How to Stop a Wage Garnishment in Florida
A Florida wage garnishment is a legal creditor collection tool that allows a judgment holder to intercept a portion of money owed to the judgment debtor by the debtor’s employer. Often the wage garnishment is called a Continuing Writ of Garnishment Against Salary or Wages. In Florida, creditors use wage garnishments to collect debts owed by third parties to a judgment debtor.
To stop a wage garnishment in Florida, a judgment debtor should in most cases take the following steps:
- Review the writ of garnishment to check for any procedural mistakes.
- File a Claim of Exemption to assert any applicable exemptions to the wage garnishment, such as the head of household exemption.
- File a motion to dissolve writ of garnishment, pointing out any procedural mistakes with the Florida wage garnishment statute.
- Mail a copy of the claim of exemption form and the motion to dissolve to the judgment creditor’s attorney.
- Consider making an offer to settle the entire judgment, and if so, contact the judgment creditor’s attorney with the offer.
- If no settlement, contact the judge’s office to schedule a hearing on the claim of exemption.
- Gather all documents to support your exemption, such as recent bank statements, W2 statements, tax returns, and any evidence showing that you provide more than 1/2 support to a dependent or other eligible person.
Under Florida law, a wage garnishment is a special type of garnishment writ provided by Florida Statutes applicable to a debtor’s earnings. Wages and salary earned for labor constitute a debt an employer owes to an employer debtor.
Earnings subject to wage garnishment include salary, hourly wages, bonuses, commissions, and other forms of employee compensation. Payments due to a debtor working as an independent contractor are not subject to continuing wage garnishment.
In Florida, wage garnishment laws are strictly enforced. The garnishment statute requires the garnishing creditor to follow complicated requirements and procedures including several required notices and time deadlines. Garnishment procedures are strictly construed, and the creditor must comply with all procedures to enforce continuing wage garnishment in Florida.
The most important sections of Florida wage garnishment law include:
- Issuance of Writ After Judgment (77.03)
- Continuing Writ of Garnishment Against Salary or Wages (77.0305)
- Notice to Individual Defendant for Claim of Exemption from Garnishment; Procedure for Hearing (77.041)
- Service of Garnishee’s Answer and Notice of Right to Dissolve Writ (77.055)
- Dissolution of Writ (77.07)
- Judgment (77.083)
The debtor may file a motion to dissolve a garnishment for any procedural defect in the creditor’s administration of the writ. It is important that creditors and judgment debtors to understand Florida’s detailed garnishment procedures.
A judgment creditor that holds a money judgment may file a Motion for a Continuing Writ of Garnishment. The motion is filed in the same court, and with the same judge, that issued the underlying money judgment. The creditor files the garnishment motion ex-parte, which means without advance notice to the judgment debtor. Upon filing the motion, the judge will ordinarily grant the writ of continuing wage garnishment, and the court then creditor sends the continuing garnishment order to the debtor’s employer.
Once an employer receives the garnishment order the creditor must send the debtor a copy of the court papers including the creditor’s garnishment motion, the court’s garnishment order, and other documents (including a “claim of exemption” form discussed below).
An employer is required to apply a wage garnishment immediately and deduct appropriate portions of the debtor’s earnings. The employer has 20 days to file an answer to the writ and serve a copy of that answer to the creditor and employee.
Some debts bypass the above process. If you owe money for income taxes, child support, or student loans, then your wages can be garnished without a court order.
How Long Do Wage Garnishments Last?
What makes the Florida wage garnishment particularly effective is the ongoing nature of the writ. A single writ served on the debtor’s employer will garnish all the debtor’s salary and wages as they become payable in the future until the judgment is satisfied or the garnishment is dissolved. Garnishment writs directed at other debts or compensation, such as rents or payments to an independent contractor, apply only to payments due to the debtor on the day the writ is served upon the garnishee. There are no continuing garnishments against any debts other than earnings owed to a judgment debtor.
Florida Wage Garnishment Exemptions
The most well known of the wage garnishment exemptions is the head of household exemption. Wage garnishment in Florida is not permitted against a debtor who qualifies as the head of household. Head of household law is complex. A debtor who receives notice that his wages have been garnished must affirmatively assert their head-of-household exemption.
