Florida wage garnishment is a remedy available to creditors: it is a mechanism by which creditors can collect from debtors who do not otherwise pay them. In wage garnishment, a creditor has part of the debtor’s wages or salary sent to the creditor to satisfy the debt. It is a powerful remedy in most states, but less so in Florida, due to a unique exemption that protects all income—from any source, in any amount—of the head of a household from garnishment.
Even apart from Florida’s head of household exemptions, note that creditors cannot garnish whenever they want—they need to first sue the debtor on the debt and obtain a court judgment in their favor. The judgment establishes the creditor’s legal right to the money. (There are a few very limited exceptions, where a win in court in not necessary as a condition precedent to a garnishment, such as garnishment by the IRS.)
Note also that while any money owed as a result of a credit card, promissory note, contractual obligation, etc. is obviously a “debt” for garnishment purposes, so is any money owed as a result of someone’s successful lawsuit for damages or injuries arising from an automobile accident, bad home construction, medical malpractice—for garnishment purposes, a “debt” is any sum of money owed due to a legal determination, such as a court judgment. Similarly, while wages and salary are commonly garnished, any money owned by or due to a debtor, which is in a third parties’ control, can be garnished.
Not all types of income may be garnished—in every state, several (or many) kinds of non-wage, non-salary income are exempt from being garnished. (The fact that money earned by the sweat of someone’s brow is never exempt is actually fairly odd when you think about it—does that mean that as a society, we value money earned by honest labor the least?)
Florida, as can be seen from the above, protects many forms of income, especially retirement income, from garnishment.
In addition, Florida has a very far reaching, very powerful, and unique protection available to the “head of a household”—someone who provides 50% (or more) of the income for at least one dependent. In Florida, the income of the head of a household may not be garnished. (Technically, the first $500 per week of income is absolutely protected; anything over that may be garnished IF the head of the household agrees in writing to garnishment—but how likely is that?)
Subject to the head of household exemption, Florida follows federal law in terms of the maximum amount garnished. Under federal law, the lesser of the following may be garnished:
Be aware that the 25% rule is for most debts. A very few debts, such as tax obligations or child support, allow much more of the debtor’s income to be garnished.
First, a creditor needs to successfully sue, which means the creditor needs to bring a lawsuit within the statute of limitations (time to sue) for the underlying debt. For the main consumer debts, the limitation periods are:
Second, after suing and obtaining a judgment, the creditor must look to enforce it, such as by garnishment. A creditor has only 5 years to act if it is a “foreign” judgment (one from a non-Florida court), but 20 years(!) to act on a Florida judgment. That means a creditor can afford to wait until an unemployed or underemployed debtor gets back on his or her feet before looking to garnish wages.
Before ever the creditor tries to garnish the debtor’s wages the debtor has already had his or her day in court and opportunity to defend him- or herself.
After the judgment has been obtained, the debtor has little involvement in garnishment. The creditor takes the judgment back to court for enforcement. It applies in writing to the court, stating that money is due it pursuant to the judgment; that debtor has not paid and garnishment is believed to be necessary; and that a the “garnishee” is believed to have money available and either belonging to or owed to the debtor (such as debtor’s salary or wages), which can be used to satisfy the debt.
Unless there is some either factual inaccuracy or some change in circumstances (e.g. the debtor no longer works for the garnishee; though note that companies may not fire employees just because there is a garnishment against them), the garnishee will almost always be ordered to turn over part of the debtor’s income for the creditor’s benefit. More on Stopping Wage Garnishment in Florida.
When threatened with garnishment, it’s a good idea to seek legal help. There are ways in which to attack a garnishment, such as by challenging the judgment on which it is based. If the judgment had been fully litigated, there is usually little that can be done to challenge it on its “merits”—e.g. to challenge whether it is a valid debt or whether debtor owes the creditor money.
However, if the judgment was rendered improperly, such as by “default” when the debtor never actually received notice of being sued, there may be grounds to have it set aside. Similarly, it may be possible to attack the underlying debt as too old if it had not been litigated in time (based on the statute of limitations).
It may be possible to attack the garnishment itself as too old, but Florida’s long statute of limitations for enforcing Florida judgments makes this difficult.
Another possibility is to show that the calculation of the debtor’s disposable income is too high, and therefore that the amount garnished has to be reduced. Showing that much of debtor’s income comes from exempt sources is a key part of this. Since Florida is at least as generous—if not more—than most other states in regards to exempt types of income, it is a good idea to look into this.
If the debtor has garnishments against him or her for other obligations, such as child support, it might be possible to show that the debtor is already paying as much in total as they could be required.
Finally—and most importantly!—don’t forget the head of household exemption. This can protect ALL of a debtor’s income from garnishment.