How to Not Pay a Judgment by Using Asset Protection Strategies
If a creditor has filed a civil lawsuit against you—or has already gotten a judgment—you may be wondering how you can avoid paying the judgment or what happens if you can’t afford to pay the judgment.
Believe it or not, you do not have to proactively pay a judgment. There is no law that requires you to affirmatively pay a judgment. In other words, it is not a crime and you cannot go to jail for refusing to write a check to the judgment creditor.
Instead, the law gives creditors various tools to collect on their judgment. Asset protection is about recognizing these tools, evaluating their effectiveness and drawbacks, and then structuring your assets and income in a way to make it difficult for these tools to work.
Using proper asset protection strategies in advance of any creditor issue can sometimes result in effectively not having to pay a judgment at all. However, most people only begin protecting their assets after a legal issue has arisen—but even in these cases proper asset protection planning can still make it more difficult for a creditor to collect on its judgment.
Florida asset protection strategies can help shield assets from potential judgment creditors. A subset of estate planning, asset protection planning and techniques are based upon each person’s particular facts and legal situation. To avoid having to pay a judgment to creditors in Florida, you can use the following strategies:
- Risk Mitigation
- Appropriate Insurance
- Florida Homestead
- Tenants by Entireties
- Limited Liability Companies
- Head of Household Exemption
- Financial Products
- Offshore Planning
- Estate Planning
- Domestic Bank Accounts
Do not expose multiple family members to joint legal liability. Marriage provides strong asset protection tools to protect either spouse against individual creditors but not against joint creditors of both spouses. Married people should not expose themselves to joint liability. Married couples should not agree with any lender to have both spouses co-sign loan documents including notes and note guarantees.
Some aspects of life unavoidably exposes married people to joint debt. An example is car ownership. Florida law imposes liability on the owner and the negligent driver in any accident. The best asset protection strategy is to handle potential liability from car or boat ownership is maintaining substantial liability insurance with umbrella coverage. Uninsured motorist coverage will pay the insured if he is the victim of negligence by an underinsured driver.
Professional liability insurance is important for professionals, such as doctors, accountants, and attorneys. Professional insurance policies are available for:
- Malpractice insurance (for attorneys and doctors)
- Fiduciary coverage to insure a breach of fiduciary duty.
- Personal disability income insurance
- Business non-owned and hired automobile insurance
- Leasing insurance (whether a tenant or landlord)
- D&O coverage
- Business worker’s compensation insurance
- Business interruption insurance
These types of insurance can cover your losses and pay for legal defense if the insured party is sued. Ample insurance will pay the injured party and avoid a lawsuit that threatens the insured party’s personal assets.. A plaintiff who accepts your insurance company’s payment releases the insured and the insurance company from further claims and damages.
The best-known Florida asset protection strategy is the Florida homestead. The Florida Constitution protects a debtor’s primary residence from levy and execution to collect a debt. There are no value limits on homestead protection. However, there are exceptions to homestead protection based upon the size of the homestead or the nature of the judgment debt.
To qualify for Florida homestead protection, the debtor must establish three things:
- That the debtor intends the property to be his permanent and primary residence.
- That the home is situated on a lot that is less than 1/2 acre in a municipality or less than 120 acres outside a municipality.
- That the debtor has all or part of the property’s legal title either in his individual name or as beneficiary of a revocable trust.
The Florida homestead is sometimes less effective if the debtor files for bankruptcy . Particularly, bankruptcy law states that the homestead exemption is limited to approximately $160,000 (2020) if acquired within 1215 days prior to the debtor’s bankruptcy filing, unless the homestead was acquired by a family farmer, or the interest in the homestead was purchased with proceeds from a previously owned homestead. Married couples filing bankruptcy jointly can each claim a homestead exemption.
Tenants By Entireties
Florida law considers jointly owned marital assets acquired during a marriage to be owned as “tenants by the entireties.” Entireties assets exempt from the creditors of either spouse individually, but they are not exempt from joint creditors of both spouses.. Joint marital ownership as tenants by entireties is a simple and efficient asset protection tool for married couples against their individual debts.
Tenants by entireties protection applies to both real and personal property. In theory, property that is owned as tenants by the entireties is owned by one person, and neither spouse can sever the property without the other spouse’s consent. Because neither spouse acting alone can voluntarily transfer or encumber entireties property, a creditor of only one spouse cannot force the non-debtor spouse to involuntarily transfer or encumber an entireties asset.
Tenants by entireties protection may not extend to IRS debt and certain other federal debts. Also, entireties protection may not protect a married couple from their liability for negligence in operating vehicles and boats.