These Florida garnishment exemptions are provided for in Section 222.11 of the Florida Statutes. Other exemptions could apply, but they are trickier to assert.
Florida’s wage garnishment exemptions do not apply to garnishments initiated by the federal government to collect judgments owed to government agencies. Many federal agencies, such as the Small Business Administration and Federal Trade Commission, are authorized to get an “administrative wage garnishment” of up to 25% of a debtor’s wages notwithstanding any exemptions provided in state exemption statutes.
In addition to claiming any applicable exemptions, it’s important to make sure that the creditor has properly followed Florida wage garnishment procedures. The garnishment statutes give the creditor strict deadlines for when it must provide certain notices and other documents to you as it tries to garnish your wages. If it misses the deadlines, you might have a good reason for the court to dissolve the continuing writ of garnishment. A garnishment lawyer will typically help you identify any mistakes and assert your defenses in a motion to dissolve the garnishment.
Head of Household Exemption Form
For a Florida wage garnishment, a judgment debtor can claim a head of household exemption on the Claim of Exemption form provided by the creditor. Some clients refer to this form as the head of household exemption form. The debtor mails the exemption form to the court and then waits for the court to schedule a hearing on the head-of-household exemption.
Keep in mind that these exemptions are not automatic. If you do not properly claim the exemptions and assert them in your defense, the creditor can continue to garnish your wages.
Waiver of Head of Household Exemption
Florida statutes provide that a debtor may waive head of household exemption at the beginning of a commercial relationship by signing a waiver form. Many lenders customarily require new credit customers to waive their head of household protection. These waivers are described elsewhere on this website. Borrowers should be aware of the consequences of exposing otherwise exempt wages to garnishments in the event of credit default.
Federal Limits to Garnishment
Debtors who are not head of household, or who have waived their head of household garnishment protection, may have their wages garnished only up to limits allowed by federal consumer law. The Consumer Credit Protection Act limits wage garnishments to no more than the lesser of 25 percent of a debtor’s disposable weekly income or disposable earnings. Disposable earnings mean “take home pay” after legally required deductions such as tax withholding.
Voluntary withholding for retirement accounts, holiday savings account etc. are included in disposable earning. However, federal consumer law permits greater amounts to be garnished to enforce tax debts or court ordered domestic support obligations. There is a 50 percent ceiling for domestic support garnishments. This means that a former spouse seeking to collect alimony or child support payments by garnish up to 50% of the paying spouse’s disposable income. The 50% alimony and support limit must include any disposable income already garnished by the paying spouse’s other judgment creditors. An additional 5% can be garnished to collect alimony more than 12 weeks past due.
There are different garnishment limits for debts owed to the United States such as delinquent student loans. For example, federal agencies can garnish 15% of a debtor’s disposable wages to pay delinquent non-tax debts owed to a federal agency including student loan debt.
Federal law protects the employment of debtor’s subject to a wage garnishments.. Federal law prohibits an employer from firing an employee whose earnings are subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect that one debt. The same law does not prohibit discharge because an employee’s earnings are separately garnished for two or more debts.
Dissolution of Garnishment When Exemption Circumstances Change
One of our clients wanted to know if there was a mechanism to dissolve a wage garnishment after their exemption circumstances changed. The client was not head of household at the time the wage garnishment judgment was entered. However, two years after entry of the garnishment judgment, the client had a child and was providing most of the financial support for that child.
The questions then is how does a judgment debtor assert his or her head of household exemption after the garnishment judgment has already been entered? The garnishment statute only outlines a procedure by which a judgment debtor can assert the exemption before the writ of garnishment is reduced to a judgment against the garnishee. The statute does not provide any mechanism for filing a claim of exemption after the garnishment has been reduced to judgment.
Instead, the procedure could be to file a motion for relief from judgment under Rule 1.540 of the Florida Rules of Civil Procedure. The rule explains that a person can ask the Court for relief from a judgment (including a garnishment judgment). See, for example, Barnett Bank of South Florida, N.A. v. American Medical Exp. Corp., 671 So. 2d 819 (Fla. 3d DCA 1996); Antuna v. Dawson, 459 So. 2d 1114, 1118 (Fla. 4th DCA 1984).
Last updated on May 16, 2021