A former client had a judgment entered against him in a New York. The debtor/client lived and worked in Florida. He supported his wife. His employer had offices in Florida and New York, and it paid the client from the Florida office where the client was employed. The creditor caused the New York court to issue a writ of wage garnishment, and it served a writ of garnishment against the employer at its New York office.
Florida statutes state that a judgment creditor cannot garnish earnings of a Florida resident that is head of household. New York has no such garnishment exemption. The client wants to know how he asserts his head of household exemption against the New York garnishment. How do Florida residents assert their property exemptions in courts outside of Florida.
There is little law on this issue in Florida and elsewhere. Most courts that have addressed this issue held that a debtor’s exemptions of personal property are determined by the law of the state where the judgment is issued and enforced and not where the debtor resides. This case is an example. Assets located in Florida, including Florida homestead and other real property, is subject only to Florida exemption law. Both the asset and the judgment must be outside Florida for the application of the forum state’s exemptions.
Therefore, if a creditor obtains a New York judgment and finds debtor property in New York the debtor’s rights and protections are based upon New York law. The debtor can assert exemptions of personal property if the creditor domesticates the judgment in Florida and proceeds to enforce the domesticated Florida judgment.
Be aware that Florida exemptions do not protect your personal property against judgments in other states. A creditor with a foreign judgment could, for example, attempt to levy upon your retirement accounts or you tenants by entireties accounts unless these assets are located inside the state of Florida.
This is not a frequent problem because most Florida residents are sued in Florida courts because their creditors cannot establish personal jurisdiction over them in any other state. Those people doing business outside Florida are subjecting themselves and many of their assets to the law of other states.
Last updated on May 22, 2020