Wage Garnishment in Florida: What the Law Says and What Bankruptcy Changes

How much of your pay can be garnished in Florida?

A "head of family" is any natural person providing more than one-half of the support for a child or other dependent, and "disposable earnings" are what remains after amounts required by law to be withheld (Fla. Stat. § 222.11). All of the disposable earnings of a head of family at or below $750 per week are exempt from attachment or garnishment. Above that threshold, a head of family's disposable earnings may not be garnished unless that person agreed otherwise in writing, and where such a waiver exists the amount taken may not exceed what the federal Consumer Credit Protection Act allows. For a person who is not a head of family, Florida does not set its own percentage; the limit is the federal one. Under 15 U.S.C. § 1673(a), garnishment may not exceed 25% of disposable earnings for the workweek, or the amount by which those earnings exceed thirty times the federal minimum hourly wage, whichever is less.

• The federal percentage cap does not apply to a support order issued by a court of competent jurisdiction or under a qualifying state administrative procedure (15 U.S.C. § 1673(b)(1)(A)).
• It does not apply to a debt due for any state or federal tax (15 U.S.C. § 1673(b)(1)(C)).
• A support order carries higher ceilings: 50% of disposable earnings for the workweek where the individual is supporting a spouse or dependent child other than the one covered by that order, and 60% where not, each becoming 55% or 65% to the extent the earnings are garnished to enforce a support order for a period prior to the twelve-week period ending with the beginning of that workweek (15 U.S.C. § 1673(b)(2)).

What do the supplied Florida statutes require of creditors and courts?

Chapter 77 lets a creditor who has sued on a debt, or holds a judgment, garnish debts owed to the defendant and the defendant's property in a third person's hands (Fla. Stat. § 77.01). Before judgment, the plaintiff must file a verified motion or affidavit alleging specific facts, plus a bond in at least double the debt demanded unless an attachment writ has issued (Fla. Stat. § 77.031). After judgment, the plaintiff must file a motion stating the amount of the judgment before the writ issues (Fla. Stat. § 77.03); that is one requirement, and the chapter's other conditions still apply. For wages, the court issues a continuing writ to the employer until the judgment is satisfied or it orders otherwise (Fla. Stat. § 77.0305).

• Service of the writ makes the garnishee liable for debts owed to the defendant and property in its control, and creates a lien on them (Fla. Stat. § 77.06).
• The writ requires the garnishee to serve an answer on the plaintiff within 20 days after service of the writ (Fla. Stat. § 77.04).
• The plaintiff must mail the writ, the motion and — for an individual defendant — the Notice to Defendant to the defendant's last known address within 5 business days after issuance or 3 business days after service on the garnishee, whichever is later (Fla. Stat. § 77.041).

Which income is protected from garnishment under Florida law?

No dollar cap does not mean an unconditional exemption, and the statutory list is not exhaustive (Fla. Stat. § 77.041). Workers' compensation is exempt from creditors and unwaivable, but not against claims based on an award of child support or alimony (Fla. Stat. § 440.22). Reemployment-assistance and unemployment benefits are exempt subject to that chapter's exceptions (Fla. Stat. § 443.051(2)), and retirement funds only if they qualify under their statute's conditions (Fla. Stat. § 222.21(2)). Head-of-family earnings stay exempt for 6 months after a financial institution receives them if they can be traced and identified as earnings; commingling alone does not defeat tracing (Fla. Stat. § 222.11).

Which statutory protections may matter when contesting a Florida garnishment?

The Notice to Defendant tells the defendant to complete and notarize a Claim of Exemption and Request for Hearing, file it with the clerk within 20 days after receiving the notice, and mail or deliver a copy to the plaintiff or plaintiff's attorney and the garnishee or garnishee's attorney (Fla. Stat. § 77.041). If a sworn claim and request are filed, a hearing is held as soon as practicable. If the plaintiff does not file a sworn written statement answering the claim within 8 business days after hand delivery, or 14 business days if the claim was served by mail, no hearing is required and the clerk must automatically dissolve the writ and notify the parties. Separately, a defendant may move to dissolve a writ, and the court must set that motion for immediate hearing (Fla. Stat. § 77.07). Federal law also makes it unlawful for an employer to discharge an employee because earnings were garnished for any one indebtedness (15 U.S.C. § 1674).

