What is a garnishment?
A garnishment is a legal process through which a creditor may take money in a debtor’s bank account or withhold a portion of the debtor’s wages toward payment of a debt. Most creditors must first sue and obtain a judgment against a debtor before they can garnish the debtor’s bank account or wages.
How much of my wages can be garnished in Florida?
Florida Statute §222.11 exempts from garnishment the earnings of a head of family that are less than or equal to $750 a week. Disposable earnings above $750 are also fully exempt unless an individual agrees otherwise in writing. Earnings of a non-head of family are 75% exempt.
Disposable earnings are defined as gross earnings minus deductions for amounts required by law to be withheld (e.g., federal withholding taxes and social security withholdings).
The head of the household exemption does not apply to a garnishment proceedings to enforce child support, unless the past-due child support has been reduced to a final money judgment.
What is an effective waiver of the head of the household exemption?
For a waiver of the exemption to be effective, it has to be in writing and it must specifically waive the head of family exemption. Creditors often incorporate such language in their credit applications, promissory notes, leases, contracts, or settlement agreements.
Does the Florida head of the household exemption apply to money in a bank account?
Money in a bank account that comes from wages of the head of the household is also exempt from garnishment for six months after its deposit as long as the funds can be traced and properly identified as earnings.
Many debtors do not maintain a separate bank account in which they deposit only exempt earnings to separate the exempt deposits from all other sources of funds. Although such comingling of earnings with other funds does not by itself destroy the exemption, it creates problems in tracing earnings.
Who qualifies as the head of the household in Florida?
A head of the household is defined as any natural person who is providing more than one-half of the support for a child or other dependent (the head of the household must make more than twice as much as the dependent). To qualify as a head of the household a person must be a Florida resident at the time of wage garnishment. Although a person does not need to reside with a dependent, the person must have a legal obligation to support the dependent, such as in cases of court ordered child support or alimony.
For example, a parent providing more than 50% of the support for an adult child attending college, infirm parents or other blood relatives, or adult children incapacitated by physical or mental disabilities may be able to qualify for the head of the household exemption.
Generally, a marital or blood relationship is required to create a legal obligation for support. However, Florida courts have also recognized a legal duty to support in cases of a continuing communal living by at least two persons with one person recognized as being in charge.
Who qualifies as a dependent in Florida?
To qualify as a dependent for purposes of the wage garnishment statute, a person’s income must be insufficient to sustain him or her without the support of the person claiming him or her as a dependent. In other words, if a claimed dependent is able to sustain himself or herself financially and would not be a charge of the public or an object of charity without the person claiming him or her as a dependent, that person may not qualify as a dependent.
Can you prevent a wage garnishment in Florida?
With proper planning, debtors may be able to prevent wage garnishment in Florida. First of all, earnings should be deposited into a separate account and not commingled with any other funds. The earnings should be for personal services and those services should not be performed as an independent contractor. See What forms of “earnings” are exempt from garnishment in Florida?
How can we help?
If you are facing a wage garnishment in Florida or if your wages are already being garnished, we may be able to prevent or stop the garnishment, reduce the garnishment amount or recover all or a portion of the garnished funds. If the funds were wrongfully garnished, we may be able to return the garnished funds and make the creditor pay the statutory damages of $1,000 under Fair Debt Collection Practices Act, as well reimbursement of the additional expenses, such as attorney fees and costs, in recovering the wrongfully garnished funds. Call us now for a free phone consultation. (386) 248-3000.