Wage Garnishment Exemption Asserted By Both Spouses: Can There Be Two Heads Of Household In One Family?

A husband and his wife are jointly liable on a real estate bank loan and could not afford to continue payments. After they stopped making monthly payments the bank  sued both spouses to collect the full loan balance. Both spouses worked and were concerned that the bank would garnish their wages after getting a judgment.

In Florida, a judgment creditor cannot garnish wages of a debtor who is head of household. In a traditional family setting only one spouse can be head of household where there are minor children. The general rule is that the higher earning spouse provides the majority of support for the children and is head of household, and the lesser earning spouse is vulnerable to wage garnishment. In this particular case, both spouses thought they were head of household in their family.

The facts in this case were unusual. Theirs was a second marriage. Each spouse had children from a prior marriage. Because they worked at jobs in different Florida  cities each spouse lived in their own house  with one or more of their own children. Each spouse supported their respective children in their homes. Each spouse owned their own home individually. Each spouse contended that they should be head of household and exempt from wage garnishment. Can there be two heads of household, exempt from wage garnishment, in the same family?

I think that each spouse should be able to exempt their own wages from garnishment in this situation. Florida law is that to be exempt from wage garnishment the debtor must be the primary source of financial support for someone to whom he has a legal or moral obligation. The exemption statute does not limit the qualifying heads of household in one family. Florida courts have held that two spouses living in separately owned and occupied homes each can claim their own home as their exempt homestead provided that each spouse actually uses in their own home as their primary residence. Similarly, I think two spouses can be head of household if they each serve as the primary source of financial support for a different qualifying dependent.

About the Author

Jon Alper is an expert in asset protection planning for individuals and small businesses.

Jon Alper

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