Limited Liability Companies
Chapter 605 of the Florida Statutes governs the creation and operation of limited liability companies. Using LLCs as a Florida asset protection vehicle is a common part of business owners’ asset protection plans, and LLCs, rather than corporations, are used to form most small businesses. One reason is that LLCs are better than corporations for the individual owner’s asset protection. A judgment creditor may levy upon a judgment debtor’s stock in a corporation. When the debtor is the sole stockholder, the creditor after levy can control the cash and other assets held by the business. On the other hand, the debtor’s membership interests in multi-member limited liability companies is generally not subject to levy or foreclosure. The creditor is limited to a charging lien on the LLC’s distributions of cash or property, if any, to the debtor member
LLCs are supposed to have an operating agreement that express the terms and conditions applicable to the LLC members. A properly drafted LLC operating agreement includes provisions that support asset protection. For example, the operating agreement can restrict the transfer of membership interests to creditors of any one member and other third parties as well as prevent a creditor from participating in LLC business or voting. An LLC operating agreement can set limitations and conditions on distributions to members’ creditors and can impose on creditors an obligation to contribute money or services to the LLC.
Head of Household Exemption
Salary and wages are debts owed to employees. In Florida, a wage garnishment is the legal remedy that a creditor uses to collect salary or wages that are owed to the judgment debtor. A creditor can file a Motion for a Continuing Writ of Garnishment that will garnish wages perpetually until the judgment is paid or employment ceases. Federal law limits wage garnishments to 25% of the debtor’s wages.
Florida law protects salary and wages payable to a debtor who is head of household.
Generally, a head of household is a person that provides more than 1/2 support for a dependent, though there are exceptions. A creditor may not garnish wages payable to a debtor who is head of household. There are important exceptions applicable to business owners or government creditors.
Florida asset protection strategies often involve financial products that are exempt under Florida law. Annuities of any variety and cash value life insurance are exempt from creditors, and these products enable a debtor to invest in marketable securities through an asset protected conduit.
Florida law protects a debtor’s annuities and the proceeds from an annuity. A debtor should segregate exempt annuity proceeds in a separate bank account. This way, the debtor can clearly show that his proceeds came from an exempt annuity contract rather than a non-exempt source.
Another asset protection financial product is cash value life insurance. Florida law protects the cash value of a debtor’s life insurance contract insuring the debtor’s own life. An added benefit of cash value life insurance policies is that insurance death benefits are not subject to probate after the debtor’s death.. However, if the beneficiary has creditors, the beneficiary must protect the life insurance death benefit proceeds from his own creditors.
Some debtors move their financial assets offshore and beyond U.S. court jurisdiction by creating foreign limited liability companies or trusts with foreign managers and trustees.
Many attorneys and financial professionals publish books and websites to promote offshore asset protection tools. These publicly marketed offshore programs are often complicated and expensive. But just because an asset protection program is expensive does not mean it is effective, and offshore asset protection is usually not the best asset protection technique for a Florida debtor. Because of Florida’s debtor-friendly laws, most Florida residents can protect assets without resorting to offshore planning. That said, offshore planning may be appropriate for Florida debtors in some situations where Florida law exemptions are insufficient.
Typical estate planning includes legal entities that protect assets from the potential creditors of the heirs or trust beneficiaries. Assets left to children outright pass title through formal judicial probate, and the creditor of any heir could levy on the heir’s share of the probate estate. A better estate planning strategy is to leave assets in a testamentary spendthrift trust for the benefit of the next generation. A beneficiary’s creditors cannot reach assets left to them in a properly drafted testamentary trust.
Some people create irrevocable trusts for their children and transfer assets to the trust during their lifetime estate planning. Trusts are used as estate planning tools to ensure sufficient money to pay for children’s education. After transfer to a trustee, the assets are protected from the trustmaker parents’ creditors because the parents no longer own the assets. However, lifetime transfers to an irrevocable trust are subject to creditor allegations that the trust and transfers were reversible fraudulent transfers made to avoid or hinder the parents’ creditors.
Domestic Bank Accounts
Most judgment creditors will attempt to garnish a debtor’s bank accounts. A writ of garnishment served on the debtor’s bank is an efficient tool to force payment of a judgment. Some debtor bank accounts contain money that is exempt from garnishment such as exempt wages, social security or disability payments, or annuity proceeds. A creditor may still legally garnish a bank account holding exempt funds, and it is the debtor’s burden to convince a court that all or part of the garnishment money is exempt from creditors.
Debtors should take steps in advance to avoid their bank accounts being garnished after a judgment. An effective asset protection strategy is a bank located within the United States that is not subject to writs of garnishment. There are state laws that prohibit garnishment of accounts at certain types of banks. These banks offer FDIC insured accounts with typical online access and banking features.
What to Do Next
We advise clients on developing and implementing an asset protection plan to protect their hard-earned assets from civil creditors. Contact us to get started.
Last updated on August 30, 2020