Free Initial Phone Consultations
Chapter 7 starting at $999, plus filing fees and costs.
Chapter 13 starting at $2,500, plus filing fees and costs.
What is a garnishment?
Garnishment is a major collection weapon of unsecured creditors. Through this legal process a creditor may reach the debtor’s property in the hands of a third-party, such as money in a debtor’s bank account or make the debtor’s employer withhold a portion of the debtor’s wages toward payment of the debt. Most creditors must first sue and obtain a judgment against a debtor before they can garnish the debtor’s bank account or wages. Under Florida Statute §77.01, any tangible or intangible personal property of the judgment debtor in possession or control of a third person may be subject to garnishment. This includes present and future earnings, bank accounts, notes, mortgages, rents, accounts receivables. In Florida, service of the writ of garnishment creates a lien on the debtor’s property held or controlled by the third party and it remains in effect until the garnishment judgment is satisfied or the writ is dissolved.
How is garnishment obtained?
In Florida, a writ of garnishment can be obtained by the judgment creditor without prior notice to the judgment debtor. Under Florida Statute §77.03, after obtaining a judgment, the judgment creditor can simply file a motion with the court and get the writ of garnishment issued without a hearing. The creditor must give notice to the debtor only within five business days after the writ is issued or within three business days after the writ of served on the garnishee (the employer or the bank). The notice must be provided to the last-known address of the debtor by first-class claim. So, writs of garnishment hit debtors by surprise. Usually, they learn of the garnishment of their wages or bank account from their employer or bank upon service of the writ.
How to stop garnishment and/or return the garnished property?
Assuming that the writ of garnishment was properly obtained, there are several ways to stop garnishment and/or return the garnished property or reduce the garnishment amount.
The notice the debtor receives from the creditor, called “Notice to Debtor”, contains a form for the judgment debtor to complete to claim any exemptions from garnishment. The judgment debtor must complete, sign, and notarize the form within 20 days from receipt and mail it to the court and serve copies on the judgment creditor and garnishee. The creditor must file an objection within 8 days if the notice was hand delivered, or 14 days if it was served by mail. If the creditor files a timely objection disputing the debtor’s claims of exemption, the court will schedule a hearing to determine the validity of the exemptions. If the creditor does not file a timely objection, the writ will be automatically dissolved, and the garnishment will cease. If the debtor prevails at the hearing, the writ may be dissolved, the garnished property may be returned, or the garnishment may be reduced.
The judgment debtor may workout a monthly payment arrangement with the judgment creditor to terminate the garnishment. The creditor may be amenable to settle the debt if the debtor is insolvent and bankruptcy may be inevitable if the garnishment is not resolved.
Finally, to stop the garnishment immediately, the judgment debtor may file for bankruptcy. The bankruptcy automatic stay prohibits the judgment creditor from continuing the garnishment, with some exceptions. Although bankruptcy filing may stop the garnishment, it does not automatically result in dissolution of the writ or release of the garnished funds because the writ of garnishment creates a lien on debtor’s property. To discharge the lien created by the writ and return the garnished property, the lien must be avoided by the trustee or the debtor in bankruptcy. To avoid the lien, the debtor must establish a right to an exemption in the garnished wages or property. Depending on the amount of the garnished property, it may not be economically worthwhile to purse lien avoidance to return the funds due to attorney fees and costs involved in obtaining such remedy. If bankruptcy discharge discharges the judgment creditor’s claim, the garnishment may not be enforced after bankruptcy.
What exemptions can debtor assert to stop garnishment and/or return garnished property?
Debtor can use various exemptions under Florida law to protect their property from execution by creditors. The Notice to Defendant Debtor will receive from the judgment creditor contains a list of income exempt from garnishment, such as head of family wages, social security benefits, supplemental security income benefits, public assistance (welfare) benefits, workers’ compensation, reemployment or unemployment compensation, veteran’s benefits, retirement or profit-sharing benefits or pension money, life insurance benefits or cash surrender value of a life insurance policy or proceeds of annuity contract, disability income benefits, prepaid college trust fund or medical savings account.
