Exemption of Non Head of Family Wages

It is well known that under Florida’s wage exemption statute , wages for the head of a family are exempt. What is less well known is the extent to which non head of family wages are also exempt. Prior to 1993, when Florida’s wage exemption statute was amended to its current version, the statute was a single paragraph which contained no protection from garnishment or attachment for the earnings of anyone other than a head of family. Although the current version of Florida’s wage exemption statute is commonly referred to as the “head of family” exemption, it, in fact, extends to individuals who are not the head of a family.

A plain reading of the Florida wage exemption statute reveals that varying amounts of earnings of an individual are exempt from attachment or garnishment under three distinct circumstances. The first circumstance is a head of family with weekly disposable earnings of less than or equal to $500.00; the second circumstance is a head of a family with weekly disposable earnings greater than $500.00; and the third circumstance is for a non head of a family.

In an opinion by Chief Bankruptcy Judge Paul G. Hyman, Jr., Judge Hyman analyzed Florida’s wage exemption statute and its application to non head of family wages. See,In re Weinshank, 406 B.R. 413 (Bankr. S.D. Fla. 2009). Prior to the Weinshank decision, there

Exemption of wages from garnishment

(1) As used in this section, the term:

(a) “Earnings” includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.

(b) “Disposable earnings” means that part of the earnings of any head of family remaining after the deduction from those earnings of any amounts required by law to be withheld.

(c) “Head of family” includes any natural person who is providing more than one-half of the support for a child or other dependent.

(2) (a) All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $500 a week are exempt from attachment or garnishment.

(b) Disposable earnings of a head of a family, which are greater than $500 a week, may not be attached or garnished unless such person has agreed otherwise in writing. In no event shall the amount attached or garnished exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. §1673.

(c) Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. §1673.

(3) Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings.

Fla. Stat. § 222.11 (2009).

appears to have been no case law determining whether the exemption provided for in § 222.11(2)(c) and (3) was available to a debtor who is not a head of family. Id. at 416.

In Weinshank, the issue before the Court was whether the Debtor, a single man who did not provide support for anyone other than himself, could exempt wages in his checking account as of the petition date pursuant to Florida Statutes § 222.11(2)(c) and (3). The Trustee argued that the § 222.11(3) exemption was not available to the Debtor because he was not a head of family. Judge Hyman disagreed with the Trustee and found the wage exemptions statute to be unambiguous and that nothing in the statute limited its application to situations involving only a “head of family.” Accordingly, Judge Hyman held that the wage exemptions statute exempts from attachment or garnishment, earnings of a person other than a head of family up to the limits established under 15 U.S.C. § 1673 . Id. at 417.

A common pre-bankruptcy practice is to advise head of family clients to open up a separate head of family wage account. Based upon the unambiguous language of Florida’s wage exemption statue, this practice should be extended to non head of family clients so they too can take advantage of the exemption.