By: Mark S. Mitchell

Since the financial crisis of 2008, the economy has been improving, albeit at a slower pace than many would like, and the stock market has seen meaningful gains. However, unemployment is still relatively high and the residential and commercial real estate markets have not yet rebounded as many had hoped. Many individuals continue to face financial hardship, job loss, foreclosure, and bankruptcy. And while individuals face challenges paying their creditors, banks and other lenders — although often viewed with less sympathy in the current economic climate — face challenges collecting payments from borrowers.

Recently the Florida Legislature amended F.S. § 222.11, the statutory exemption of an individual’s earnings from wage garnishment. The amendment of § 222.11 modified Florida’s wage garnishment exemption and afforded greater protection to debtors. Specifically, the amendment increased the amount of a debtor’s exempt disposable earnings and also added certain requirements to the wage garnishment waiver. Awareness of these changes is of equal importance to both borrowers and lenders.

The Fundamentals of Garnishment
Garnishment is a statutory remedy governed by F.S. Ch. 77, and is used by creditors to collect debts owed by debtors. Garnishment is most often used as a post-judgment remedy to collect a debt owed by the “judgment debtor,” which is the party against whom the judgment is entered. 1 A writ of garnishment is an order issued by the court, whereby the “garnishor” — the creditor who brings the garnishment action — procures a lien on personal property of a judgment debtor in the possession of a third party, referred to as the “garnishee.” 2 After a writ of garnishment is issued, the garnishor, garnishee, and judgment debtor are afforded opportunities to respond, assert defenses, and claim and dispute exemptions. 3

Garnishment may be used in a variety of circumstances. For example, a writ of garnishment may be used to recover money held in a judgment debtor’s bank account. 4 When such a writ is issued, the bank/garnishee will often freeze the account and apply the funds, subject to any exemptions, to satisfy the judgment of the garnishor. A writ of garnishment also may be used to recover tangible or intangible personal property of the judgment debtor in the possession of another. 5 When a court issues the writ, the garnishee will have to surrender the property to the sheriff, who will sell the property in a public auction in order to satisfy the garnishor’s judgment. 6 Additionally, a writ of garnishment may be used to collect portions of a judgment debtor’s wages through issuance of a continuing writ of garnishment to the judgment debtor’s employer. 7 A continuing writ of garnishment provides notice to the employer/garnishee to withhold periodically a portion of the judgment debtor’s earnings, which will then be paid to the garnishor until the judgment is satisfied or otherwise directed by the court. 8

Wages Exempt from Garnishment under F.S. §222.11
• Requirements of the “Head of Family Exemption” — A creditor has a right to garnish a judgment debtor’s wages, subject to the exemptions set forth in §222.11. If a judgment debtor is considered a “head of family,” §222.11 exempts a judgment debtor’s “disposable earnings.”

Whether a judgment debtor is a “head of family” is determined by the statutory definition in §222.11(1)(c). A “head of family” is defined as a person who provides more than one-half of the support of a child or other dependant. 9 If a judgment debtor does not qualify as a head of family, then his or her disposable earnings will not be protected under the “head of family exemption.” In addition to the head of family requirement, the exemption under §222.11 is limited to the “disposable earnings” of a judgment debtor. “Earnings” is broadly defined as monetary compensation for labor and personal services. 10 However, earnings are not exempt under §222.11 if they are not received as regular or fixed compensation dictated by the terms of an arm’s length employment agreement. 11 Further, only “ disposable earnings” are exempt from garnishment, which are the judgment debtor’s earnings after withholdings required by law. 12

Mitchell, M. S. (2012, November 1). Recent Changes to Florida’s Wage Garnishment Exemption. The Florida Bar Journal, 27.