Suppose a person is subject to a relatively small money judgment owed to a credit card company. In this example, the judgment debtor receives monthly child support payments from her ex-husband. She accumulates the child support money in a separate bank account. She wants to know whether the deposited child support money is exempt from a bank account garnishment initiated by the judgment creditor.
This is a simple question with a complicated and uncertain answer. Under Florida law, the bank account funds are exempt from garnishment if the funds are traceable to a statutory or common law exemption. Several Florida court decisions have held that exempt assets retain their protection after being invested in a financial account. If child support payments are exempt, then by the same token the funds in the debtor’s account would be exempt.
Treatment Under Florida Exemption Statutes
Florida exemptions are expressed mostly in Chapter 222 of the Florida Statutes. There is no statutory exemption for child support funds.
In addition, the Florida garnishment statute provides that all garnished debtors be provided with a Claim of Exemption form on which they may assert that garnished funds are exempt for any of several reasons stated on the Form. Exemptions on the Form include head of household wages, social security, retirement money, and others. There is no listed exemption for child support.
Florida’s treatment of bankruptcy laws may provide a solution. Section 522(d)(10) of the Bankruptcy Code exempts from creditors and the bankruptcy trustee any funds reasonably necessary for the support of the debtor or their dependents. This section has been interpreted to cover the debtor’s child support funds.
Treatment in Bankruptcy
Florida has opted out of federal bankruptcy exemptions, so generally, the Bankruptcy Code exemptions are not applicable to Florida debtors. However, Florida statutes give Florida residents who file bankruptcy the ability to assert the exemptions listed in section 522(d)(10), regardless of the general “opt-out.” However, this section does not let Florida debtors assert the section 522(d)(10) exemptions, including child support, if the debtor is not in bankruptcy.
Consider the argument that child support payments are due to and are assets of the dependent child rather than property of the debtor. The problem with this position is that family law does not restrict expenditures of child support money received by the custodial spouse.
The woman in the above example may legally spend child support money on her own personal expenses, personal luxuries, or payment of other debts. The money is considered part of her discretionary funds and not money held in trust for the child.
Still, I believe that courts would hold that the money my client has received for child support and which she holds in a personal bank account is exempt. However, I am unable to find any statutory authority for the exemption.
Florida courts have exempted from creditors alimony and support payable to an ex-spouse on the basis of public policy. Courts probably would extend the same protection to child support. Permitting a parent’s creditors to garnish child support is inconsistent with the strong policy and broad equitable powers of judicial enforcement that ensure payments of funds appropriate to support a dependent child after divorce.
I do not believe a creditor will successfully garnish a child support payment either before it is paid or after it is received and deposited in the bank.
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