Florida Statutes provide an exemption from garnishment of earnings payable to a head of household whether denominated as wages, salary, commission, or bonus. For a debtor to qualify as a head of household, he must provide more than half of the financial support for another person to whom he has either a legal or moral obligation of support. The supported person may be a child or an adult, and the supported person need not reside in the debtor’s homestead.
A debtor may waive his head-of-household exemption from a Florida wage garnishment. Waivers must be in a separate document attached to the debt agreement, must be presented in at least 14 point font, and must describe the wage garnishment exemption. Florida Statutes include a typical head-of-household waiver provision. Many creditors will attempt to include written waivers in their stack of credit documents and too may borrowers unknowingly waive their wage garnishment exemptions by signing these forms.
Waivers only partially expose earnings to wage garnishment. A head-of-household debtor who waives exemption still may protect up to $750 per week in net earnings. In other words, a Florida head of household’s earnings up to $750 are exempt whether or not he waived head-of-household protection.
There is no established procedure for debtors to claim or assert head-of-household exemption in advance of a wage garnishment being issued. Filing a declaration of head of household in a court proceeding will not preclude a creditor from obtaining a writ of wage garnishment. The proper procedure is for the garnished debtor to assert a head-of-household exemption in response to the judgment creditor’s wage garnishment writ being served upon the employer. The garnished debtor can either file a claim of exemption with the court that issued the writ, or the debtor can file a motion to dissolve the wage garnishment and assert the exemption in the motion.
Self-employed debtors have had difficulty claiming a head-of-household exemption for wage garnishment. When a judgment debtor is his own employer and controls the amount and timing of payments, many courts have ruled that payments from the debtor’s own company do not constitute “earnings” within the wage garnishment statutory exemption. In many such cases, the courts noted that the debtor’s company paid the debtor varying amounts of “salary” using different pay periods based upon the businesses profitability and there was no written employment agreement that expressed earnings amounts actually paid. Self-employed debtors should consult an experienced attorney in order to protect compensation from wage garnishment.
If you’ve been served with a writ of garnishment and want advice on how to handle it, give us a call to schedule an appointment.