Understanding Wage Garnishments in Melbourne, FL & Your Rights in Brevard County
For residents of Melbourne, Florida, and across Brevard County, a wage garnishment notice can be incredibly stressful. It means a creditor is taking a portion of your hard-earned paycheck directly to satisfy a debt. At Bowin Law Group, our Melbourne, Florida bankruptcy attorneys help individuals navigate the complexities of Florida garnishment laws, ensuring you understand your rights and the powerful exemptions available to protect your income.
This blog post will walk you through the Florida wage garnishment process, from the initial judgment requirement to asserting your right to the crucial Head of Household exemption, and what happens if you succeed. When you're finished reading, click the link below to calendar a Free Phone Consultation to see if Chapter 7 bankruptcy is the best way to protect your money and assets.
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The Foundation: A Required Judgment
In Florida, a standard creditor (such as a credit card company or a personal loan provider) cannot simply start taking money from your paycheck. The process must follow strict legal procedures designed to protect your rights.
The first and most critical step for a creditor is obtaining a court judgment against you. This means they must successfully sue you in court and win the case. The lawsuit begins with a summons and complaint, and you typically have 20 days to file a formal response (known as an Answer) with the court. If you fail to respond or the court rules in favor of the creditor, a judgment is entered, giving them the legal authority to pursue collection actions like garnishment.
Exceptions to this judgment requirement include certain government entities. The IRS and the Florida Department of Revenue can pursue garnishment for unpaid taxes without a prior court order, and specific rules apply to child support and federal student loans.
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The Process: Motion for Writ of Garnishment
Once the creditor has a judgment, they can initiate the garnishment process by filing a Motion for a Writ of Garnishment with the court. This motion formally requests a court order (the "Writ") instructing a third party—known as the garnishee—to turn over money or property belonging to the debtor (you). In the case of wage garnishment, the garnishee is your employer.
The motion itself does not need to consider your exemptions; it simply states the amount of the judgment owed. If the court approves the motion, a Continuing Writ of Garnishment Against Salary or Wages is issued and formally served on your employer.
The Garnishee's Role: Freezing Accounts and Withholding Pay
Upon being served with the Writ of Garnishment, the garnishee (your employer or bank) is legally obligated to comply with the court's order.
- For Bank Accounts: If the writ is for a bank account, the bank will immediately freeze the funds in your possession at the time of service and up to one business day afterward. These funds are held for a specific period (typically around 20 days) during which you have the opportunity to contest the garnishment before the money is released to the creditor.
- For Wages: If the writ is for wages, your employer will begin withholding a portion of your paycheck. Under federal law, the maximum amount that can be garnished for most debts is the lesser of 25% of your disposable earnings or the amount by which your weekly disposable earnings exceed 30 times the federal minimum wage. The employer must continue these deductions until the judgment is fully satisfied or a new court order is issued.
The garnishee has 20 days to file an Answer with the court after receiving the writ, confirming they are withholding funds or property.
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The Debtor's Defense: Asserting Exemptions
Receiving a garnishment notice is not the end of the line. Florida law provides several critical exemptions designed to protect individuals from losing the income necessary for basic living expenses. However, these exemptions are not automatic; you must proactively assert them.
The most powerful protection for many Brevard County residents is the Head of Household wage exemption.
The Head of Household Exemption
Under Florida Statute § 222.11, if you qualify as the head of a household, your wages may be fully or partially exempt from garnishment.
To qualify as a "Head of Household" (also known as Head of Family), you must:
- Provide more than 50% of the financial support for a dependent. A dependent can be a minor child, a spouse, an adult child, or an elderly parent—anyone you have a legal or moral obligation to support. The dependent does not necessarily need to live with you.
- Your wages must be from personal labor or services (not passive income).
- You must not have explicitly waived the exemption in writing.
The exemption protects your income as follows:
- If your net weekly disposable earnings are $750 or less, your entire wages are fully exempt from garnishment.
- If your net weekly disposable earnings exceed $750, your wages are still fully exempt from garnishment so long as you did not agree to garnishment in writing.
The Claim of Exemption Process
To claim this (or any other) exemption, you must file a formal Claim of Exemption and Request for Hearing with the Brevard County Clerk of Court within 20 days of receiving the Notice of Garnishment. You must also mail a copy to the plaintiff's attorney and the garnishee (your employer).
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Proving Your Head of Household Status
If the creditor objects to your claim of exemption (which they often do to force a hearing), a court hearing will be scheduled. At this hearing, the burden is on you (the defendant) to prove you meet the head of household requirements.
Evidence you might need to present to the court includes:
- Tax Returns: Your federal tax returns (Form 1040) are primary evidence, as they list claimed dependents and household status.
- Pay Stubs and W-2s: To verify your income and demonstrate you are the primary financial provider.
- Proof of Paid Bills/Expenses: Bank statements, receipts, and canceled checks demonstrating you pay more than 50% of the dependent's living expenses (e.g., rent, utilities, groceries, medical bills).
- Affidavits: Sworn statements detailing your income and the dependent's support situation.
- Court Orders: Documentation relating to child or spousal support obligations, which clarify your support duties.
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What Happens When You Succeed?
If the court finds that you qualify for the head of household exemption, the judge will issue an order halting the garnishment.
- The employer will be instructed to stop withholding wages immediately upon receiving the court order.
- In some cases, the court may even order the return of wages that were improperly taken after you filed your claim of exemption.
- The garnishment process ends, and the creditor must find another, legal way to collect the debt (or potentially pursue non-exempt assets).
Navigating wage garnishments in Florida can be complex. If your wages or bank account have been frozen in Melbourne or elsewhere in Brevard County, it is crucial to act quickly and correctly. A consultation with an experienced Florida bankruptcy and debt defense attorney is the best way to ensure your rights are protected and you utilize all available exemptions effectively.
Bowin Law Group is Brevard's Hometown Law Group, serving Melbourne, West Melbourne, Palm Bay, Viera, Cocoa, Titusville, Merritt Island and the beaches.