• The plaintiff must serve a copy of the garnishee's answer and a notice about moving to dissolve within 5 days after service of that answer or after the answer period expires (Fla. Stat. § 77.055).
• A motion to dissolve under that notice must be filed and served within 20 days of the date on the certificate of service; failing to do so results in the motion being struck as an unauthorized nullity (Fla. Stat. § 77.07).
• If the plaintiff files no dismissal or motion for final judgment within 6 months after filing the writ, the writ is automatically dissolved and the garnishee is discharged; the plaintiff may extend it 6 more months only by serving both the garnishee and the defendant with a notice of extension and filing a certification of that service (Fla. Stat. § 77.07).

How does filing bankruptcy affect a Florida garnishment?

Filing a petition commences a voluntary case, and the filing is itself the order for relief (11 U.S.C. § 301). The petition operates as a stay of the commencement or continuation of an action against the debtor that was or could have been commenced before the case, or that seeks to recover a prepetition claim, and of enforcement of a judgment obtained before the case against the debtor or property of the estate (11 U.S.C. § 362(a)). No separate court order creates that stay. It is not universal: the filing does not stay withholding of income, whether property of the estate or of the debtor, for payment of a domestic support obligation under a judicial or administrative order or a statute (11 U.S.C. § 362(b)).

• The stay of acts other than against estate property continues until the earliest of the case closing, dismissal, or — in an individual chapter 7 case or a chapter 9, 11, 12 or 13 case — the grant or denial of discharge (11 U.S.C. § 362(c)).
• On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay — terminating, annulling, modifying or conditioning it — for cause, including lack of adequate protection of an interest in property (11 U.S.C. § 362(d)).

Which exemptions apply if you file bankruptcy in Florida?

Florida has opted out of the general federal exemption list in 11 U.S.C. § 522(d), so a debtor to whom Florida law applies generally cannot elect it (Fla. Stat. §§ 222.20–.201). That state-law alternative still reaches property exempt under other federal law and retirement funds in an account exempt from taxation under the named Internal Revenue Code sections (11 U.S.C. § 522(b)). Domicile, not current residence, decides which state's law applies: the statute looks to where the debtor's domicile was located for the 730 days before filing; if it was not in a single state then, to the place of domicile for the 180 days immediately preceding that 730-day period, or for the longer portion of those 180 days than any other place. If that rule would leave the debtor ineligible for any exemption, the federal list may be elected.

• Florida's constitutional homestead exemption has no state-law dollar ceiling, but is limited to 160 contiguous acres outside a municipality or one-half contiguous acre within one, and remains subject to the constitutional creditor exceptions and the federal bankruptcy caps (Fla. Const. art. X, § 4(a)(1)).
• The exemption for a debtor's interest in one motor vehicle is $5,000 (Fla. Stat. § 222.25(1)); a separate $4,000 personal-property exemption applies only if the debtor does not claim or receive the benefits of the constitutional homestead exemption, and not to a debt owed for child support or spousal support (Fla. Stat. § 222.25(4)); the constitutional personal-property exemption is $1,000 (Fla. Const. art. X, § 4(a)(2)).
• The opt-out is not total: Florida separately permits the federal benefit exemptions under 11 U.S.C. § 522(d)(10) in addition to state exemptions (Fla. Stat. §§ 222.20–.201).
• Whether spouses filing jointly may each claim these amounts is a question to put to a lawyer before relying on a doubled figure.

What should you ask a lawyer about a Florida garnishment?

