The Head of Family Exemption may be used to protect both wages and bank account funds from garnishment. However, application of the exemption is not straightforward. The following explains how the Head of Family Exemption applies in both garnishment scenarios.
WAGE GARNISHMENT
The head of family exemption makes disposable earnings exempt from a wage garnishment. However, you must raise this exemption by timely filing a Claim of Exemptions. The following explains the requirements for the Head of Family Exemption as it applies to a wage garnishment.
$750 per week
Disposable earnings of the head of family which do not exceed $750 per week are exempt from garnishment. “Disposable earnings” are your earnings after deduction of payroll taxes.
More than $750 per week
Disposable earnings of the head of family which exceed $750 per week are exempt from garnishment UNLESS the exemption was waived in writing. The creditor may include a waiver clause in the original loan documents. Nevertheless, a waiver clause may not be enforceable if the defendant did not have reason to know the waiver was included in the loan documents.
One-Half Support
The “head of family” includes a person that provides more than one-half of the support for a child or other dependent. The head of family does not have to be married. The head of family does not have to live with the child or dependent. In fact, the head of family does not have to be a Florida resident. In addition, the child or dependent is not limited to minors. The child or dependent may be an adult provided the defendant provides more than one-half of the child or dependent’s support.
BANK GARNISHMENT
The Head of Family exemption may apply in the event of a bank garnishment, too. However, the rules for the exemption are different when dealing with this type of garnishment. Again, you must timely filed a Claim of Exemptions or the exemption is waived.
Traceable to Wages
The funds in the bank account must be traceable to wages in order to be protected by the Head of Family exemption. However, commingling of the funds does not destroy the protection if they are still traceable to wages. If the funds cannot be traced to wages, then the exemption does not apply.
Six Months
The Head of Family exemption protects wages deposited into a bank account within the last six months. The protection afforded by the exemption is limited to only six months. After six months the funds lose the protection.
Head of Family
Interestingly, there is no requirement that the source of the funds was the Head of the Family for this exemption to apply. Also, there is no requirement that you provide more than one-half (1/2) of the support for a child or dependent. Therefore, single people also can use the Head of Family exemption to protect wages deposited into a bank account within the last six months.
HEARING ON CLAIM OF EXEMPTIONS
If the judgment creditor timely contests the Claim of Exemptions, then a hearing is scheduled. The defendant has the burden to prove that the head of family exemption is proper. The hearing is very fact-intensive, and the head of family exemption may be applied liberally by the courts. However, please note that the prevailing party may be awarded attorney fees by the court.
BANKRUPTCY
Bankruptcy will also stop wage and bank garnishments. However, you must qualify for bankruptcy. Call 727-487-9030 to schedule a free telephone consultation.