In addition to certain income exemptions, under Florida Constitution, debtor can claim a homestead exemption for any equity in the home as well as the $1,000 personal property exemption, which can be applied to any property of the debtor up to $1,000. Under Chapter 222 of Florida Statutes provides, debtor can claim exemptions for debtor’s equity interest up to $5,000 in a single motor vehicle or a debtor’s interest in an income tax credit refund received or to be received, or the traceable deposits in a financial institution of a debtor’s interest in the income tax credit refund, pursuant to Section 32 of the IRS code. If the debtor does not claim or receive the benefits of the homestead exemption, the debtor may claim a “wild card’ exemption, which protects debtor’s interest in personal property up to $4,000.
Under Florida case law, debtors can claim exemption for property owned by two married persons as tenants by the entirety if the judgment debt is for a debt of only one spouse. To hold property as tenants by the entireties, two married persons must have acquired an indivisible interest to the property jointly during marriage at the same time. Debtors can prove that the property is held as tenancy by the entirety by providing a record title of ownership for real estate, motor vehicles, boats, etc. For joint bank accounts, debtors can provide the signature cards or other bank documents opening the account indicating that the account is owned as tenancy by the entirety. In regard to property for which there is no record title ownership, such as property within the debtor’s household, there is a presumption of joint ownership. The creditor may contest the presumption, for example, if property was acquired before marriage.
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, or after tax earnings, above $750 are also fully exempt unless an individual agrees otherwise in writing. Earnings of a non-head of family are 75% exempt. The head of the household exemption does not apply to a garnishment proceeding to enforce child support, unless the past-due child support has been reduced to a final money judgment.
In addition to Florida’s exemption for head of family wages, federal statutes limit the amount that may be garnished from wages to 25% of the person’s after tax earnings per week or the amount by which the the after tax earnings for that week exceed 30 times the federal minimum wage ($7.25 per hour as of January 1, 2025), whichever is less. 15 U.S. Code § 1673. For wage garnishment for court-ordered child support or state or federal taxes, the garnishment is limited to 50% if the debtor is supporting another spouse or child or 60% if the debtor is not supporting another spouse of child. Unlike the Florida’s exemption for head of family wages, the federal wage garnishment limitation applies to all wage earners regardless of the head of family status.
Can you waive the head of family 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 family 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 family 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.
How can you protect your property from wage garnishment in Florida?
With proper planning, debtors may be able to protect their property from garnishment in Florida. First of all, for debtors who are not married, earnings should be deposited into a separate account and not commingled with any other funds, such as exempt funds from social security, disability benefits, workers’ compensation benefits, etc. To qualify for the head of family exemption, 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?
Married individuals may open joint bank accounts with a tenancy by the entirety designation if they wish to protect their joint bank funds from creditors of an individual debtor. When opening such a bank account, make sure there is a clear designation in the account opening documents that the account is held as tenants y the entirety (not tenants in common!). The designation may also appear in the name of the account. If a bank representative tells you that their bank does not offer that form of ownership, speak to a manager, or go to a different bank.
When acquiring property for which there is a record title of ownership, such as real property and vehicles, the tenancy by the entirety ownership may be indicated by married individuals by use of the words “and,” rather than “or” or “and/or.” Pursuant to Florida Statute §319.22(2), for the “and” ownership, signature of both owners is required to sell a motor vehicle. This creates an indivisible interest, so a creditor of one owner will not be able to levy on such property. Under the same statute, if a motor vehicle is registered in the names of two individuals joined by words “or” or “and/or,” either one can sell the vehicle without consent or signature of the other. Since either owner can sell such vehicle without the consent of the other, creditors of an individual owner may levy on such property as well.
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 help you protect your property from garnishment, stop the garnishment, reduce the garnishment amount and/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.