by David Gagnon and Gina Peretti Taylor, Day, Currie, Boyd & Johnson
In Florida, garnishment procedures are governed by Chapter 77 of the Florida statutes.
Judgment debtors or defendants have two ways of challenging a writ of garnishment: (1) by filing a claim of exemption from garnishment or (2) by filing a motion to dissolve the garnishment within 20 days after the date indicated on the certificate of service in the notice.
Under 77.041, Florida Statutes, there are numerous claims of exemptions including: Head of family; Social Security benefits; supplemental security income benefits; public assistance; workers’ compensation; unemployment compensation; retirement or pension money; life insurance benefits; and disability income benefits, among others.
The head of family exemption is described in more detail in 222.11, Florida Statutes, the exemption of wages from garnishment. Under the head of family exemption, one can protect his or her wages from being garnished if he or she is a head of household providing more than one-half of the support for a child or other dependent.
If the party claiming exemption has earnings less than or equal to $750 a week, then all of the disposable earnings are exempt from attachment or garnishment.
If the party claiming exemption has disposable earnings greater than $750 a week, then those earnings above $750 may not be attached or garnished unless such person has agreed otherwise in writing.
To claim the head of family exemption, a party must establish that he or she is a head of family and that the amounts in dispute constitute earnings as defined in the statute.
The dependent does not have to be a minor, and can be a significant other, parent or other relative.
The party claiming the exemption does not have to have legal custody of a minor child to claim that child as a dependent for purposes of protecting wages from being garnished.
Earnings as defined in the statute include compensation paid or payable for personal services or labor, whether denominated as wages, salary, commission, or bonus.
Since garnishment proceedings are statutory in nature, they require strict adherence to the provisions of the statute.
Section 77.041, Florida Statute now provides a sample claim of exemption form that should be used when a party does not want his or her wages to be garnished.
The Claim of Exemption and Request for Hearing must be filed with the Clerk of Court’s office where the judgment is recorded within 20 days after the debtor receives the Notice.
The party claiming the exemption must also send the creditor a copy of the Claim of Exemption and Request for Hearing on the same day that the party files it with the Clerk of Court’s office.
The creditor has three days to object to the Claim of Exemption if the debtor hand-delivered the Claim of Exemption to the creditor and, the creditor has eight days to object to the Claim of Exemption if the debtor sent the Claim of Exemption by mail.
For example, in Communications Center Inc. v. Komatsu, 2009 WL 604944, (M.D. Fla., March 9, 2009), the Middle District dissolved the writ of garnishment where the party responding to the claim did not file a sworn statement contesting the facts of the plaintiff’s claim within eight days, reasoning that section 77.041(3) plainly states that if a sworn response to the party’s claim is not filed within eight days, the “clerk must automatically dissolve the writ.”
Thus, if the creditor does not object to the Claim of Exemption within the proper time frame, then the writ of garnishment will be dissolved and the garnished wages, money, or property will be released.
However, if the creditor objects within the proper time frame, then the court will hold a hearing to determine if the wages, money or property is exempt from being garnished.
Because garnishment is a statutory proceeding, the trial court does not have discretion to bend the deadline to move to dissolve the writ.
Section 77.041 does not provide a procedure for a garnishment defendant to file an untimely exemption claim; rather, it warns that the person can lose rights by failing to file a timely exemption.