided, or if what he does or has so set apart is not of the total value
which he is entitled to hold exempt, he may, in addition to the property or
estate which he is shall be
entitled to hold, in
addition to the property or estate exempt under §§ 23-38.81, 34-4, 34-26, 34-27,
34-29, and 64.1-151.3, in the first case
select and set apart by the writing required by § 34-14 to be held by him as
exempt under §§ 34-4 and 34-4.1, so much of his personal estate as shall not
exceed the total value which he is entitled to hold exempt and, in the latter case, personal estate, the
value of which, when added to the value of the real estate set apart, does not
exceed such total value from creditor process arising out of a debt, real or personal property, or
either, other than that described in § 34-4, to be selected by the householder,
including money and debts due the householder not exceeding $5,000 in value or,
if the householder is 65 years of age or older, not exceeding $10,000 in value. In addition, upon a showing that a householder
supports dependents, the householder shall be entitled to hold exempt from
creditor process real and personal property, or either, selected by the
householder, including money or monetary obligations or liabilities due the
householder, not exceeding $500 in value for each dependent.
§ 34-14. How set apart in personal estate; form to claim exemption of personal property.
Such personal estate selected by the householder and
under §§ 34-4, 34-4.1, or §
34-13 shall be set apart in a writing signed by him. He shall, in the writing,
designate and describe with reasonable certainty the personal estate so
selected and set apart and each parcel or article, affixing to each his cash
valuation thereof. Such writing shall be admitted to record, to be recorded as
deeds are recorded in the county or city wherein such householder resides. However, if such personal estate is claimed exempt
in a petition filed under Title 11 of the United States Code, the official form
admitted to record in the United States Bankruptcy Court claiming such
exemptions shall be sufficient to set apart such property as exempt.
The following form, or one which is substantially similar, shall be used and shall be sufficient, when duly admitted to record in the county or city in which the householder resides, to exempt such described personal property from creditor process:
HOMESTEAD DEED FOR PERSONAL PROPERTY
Name of Householder ...................................................
Is the householder a disabled veteran entitled to claim the additional
exemption under § 34-4.1? .............................................
Address of Householder ................................................
Name(s) and age(s) of dependent(s) ....................................
County/city in which householder resides .......................
Description of property claimed as exempt and its value ...............
........................................................................
Number of homestead deeds that have been filed by the Householder
........................................................................
Exemption amount previously claimed on prior homestead deeds
........................................................................
List the jurisdictions where previous homestead deeds were filed
........................................................................
.................... ..............................
.................... (Signature of Householder)
[ACKNOWLEDGMENT]
Such writing or deed shall not be required to secure any
exemption under this Code except those exemptions created by §§ 34-4, 34-4.1 and 34-13.
§ 34-17. When exemption may be set apart; garnished wages.
A. The real or personal estate which that
a householder is entitled to hold as exempt may be set apart at any time before
it is subjected by sale under creditor process, or, if such creditor process
does not require sale of the property, before it is turned over to the
creditor. To claim an exemption in bankruptcy, a householder
who (i) files a voluntary petition in bankruptcy or (ii) against whom an
involuntary petition in bankruptcy is filed shall set such real or personal
property apart on or before the fifth day after the date of the meeting held
pursuant to 11 U.S.C. § 341, but not thereafter. A householder who converts a
case from Chapters 11, 12, or 13 to Chapter 7 shall set such real or personal
property apart on or before the fifth day after the date of the meeting held
pursuant to 11 U.S.C. § 341 in the Chapter 7 case, but not thereafter. Nothing
in this section shall affect the right of the trustee in bankruptcy, with the
approval of the court, to proceed immediately with the sale or other
disposition of personal property which the trustee determines
to be perishable or particularly susceptible to price deterioration.
B. A claim of homestead
exemption to protect garnished wages may be filed by the debtor after the
garnishment summons is served on the employer but prior to or upon the return
date of the garnishment summons and shall be considered by the garnishing
court.
