Debtors' Rights in Florida
A judgment is an order entered by a judge at the end of a lawsuit. A creditor who obtains a judgment against you is called a judgment creditor. A judgment creditor can require you to attend a deposition and give information about your income and assets. The court can require you to give written information or testimony about your income, assets, property, employer and Social Security number. If a judgment is entered against you by a court, your wages or bank account may be taken from you to pay the judgment. This is called garnishment and attachment.
The garnishment law allows the judgment creditor to obtain a continuing writ of garnishment which orders your employer to deduct money from your periodic wages until you have paid off the judgment. Through a process called execution a creditor can collect money owed under a judgment. The judgment creditor pays a bond to the local sheriff to seize personal property owned by a judgment debtor so that it can be auctioned and the proceeds applied to pay the judgment.
If you own the home you live in, your home is protected from all creditors except those holding a mortgage or lien on your residence. You can exempt or protect your home and up to one-half acre of land from any forced sale if you live in an incorporated area. This also applies to mobile homes. If you live in an unincorporated area, you can protect up to 160 acres as homestead property.
Under most circumstances, a lien cannot be placed on your home for a debt. However, creditors who loan you money to buy, improve, or repair your home may put a lien on your home.
To protect your home, an affidavit describing your home and claiming it as your homestead must be filed with the court. This is different from the homestead tax form you file with the county property appraiser every year.
YOUR PERSONAL PROPERTY
The Florida Constitution gives you the right to exempt up to $1,000 in personal property from confiscation by a creditor. Unless the judgment creditor has a lien or security interest in this property, this constitutional exemption allows you to protect up to $1,000 worth of your property from execution or attachment. This $1,000 can include wages and money held in a bank account. If you own more than $1,000 worth of personal property, you can choose which property to protect. If the judgment is only against you and not your spouse, your spouse is entitled to protect his or her interest in the property. Property that is held by a husband and wife as tenants by the entireties cannot be divided and thus is not subject to the claims of creditors of the husband or wife individually. The judgment debtor and/or the debtor's spouse must file an affidavit with the court and the sheriff to obtain the exemption and protect the property from the judgment creditor.
Wages of the head of a family are exempt from garnishment unless the person's net wages are more than $500 per week and the person has agreed in writing to allow wages to be taken to pay the debt. A head of family includes all persons who reside in Florida and who provide more than one-half of the support for a child or other dependent. Wages in a bank account that belong to a head of family retain their protection from being seized for six months even if the wages are mixed with money from other sources. If a head of family had not agreed in writing to allow the garnishment or attachment of wages, all the wages are exempt. You must file an affidavit with the court to declare your head of family status and protect your wages from being taken.
Persons who do not qualify as head of family will still have the protection of federal law which limits the amount of wages that can be garnished. If you take home less than 30 times the minimum wage per week, all of your wages are exempt. Otherwise, a judgment creditor can obtain 25 percent of your net wages under a continuing writ of garnishment until the judgment is paid in full.
Your interest in a vehicle is exempt up to $1,000 of its value. This means that your vehicle cannot be taken to satisfy a judgment unless the value of the car, less all debts for which the vehicle is collateral, is greater than $1,000. If a judgment creditor or sheriff takes your vehicle under an execution and its value to you is $1,000 or less, you can apply to the court for recognition of your exemption and request the return of your vehicle. Your affidavit of exemption should be filed with the court and the sheriff.
OTHER PROPERTY AND INCOME
All professionally prescribed health aids used by you or your dependents are exempt from being taken by creditors. Other types of income, including Social Security benefits, workers compensation, unemployment benefits, disability benefits, Veteran's benefits and retirement benefits are exempt from garnishment.
PROCEDURE FOR CLAIMING YOUR EXEMPTIONS
You may claim your exemptions by filing an affidavit with the court describing the exemption and your claim to it. Your affidavit must also be sent to the judgment creditor and any attorney for the judgment creditor. The judgment creditor must then file an affidavit with the court within two days to challenge your exemption. If the judgment creditor doesn't object by filing an affidavit, you can ask the court for a hearing to stop the garnishment or execution and have your exempt wages or property returned to you. Notice of the hearing must be given to the judgment creditor.
Under current Florida law, if your wages or bank account are going to be garnished, you will not receive any notice until after the wages have already been withheld or a hold placed on your bank account. The judgment creditor must send you a copy of the writ of garnishment, a copy of the answer filed by your employer or bank and a notice telling you about your right to request that the court stop the garnishment or execution.
Your spouse or any other person who has an ownership interest in the property may file an affidavit showing the right of ownership and requesting the court to return the property. The judgment creditor may contest the claim of exemption and request a hearing.
Transfers of property that are fraudulent or are made solely to keep the property from creditors may cause the property to lose its exempt status.
If you need assistance with establishing your exemptions to protect your income or property, please contact your local legal services or legal aid office or a private attorney. Forms and instructions for asserting your exemptions are available free of charge from your local legal services or legal aid office.
Bankruptcy may be another option for you. Information about your rights in bankruptcy is provided in Bankruptcy, a pamphlet available from The Florida Bar. To obtain a copy send a self-addressed, legal size, stamped envelope to:
The Florida Bar
650 Apalachee Parkway
Tallahassee, FL 32399-2300
The material in this pamphlet represents general legal advice. Since the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.