It is easier for debtor’s to assert head of household exemption from wage garnishment after a ruling by a Florida court. I read about this decision on the Florida Collection Law Blog edited by Jorge Abril. Mr. Abril’s blog post explains that under Florida statutes once a debtor asserts that his wages are exempt from garnishment because he is head of household a creditor has only two days to file with the court an affidavit denying the exemption. In the past, the creditor’s attorney would sign the affidavit on behalf of his client.
The appellate court said that the creditor attorney may not submit the denial affidavit on behalf of the creditor. The affidavit must be signed by the creditor. Mr. Abril writes that, “As a practical matter, given the strict time constraints for filing the sworn denial – 2 days – the requirements imposed by this case will make it difficult for the attorney who represents a hard to reach client to defeat a claim of head of household exemption regardless of the claim’s merit.”
From the debtor’s prospective a debtor may be able to defeat a wage garnishment simply by submitting an affidavit of head of household. Another practical matter: the debtor’s attorney should not advise his client to submit a head of household affidavit the attorney knows, or has reason to suspect, is not true. The debtor attorney should do nothing more than inform his client of the laws and the applicable procedures.
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