How do you dissolve a Florida writ of garnishment?
A creditor can serve a writ of wage garnishment on a debtor’s employer regardless of whether the debtor’s wages are exempt from garnishment. An employer can, and should, freeze wages upon being served with the writ. An employer is not liable for withholding wage payments that are later determined to be exempt from garnishment. The employer can withhold up to 25% of the debtor’s “take home” pay net of income tax and other mandatory deductions.
When a debtor discovers that his exempt wages have been garnished the first step is to file a motion with the issuing court a motion to dissolve the writ of garnishment on the grounds that the debtor is head of household. The motion should trigger the court to schedule a hearing on the exemption and garnishment. Complaining to the employer will not dissolve the writ, so it does not help the debtor to convince that employer the debtor is head of household.
After filing a motion with the court to start the hearing process, the debtor’s attorney can directly contact the attorney for the creditor and offer evidence that the debtor is head of household. Evidence can include the debtor’s federal tax returns that indicates that he has child dependents and that the debtor is the family’s principal wage earner. If this evidence clearly shows that the debtor’s wages are exempt most, but not all, creditor attorneys will voluntarily dismiss the wage garnishment writ. The attorney will file a dismissal with the court, the court will issues an order dissolving the garnishment, and once the employer receives the dismissal order the employer should resume paying the debtor his normal salary as well as give to the debtor any funds that were previously withheld. The debtor is not entitled to any interest on money withheld.
Some creditor attorneys or their clients are more aggressive, and they may insist that the debtor go to a court hearing to dissolve the garnishment regardless of evidence first presented. A hearing gives the creditor an opportunity to challenge the initial evidence and pursue other evidence of financial support of the family from sources other than the debtor’s garnished wages.
The debtor’s wages will remain garnished until the time of the court hearing. The debtor and his attorney will present evidence at the hearing substantiating that the debtor is “head of household.” The creditor may present its evidence contesting the exemption. Assuming the court orders that the debtor’s salary or wages are exempt, then that order would direct the garnishee employer to stop withholding salary and to forward to the debtor any funds already withheld.
In sum, just because a debtor is head of household and his wages are exempt from garnishment does not mean that he will not be subject to garnishment by a judgment creditor or that he may have to hire an attorney to prove his exemption before a judge. The debtor’s experience depends upon whether the creditor voluntarily dismisses the garnishment of exempt wages or whether dismissal must be pursued through a court hearing.
Last updated on October 8, 2020