§ 34-21. When householder's right to exemption is exhausted.
When the maximum amount of property, whether real or personal,
or both, has been once set apart to be held by a householder as exempt under §
34-4 or §,
34-4.1, or 34-13, he shall not
afterwards be entitled to the exemption of any estate other than that so set
apart or as otherwise provided by law for a period of seven
years from the time the householder last claimed the exemption.
§ 34-24. When the exemption ceases; lien of judgment or decree against householder.
When any person, entitled as a householder to the exemption provided for in § 34-4 or 34-13, ceases to be a householder or when any person removes from this Commonwealth, his right to claim or hold any estate as exempt under the provisions of this chapter, shall cease; but the lien of a judgment, or decree for money, rendered against a householder, and which is not paramount to the exemption provided for in this chapter, shall, as to the real estate held as exempt by him, attach to such only of that estate as he may be possessed of or entitled to at the time the exemption thereof ceases, as aforesaid, and until that time the lien shall not be enforced. Such judgments shall attach in the order of their priority, respectively, subject to the provisions of Article 5.1 (§ 64.1-151.1 et seq.) of Chapter 6 of Title 64.1.
§ 34-26. Poor debtor's exemption; exempt articles enumerated.
In addition to the exemptions provided in Chapter 2 (§ 34-4 et seq.) of this title, every householder shall be entitled to hold exempt from creditor process the following enumerated items:
1. The family Bible.
1a. Wedding and engagement rings.
2. Family portraits and family heirlooms not to exceed $5,000 in value.
3. (i) A lot in a burial ground, and (ii) any preneed funeral contract not to exceed $5,000.
4. All wearing apparel of the householder not to exceed $1,000 in value.
4a. All household goods and
furnishings including, but not limited to, beds, dressers, floor coverings,
stoves, refrigerators, washing machines, dryers, sewing machines, pots and pans
for cooking, plates, and
eating utensils, books and music
regardless of format, and personal electronics not to
exceed $5,000 in value.
5. All animals owned as pets, such as cats, dogs, birds, squirrels, rabbits and other pets not kept or raised for sale or profit.
6. Medically prescribed health aids.
7. Tools, books, instruments, implements, equipment, and machines, including motor vehicles, vessels, and aircraft, which are necessary for use in the course of the householder's occupation or trade not exceeding $10,000 in value, except that a perfected security interest on such personal property shall have priority over the claim of exemption under this section. A motor vehicle, vessel or aircraft used to commute to and from a place of occupation or trade and not otherwise necessary for use in the course of such occupation or trade shall not be exempt under this subdivision. "Occupation," as used in this subdivision, includes enrollment in any public or private elementary, secondary, or career and technical education school or institution of higher education.
8. A motor vehicle, not held as exempt under subdivision 7,
owned by the householder, not to exceed $2,000 $7,500 in value, except that a
perfected security interest on the motor vehicle shall have priority over the
claim of exemption under this subdivision.
9. One firearm per householder for household use.
10. School books of the householder.
11. Personal effects and furniture that are exclusively used by a dependent who is a minor, disabled, or 65 years of age or older.
12. Educational materials and educational equipment that are used by a dependent who is a minor.
13. Payments pursuant to the federal child tax credit under 26 U.S.C. § 24, as amended, and the federal earned income credit under 26 U.S.C. § 32, as amended.
The value of an item claimed as exempt under this section shall be the fair market value of the item less any prior security interest.
The monetary limits, where provided, are applicable to the total value of property claimed as exempt under that subdivision.
The purchase of an item claimed as exempt under this section with nonexempt property in contemplation of bankruptcy or creditor process shall not be deemed to be in fraud of creditors.
No officer or other person shall levy or distrain upon, or attach, such articles, or otherwise seek to subject such articles to any lien or process. It shall not be required that a householder designate any property exempt under this section in a deed in order to secure such exemption.