When a Virginia garnishee and debtor live in different counties, who has to make sure the garnishee is served first?

Plain-English summary

Albemarle County Sheriff Chan Bryant asked the AG to extend a 2003 AG opinion. The 2003 opinion held that a circuit court clerk has no duty under § 8.01-511 to ensure that, when a garnishee (typically the debtor's employer or bank) and judgment debtor are in different Virginia jurisdictions, the garnishee is served first. Sheriff Bryant's office had been trying to coordinate service order across jurisdictions but found the process unreliable, debtors were sometimes served first, collecting their paychecks, and quitting before the garnishment hit.

The AG confirmed the 2003 conclusion still applies, and extends it to two more places. First, general district court clerks have the same lack of duty as circuit court clerks. Second, sheriffs have the same lack of duty. The statute does not allocate the burden of ensuring service order; that burden falls on the judgment creditor. If a creditor is worried about service order, the creditor needs to arrange a private process server to serve the garnishee first in the garnishee's jurisdiction. The AG declined to address sheriff liability for failing to coordinate, because there is no duty to fail.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 8.01-511(A) provides that a garnishment summons "shall be served on the garnishee, and shall be served on the judgment debtor promptly after service on the garnishee." When the garnishee and debtor are in the same jurisdiction, this is administratively straightforward because the same sheriff serves both. When they are in different jurisdictions, two different sheriffs are involved and coordination becomes difficult.

The 2003 AG opinion (2003 Op. Va. Att'y Gen. 15) read § 8.01-511 narrowly. Clerks are responsible for "prepar[ing] the process and present[ing] it to the appropriate sheriff" under § 17.1-214; the statute does not impose any further duty on the clerk to coordinate service order. Sheriffs are responsible for executing service, but § 8.01-511 "does not allocate the responsibility between the persons serving process to ensure that the garnishee is served first" when more than one sheriff's office is involved.

In the absence of a statutory allocation, the burden falls where the practical interest lies: on the judgment creditor. The 2003 opinion told judgment creditors that if they want to control the order of service, they should hire a private process server to serve the garnishee first in the garnishee's jurisdiction. This 2021 opinion confirms that approach and extends it explicitly to GDC clerks and sheriffs.

Common questions

Q: I'm a Virginia judgment creditor trying to garnish wages. The employer is in Fairfax, my debtor lives in Loudoun. Will the sheriffs coordinate?
A: No. Per this 2021 opinion, neither the clerks nor the sheriffs have a duty to ensure the garnishee (employer) is served before the debtor. If service order matters to you, hire a private process server licensed to serve in the employer's jurisdiction.

Q: My debtor was served first and quit their job before the garnishment was perfected. Can I sue the sheriff?
A: The opinion says sheriffs have no duty to coordinate, so liability based on a failure to coordinate is unlikely. The opinion expressly declines to address liability because there is no duty.

Q: How do I find a private process server in Virginia?
A: The Virginia Process Servers Association and bar associations maintain lists. Make sure the server is authorized to serve process in the relevant jurisdiction (court rules differ).

Q: I'm an employer who just got served with a garnishment. Does the order of service matter to me?
A: Mostly no. As the garnishee, your duty is to answer the summons and start withholding wages from the debtor's earnings as directed. The order of service question is about the debtor's incentive to quit, not your duty.

Q: Why does the order of service even matter?
A: If the debtor is served first and learns about the garnishment before the employer has it in hand, the debtor may withdraw funds or quit. Serving the garnishee first locks the wages or account before the debtor knows about the action.

Citations and references

Statutes:

• Va. Code § 8.01-511 (Garnishment)
• Va. Code § 17.1-214 (Clerk duties)

Prior AG opinions:

• 2003 Op. Va. Att'y Gen. 15 (foundational opinion on garnishment service order)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-058-Bryant-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

March 19, 2021

The Honorable Chan R. Bryant
Albemarle County Sheriff
411 East High Street
Building B
Charlottesville, Virginia 22902

Dear Sheriff Bryant:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask two questions about the sequence of service of garnishment summons under Virginia Code § 8.01-511.