The statutes here set the deadlines and the forms, but they do not tell you how a court will treat your facts: whether you meet the head-of-family definition, or whether a waiver you signed meets the statute's form requirements. This page does not cover administrative collection regimes, such as student-loan or tax collection, that run under their own authority; their absence does not mean such collection is forbidden or unlimited. Questions for a lawyer or a legal-aid office: Do I provide more than half the support for a child or other dependent? Did I sign a garnishment waiver? Is any garnished money traceable exempt earnings?

Frequently asked questions

Does filing bankruptcy automatically stop a Florida wage garnishment?

Filing a petition generally operates as a stay of enforcement of a prepetition judgment, commonly halting that collection (11 U.S.C. § 362(a)). But the filing does not stay withholding of income for payment of a domestic support obligation under a judicial or administrative order or a statute (11 U.S.C. § 362(b)); prior dismissals can shorten or prevent the stay, as the next two questions describe (11 U.S.C. § 362(c)); and a creditor can ask the court for relief, which only the court can grant (11 U.S.C. § 362(d)).

What happens to the stay if I had one case dismissed in the past year?

It applies where a single or joint case under chapter 7, 11 or 13 is filed by or against an individual and a single or joint case of that debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after a dismissal under the Code's chapter 7 abuse provision. The stay as to any action taken with respect to a debt, property securing that debt, or a lease then terminates with respect to the debtor on the 30th day after the later filing, unless a party in interest moves for continuation and the court extends it, after notice and a hearing completed before that 30-day period expires, on a showing that the later filing is in good faith as to the creditors to be stayed (11 U.S.C. § 362(c)).

And if two or more cases were dismissed in the past year?

If two or more single or joint cases of an individual debtor were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after a dismissal under the Code's chapter 7 abuse provision, no stay arises at all when the later case is filed by or against that individual. If a party in interest requests it within 30 days after the later filing, the court may order the stay to take effect as to any or all creditors, after notice and a hearing, only on a showing that the later filing is in good faith as to the creditors to be stayed (11 U.S.C. § 362(c)).

Can my employer fire me because of the garnishment?

No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness (15 U.S.C. § 1674). Willful violation carries a criminal fine and possible imprisonment. That provision concerns being fired; it is not a mechanism for recovering money already withheld. State law may go further — the federal subchapter does not affect state laws prohibiting discharge for garnishment on more than one indebtedness (15 U.S.C. § 1677).

Are tort claims and injury recoveries reachable by garnishment?

Before judgment, no writ of garnishment may issue in any action sounding in tort (Fla. Stat. § 77.02). Separately, writs of garnishment, execution or other process may not issue out of any court to reach money due or likely to become due as damages under Chapter 769 (Fla. Stat. § 769.05). That protection is limited to Chapter 769 damages; it is not a general rule covering every injury recovery.

Sources

• Fla. Stat. § 222.11
• Fla. Stat. § 77.01
• Fla. Stat. § 77.02
• Fla. Stat. § 77.03
• Fla. Stat. § 77.031
• Fla. Stat. § 77.0305
• Fla. Stat. § 77.04
• Fla. Stat. § 77.041
• Fla. Stat. § 77.055
• Fla. Stat. § 77.06
• Fla. Stat. § 77.07
• Fla. Stat. § 769.05
• Fla. Stat. § 440.22
• Fla. Stat. § 443.051(2)
• Fla. Stat. § 222.21(2)
• Fla. Stat. § 222.14
• Fla. Stat. § 222.18
• Fla. Stat. § 222.25(1)
• Fla. Stat. § 222.25(4)
• Fla. Stat. §§ 222.20–.201
• Fla. Const. art. X, § 4(a)(1)
• Fla. Const. art. X, § 4(a)(2)
• 11 U.S.C. § 301
• 11 U.S.C. § 362 · official source
• 11 U.S.C. § 522 · official source
• 15 U.S.C. § 1673
• 15 U.S.C. § 1674
• 15 U.S.C. § 1677

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