Many callers who have read my website discussions of wage garnishment have learned that Florida law prohibits the garnishment of wages earned by a debtor who is head of household. Many people mistakenly believe the wage garnishment exemption for head of household debtors is automatic.
They think that a court will not issue a writ of garnishment directed at the employer of the head of household debtor, or they think that the creditor will quickly dissolve the wage garnishment when the debtor informs the creditor of the debtor’s head of household status. It’s not that simple.
A creditor may serve a writ of garnishment
upon your employer whether or not you support your family. And upon receipt of the writ, your employer is legally required to freeze your paycheck. If you believe you are head of household you must assert your exemption and possibly prove your right to protection in court.
There are two basic ways to use head of household status to defend a wage garnishment. First, once the writ is served on your employer and your wages frozen you will receive from the creditor a claim of exemption form. You may designate on the form that you are head of household. You mail the claim of exemption to the creditor and file a copy with the court. The creditor is not obligated to dissolve the wage garnishment just because you claim head of household, although some creditor attorneys will dissolve the writ if you can show them directly that you are head of household. If the creditor does not dissolve the writ voluntarily- and many do not- then you have to wait for the court to set a hearing on your exemption. You must attend the hearing and submit proof including your own testimony and documents such as tax returns to sustain the objection.
A quicker and more aggressive way to asset head of household is to immediately file a motion on motions to dissolve garnishment writs with the court to dissolve the garnishment. The statutes (77.041) provide that debtor’s are entitled to a hearing “as soon as possible” to consider debtor exemptions. A debtor reasonably can provide the creditor less than one week’s notice to schedule a hearing, but the hearing time must be coordinated with the judge’s schedule and with the creditor’s attorney. Debtors should hire an attorney to file a motion to dissolve a wage garnishment if they want a quick hearing. An attorney will also best explain the debtor’s grounds for exemption and produce the necessary evidence to support the head of household garnishment exemption.
Last updated on May 22, 2020