Winter Park Florida attorney Eric Lanigan talks about garnishments and what happens if you’ve already got a judgment that’s been entered against you and now either that judgment creditor is coming after you or you’re assuming that he’s about to come after you to try to garnish your wages.
The video is called “What to do About a Florida Wage Garnishment Judgment,” and can be viewed on the LaniganPL YouTube channel.
There are two fundamentally different circumstances that can exist:
1). One is if the judgment debtor is married but the judgment is only against one of the two people.
2). And the other circumstance is where the judgment is against both husband and wife or if the judgment debtor is a single person.
Right now I’m going to talk about the first scenario where the judgment debtor is married but the judgment is only against that one person. Their spouse was not named in the lawsuit and the judgment is not against them. The first thing I want to say is all kind of judgments in Florida the process from the standpoint of the creditor, it can be quite complex. And we find it’s very common quite frankly that they just screw it up. We can get the whole thing thrown out because they missed one of the procedural requirements. And the law is very clear that that law is strictly interpreted and that all of the requirements must be met to in order to have a valid garnishment.
Now typically the first thing the judgment creditor comes after are your wages where you work. That garnishment is served on your employer and that is what we call a continuing writ of garnishment. In other words once they serve it, it continues to apply to every paycheck you get after that, until the judgment has been satisfied.
Less Than $750 Per Week: Can’t Be Garnished
First thing to know if your gross earnings, your income before any deductions is less than $750 a week your wages cannot be garnished. If you make more than $750 per week then your wages can be garnished.
Head of Household Exemption
If you’re married, the number one exemption is head of household. Head of household is a real simple definition: If you make more money than your spouse, you’re head of household and vice verse. So if someone’s trying to garnish your wages and you make the most amount of money in the family, you’re the head of household. Now, head of household we would normally think well that’s my wife, my kids, my husband, my kids but head of household means that you have dependents living in the house with you. They don’t necessarily need to be your spouse or your children. It could be your brother your parents your sister.
Now the next scenario for a married person who has a judgment against them is the person who says well I don’t get a paycheck, I’m self-employed I own my own company. What’s my situation? Well the law in Florida gets real quirky in that the courts have interpreted the law such that this wage exemption for head of household does not apply to a person who is self-employed and who according to the law controls the timing of their own income.
I personally think that it’s unfair. I think it’s unjustifiably discriminatory against self-employed persons but as far as the law goes, that’s just the way it is. There’s a silver lining to that in that if what a self-employed person earns doesn’t come under this category of wages, then the courts have also said well, “Mr. Judgment Creditor, you can’t get a continuing writ of garnishment because continuing writ of garnishment only applies to wages.”
So the judgment creditor in that situation has to be repeatedly trying to garnish a bank account to try to get it at a time when some earnings have come into that account. It’s very hit or miss, as I said at the beginning the garnishment procedure can be complicated and it’s not cheap. So there is that silver lining for the self-employed person. You want to have your money come into that account very sporadically and you want to get it out of that business account as soon as you can.
What Can You Do to Protect Your Money?
And what do you want to do with that money? Well regardless of whether your a wage earner or self-employed business person. Get the money into an account with your spouse because there’s very good case law in Florida one of the cases came out of the bankruptcy court right here in the middle district of Florida where they said that for a wage earner who’s married, to bring home their earnings or their self-employed earnings for the simple purposes of operating and maintaining their household is not a fraudulent conveyance.
Tenants by the Entireties
And you now have a new exemption which applies and that is property that you and your spouse own together as tenants by the entireties Is also exempt from the garnishment. And if you setup the bank account properly you want to make sure that it’s setup by tenants by the entireties. Then your earnings that go into that account become exempt.
One of the things that I always tell people about garnishment, is that the good news is you’re going to win. This account is not garnishable for one of those many reasons that I just talked about. The bad news is that it’s going to cost you fifteen hundred dollars to win. So don’t be complacent in thinking that well, I’ve got this exemption and I’ve got that exemption and if they try to garnish the account, I’ll win. Yes you will win, but you’re going to spend fifteen hundred dollars in order to win. You basically win but you also lose fifteen hundred dollars.
Second Video Explains Single Debtor and Married Debtors
Now I’m also going to talk about in separate video what’s the situation that most lawyers think is Mission Impossible: when you have a single debtor or a husband and wife who are both liable on the judgment, maybe they’ve both signed the guarantee on the note. Because obviously you don’t have the tenancy by the entireities exemption, there’s a lot of exemptions you don’t have because they can go after what either one of you own.
So I’m going to do another video and we’re going to talk about what those people can do in the end to protect themselves just as much as the examples that I’ve given so far.