As you note, in 2003 this office concluded that, in situations where the two parties are located in different jurisdictions, § 8.01-511 does not require circuit court clerks to ensure that the garnishee is served before the judgment debtor ("2003 opinion").[1] Your first question is whether the same conclusion also applies to general district court clerks as well. Your second question involves the obligations of sheriffs, specifically whether § 8.01-511 requires sheriffs to ensure that a garnishee is served before a judgment debtor when the two parties are located in different jurisdictions.[2]

You relate that, as a result of the 2003 opinion, clerks of court are sending garnishee and judgment debtor processes separately when the parties are located in different jurisdictions. Although your office has tried to ensure that the garnishee is served first "by contacting the issuing clerk's office as well as the sheriff in the jurisdiction of the garnishee to confirm service of the garnishee[,]" you state that "[t]his has proven to be an unsuccessful and time-consuming method to validate return of service on the garnishee." You further relate that "[s]ervice out of sequence has resulted in debtors collecting their checks and quitting before the garnishment is served." As a result, you ask whether it is necessary for either a general district court clerk or a sheriff's office to ensure the proper order of service under § 8.01-511.

Applicable Law and Discussion

Section 8.01-511 of the Code of Virginia provides that a garnishment summons and its accompanying documents "shall be served on the garnishee, and shall be served on the judgment debtor promptly after service on the garnishee."[3] When the garnishee and debtor are located in the same jurisdiction, ensuring this order of service is "generally ... not an issue" because only one sheriff or other authorized party is responsible for serving both the garnishee and the debtor.[4] "Problems arise," however, "when the judgment debtor and garnishee are located in different jurisdictions. Compliance is difficult because more than one sheriff, or other authorized person, is involved in the service of process."[5]

The 2003 opinion you reference considered whether, in situations where the garnishee and the debtor are located in different jurisdictions, § 8.01-511 requires a circuit court clerk to coordinate service between two sheriffs to ensure that the garnishee is served first. The 2003 opinion concluded that no such mandatory duty exists, observing that the statutory responsibilities of a circuit court clerk in this context "are limited to prepar[ing] the process and present[ing] it to the appropriate sheriff, or other authorized person" and that a clerk is not responsible for service of process.[6] Accordingly, the 2003 opinion concluded that § 8.01-511 does not require a circuit court clerk to "alter the manner in which process is issued" to ensure that a garnishee is served before a debtor.[7] In my opinion, this conclusion remains valid, and applies equally to general district court clerks as to circuit court clerks.

The analysis in the 2003 opinion, however, was not specifically limited to clerks of court. The opinion also noted that while sheriffs are responsible for executing service of process, § 8.01-511 "does not allocate the responsibility between the persons serving process to ensure that the garnishee is served first" when more than one sheriff's office is involved.[8] Because the statute does not allocate the burden of ensuring the garnishee is served first in these types of situations, the 2003 opinion concluded that the burden of ensuring the correct order of service falls on the judgment creditor rather than the sheriff.[9] As the opinion states: "If a judgment debtor and garnishee are located in separate jurisdictions and the creditor is concerned that the judgment debtor may be served before the garnishee, it is incumbent upon such creditor to protect himself and adopt steps to ensure the proper order of service. In [such a] situation, a judgment creditor should arrange for a private process server to serve the garnishee first."[10]

In my opinion, the conclusion in the 2003 opinion that a sheriff is not required to ensure that the garnishee is served before the debtor when the parties are located in different jurisdictions remains valid. The conclusion that the burden of ensuring the correct order of service in such situations lies with the judgment creditor likewise remains valid.

Conclusion

For the foregoing reasons, it is my opinion that the conclusion in the 2003 opinion that a circuit court clerk is not required under § 8.01-511 to ensure that a garnishee is served before a judgment debtor when the two parties are located in different jurisdictions remains valid. This conclusion would also apply equally to general district court clerks.

Additionally, it is my opinion that a sheriff is not required under § 8.01-511 to ensure that a garnishee is served before the debtor when the parties are located in different jurisdictions. Accordingly, a judgment creditor who is concerned that the debtor may be served before the garnishee, should ensure the proper order of service by arranging for a private process server to serve the garnishee first.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. 2003 Op. Va. Att'y Gen. 15.
2. You also ask whether a sheriff would be liable for failure to ensure that a garnishee is served before the judgment debtor, when the two parties are located in different jurisdictions. For the reasons explained below in this opinion, it is unnecessary for me to address this inquiry. See infra, footnote 9 and accompanying text.
3. VA. CODE ANN. § 8.01-511(A) (current through the 2020 Special Session I of the General Assembly).
4. 2003 Op. Va. Att'y Gen. at 17.
5. Id.
6. Id.; see also VA. CODE ANN. § 17.1-214.
7. 2003 Op. Va. Att'y Gen. at 17.
8. Id.
9. Because a sheriff is not required to ensure that a garnishee is served before a debtor when the two parties are located in different jurisdictions, it is unnecessary for me to address your inquiry about whether a sheriff would be liable for failure to do so.
10. 2003 Op. Va. Att'y Gen. at 17.