Can an Independent Contractor Claim the Head of Household Garnishment Exemption?

Florida’s head of household exemption under § 222.11 is one of the strongest wage protections in the country. A qualifying debtor can exempt unlimited earnings from garnishment, regardless of income level. The exemption applies to “compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.” But whether an independent contractor receiving 1099 income can claim this exemption remains one of the most unsettled questions in Florida garnishment law.

The answer depends on how the contractor’s compensation is structured, whether the contractor controls the payment arrangement, and whether the payments qualify as “earnings” under the statute rather than business profits. Courts have reached conflicting results, and no bright-line rule has emerged.

The 1993 Amendment That Changed the Analysis

Before 1993, § 222.11 protected “money or other thing due to any person…for personal labor or service.” Courts interpreting this language consistently held that independent contractor payments fell outside the exemption because the statute contemplated an employer-employee relationship.

The Florida Supreme Court addressed the employee-contractor distinction as early as 1931 in Patten Package Co. v. Houser. The court held that the garnishment exemption did not apply to an independent contractor because the statutory language required a relationship in which labor or services were performed under another’s direction. Independent contractors, by definition, control the manner and method of their work and are not subject to the same degree of employer oversight.

In 1993, the legislature amended § 222.11 to replace the earlier language with a broader definition. The statute now defines “earnings” as “compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.” The amendment’s expanded wording was expected to clarify that the exemption could apply to income beyond traditional W-2 wages.

Why the Amendment Did Not Settle the Question

Despite the broader statutory language, courts after 1993 continued to deny the head of household exemption to many independent contractors. The central problem is distinguishing between “earnings” for personal services—which the statute protects—and business profits or distributions from an entity the debtor controls—which it does not.

A real estate agent who receives commissions from a brokerage on a 1099 basis is compensating their personal labor with a payment denominated as a commission. This scenario fits comfortably within the statutory definition. The agent performs personal services, the brokerage pays a sum certain per transaction, and the payment is denominated as a commission. Courts are more likely to extend the exemption to this type of arrangement.

The analysis becomes more difficult when the debtor owns or controls the business that pays them. A debtor who operates a single-member LLC and transfers money from the business account to a personal account is not receiving “compensation” from an independent third party. The debtor is distributing business profits. Florida courts have repeatedly held that payments a debtor makes to themselves from their own business are profit distributions, not earnings for personal services, even if the debtor characterizes the payments as salary on tax returns and pays employment taxes on them.

The Control Test

The factor that most consistently determines the outcome is the degree of control the debtor exercises over the compensation. Courts examine whether the debtor has the ability to set the amount, timing, and characterization of payments.

An employee who receives a paycheck from an employer has no control over the payment structure. The employer determines the wage rate, the pay schedule, and the tax withholding. This absence of control is what makes employee wages clearly exempt under § 222.11.

An independent contractor who invoices a client for services performed and receives payment based on a pre-agreed rate occupies a middle ground. The contractor has some control over when they invoice and how they structure their billing, but the amount paid is determined by the contract terms and the work actually performed. Courts may extend the exemption to this arrangement if the payments represent compensation for the contractor’s personal labor rather than returns on capital investment or business operations.

A business owner who unilaterally determines their own compensation from a business they control sits at the opposite end. In this scenario, the debtor can choose to pay themselves any amount at any time, characterize the payment however they wish, and adjust the compensation to minimize creditor exposure.

Courts have viewed this level of control as inconsistent with the protective purpose of the head of household exemption. The In re Branscum decision from the Middle District of Florida bankruptcy court held that monies earned by an independent contractor were not protected by § 222.11, focusing on the debtor’s control over the payment arrangement.

The “Sum Certain” Requirement

The statutory definition requires that earnings be paid “in money of a sum certain.” This language creates an additional hurdle for some independent contractors. An employee’s salary or hourly wage is inherently a sum certain—the amount is fixed by the employment agreement and is determinable before each pay period.

Independent contractor payments that are based on a fixed rate per hour, per project, or per unit of work can satisfy the sum certain requirement. If the contract specifies that the contractor will be paid $150 per hour or $5,000 per completed project, the payment amount is determinable and certain.

Business profits, by contrast, are inherently variable. The amount of money a business owner can extract from their company depends on revenue, expenses, and dozens of other factors. Distributions from a business entity are not compensation in a sum certain; they are the residual after all business obligations are met. This variability supports the conclusion that business distributions fall outside the statutory definition of earnings.

Continuing Writs Cannot Reach Independent Contractors

Even when the head of household exemption does not apply, independent contractors receive an important form of structural protection from a different statutory provision. Section 77.0305 authorizes courts to issue continuing writs of garnishment against “salary or wages” from the debtor’s “employer.” A continuing writ directs the employer to withhold a portion of each paycheck and remit it to the creditor until the judgment is satisfied.

This continuing writ mechanism cannot be used against an independent contractor’s client. The client is not an “employer,” and the payments are not “salary or wages.” A creditor who wants to garnish payments owed to an independent contractor must use a standard writ of garnishment under § 77.03, which freezes whatever the garnishee (the client) owes the debtor at the time the writ is served. This is a one-time snapshot, not a continuing obligation.

The practical significance is substantial. A wage garnishment through a continuing writ can extract 25% of an employee’s disposable earnings from every paycheck for years. A standard writ served on an independent contractor’s client captures only the amount owed at the moment of service. If the contractor has already been paid for completed work and no balance is outstanding when the writ arrives, the garnishment yields nothing.

Business Owners Paying Themselves W-2 Wages

A common strategy is for a business owner to have their entity pay them a W-2 salary rather than distributions, with the expectation that this will convert business income into exempt “earnings.” Florida courts have generally rejected this approach when the debtor controls both sides of the arrangement.

If the debtor is the sole owner, manager, and employee of an LLC, and the debtor unilaterally decides to pay themselves a W-2 salary, courts look past the form to the substance. The debtor has complete control over whether to characterize the payment as salary, the amount of the salary, and when to pay it. Several courts have held that this arrangement does not create the type of earnings that § 222.11 was designed to protect, because the debtor is effectively paying themselves from their own money.

The analysis may differ when the business has other owners, a board of directors, or independent management that determines compensation. If the debtor’s salary is set by a genuine arm’s-length process that the debtor does not control, the payments look more like traditional employee earnings. But a single-member LLC or a corporation wholly owned by the debtor cannot typically provide the independent compensation-setting process that courts require.

Current State of the Law

Florida law on the head of household exemption for independent contractors remains unsettled. The legislature broadened the statutory definition in 1993, but courts have not uniformly applied the expanded language to all 1099 income. The outcomes depend on the specific facts of each case, particularly the degree of control the debtor exercises over the compensation arrangement.

What is clear is that a debtor earning income for genuine personal services, paid by a third party at a predetermined rate, and reported on a 1099 is not automatically disqualified from claiming the head of household exemption simply because the income is classified as independent contractor income for tax purposes. The exemption analysis under § 222.11 does not track IRS worker classification rules. A debtor who is an “independent contractor” for tax purposes may still be earning “compensation for personal services” within the meaning of the garnishment exemption statute.

Debtors whose income comes exclusively from a business they own and control face a more difficult path. The combination of self-directed payments, variable amounts, and absence of an independent payor makes it harder to fit these payments within the statutory definition of exempt earnings. Asset protection planning for self-employed individuals should account for this uncertainty and consider alternative protections beyond the head of household exemption.