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Debtors' Rights In Florida: Claiming Your Exemptions From Judgments

Table of Contents

Your Home and Florida’s Homestead Exemption
Your Personal Property
Your Vehicle
Spousal Exemption for Jointly Held Property
Your Wages
Finding help

You can't go to jail for failing to pay a debt or a judgment. However, if you do not pay a debt or if a judgment is entered against you, this information can be reported to the credit bureau and made a part of your credit history. This information can be reported for up to seven years on your credit reports.

This pamphlet describes your right to claim certain exemptions when a judgment has been obtained against you.

JUDGMENTS: After a judgment is entered against you by the court, you are called a judgment debtor. A judgment is an order entered by a judge at the end of a lawsuit. A judgment lasts for up to 20 years. This means that the person who obtained the judgment can collect on it until it is fully paid, for up to 20 years after it is filed with the clerk and recorded. Interest accrues every year as set by the Comptroller of the State of Florida.

A creditor who obtains a judgment against you is called a judgment creditor. A judgment creditor can require you to attend a deposition and give information about your income and assets.

The court can require you to give written information or testimony about your income, assets, property, employer and Social Security number. If a judgment is entered against you by a court, your wages or bank account may be taken from you to pay the judgment. This is called garnishment and attachment.

Through a process called execution a creditor can collect money owed under a judgment. This may include the seizure of personal property. When this happens, a judgment creditor pays a bond to the local sheriff to seize personal property owned by a judgment debtor so that it can be auctioned and the proceeds applied to pay the judgment.

The garnishment law allows the judgment creditor to obtain a continuing writ of garnishment which orders your employer to deduct money from your paycheck until you have paid off the judgment.

Your Home and Florida’s Homestead Exemption

If you own the home you live in, your home is protected from all creditors except those holding a mortgage or lien on your residence. You can exempt or protect your home and up to one-half acre of land from any forced sale if you live in an incorporated area. This also applies to mobile homes. If you live in an unincorporated area, you can protect up to 160 acres as homestead property.

Under most circumstances, a lien cannot be placed on your home for a debt that has nothing to do with your home. However, creditors who loan you money to buy, improve, or repair your home may put a lien on your home. Nonetheless, if a creditor has a mortgage on your home no matter what the purpose for the mortgage is you are not protected by the homestead exemption.

To protect your home, an affidavit describing your home and claiming it as your homestead must be filed with the court. This is different from the homestead tax form you file with the county property appraiser every year. Florida Statute 222.01 provides the type of notice and affidavit you will need to file.

Your Personal Property

If you do not claim the homestead exemption described above, you have the right to claim a personal property exemption of up to $4,000 per person. Unless the judgment creditor has a lien or security interest in the property (for example a furniture loan) you can protect up to $4,000 of your personal belongings. Note that this exemption does not apply to child or spousal support debts.

If you own more than $4,000 worth of personal property, you can choose which property to protect. The personal property can include money held in a bank account.

Your Vehicle

You can also claim an exemption of up to $1000 of the value of your vehicle under Florida law. This means that your vehicle cannot be taken to satisfy a judgment unless the value of the car, less all debts for which the vehicle is collateral, is greater than $1,000.

If a judgment creditor or sheriff takes your vehicle under an execution and its value to you is less than the value that you claimed as exempt as above described, you can apply to the court for recognition of your exemption and request the return of your vehicle. Your affidavit of exemption should be filed with the court and the sheriff.

Combining Exemptions

You can combine the $1000 vehicle exemption, with the $4000 personal property exemption. In this case, for example, you would be able to claim a total exemption of $5000 for your vehicle.

Spousal Exemption for Jointly Held Property

If a judgment is only against you and not your spouse, your spouse is entitled to protect his or her interest in the property. Property that is held by a husband and wife is called tenancy by the entirety and cannot be divided. This means jointly held property is not subject to the claims of creditors of the husband or wife individually. This applies to real property as well.

The judgment debtor and/or the debtor's spouse must file an affidavit with the court and the sheriff to obtain the exemption and protect the property from the judgment creditor.

Similarly, another person who has an ownership interest in the property with you may file an affidavit showing the right of ownership and requesting the court to return the property. The judgment creditor may contest the claim of exemption and request a hearing.

IMPORTANT: Transfers of property that are fraudulent or are made solely to keep the property from creditors may cause the property to lose its exempt status.

Your Wages

Florida Head of Family Exemption

Head of family exemption: If a person makes $500 or less per week in net wages, and the person is a head of family, those wages are exempt from collection. A head of family is a person who provides more than one-half of the support for a child or other person. Wages in a bank account that belong to a head of family retain their protection from being seized for six months even if the wages are mixed with money from other sources.

If you agree in writing to allow wages to be taken to pay the debt, and you make more than $500 per week, you will not get this exemption. If a head of family does not agree in writing to allow the garnishment or attachment of wages, all the wages are exempt. You must file an affidavit with the court to declare your head of family status and protect your wages from being taken.

Federal Law

All persons, including those who do not qualify as a head of family, will still have the protection of federal law which limits the amount of wages that can be garnished. Garnishment cannot exceed more than 25% of your net wages or the amount that you take home that is more than 30 times the federal minimum wage per week, whichever is less.

Subject to these restrictions, a creditor can continue to garnish your wages under a continuing writ of garnishment until the judgment is paid in full.

Other Exemptions

All professionally prescribed health aids used by you or your dependents are exempt from being taken by creditors. Other types of income, including Social Security benefits, workers compensation, unemployment benefits, disability benefits, Veteran's benefits and retirement benefits are exempt from garnishment. Pensions, 401K plans, life insurance proceeds, college savings funds, medical savings accounts and earned income credits from your taxes are also exempt from collection.

Procedure for claiming your exemptions

Garnishment situations: You may claim your exemptions by filing an affidavit with the court describing the exemption and your claim to it. Your affidavit must also be sent to the judgment creditor and any attorney for the judgment creditor. The judgment creditor must then file an affidavit with the court within two days to challenge your exemption. If the judgment creditor doesn't object by filing an affidavit, you can ask the court for a hearing to stop the garnishment and have your exempt wages returned to you. Notice of the hearing must be given to the judgment creditor.

Under current Florida law, if your wages or bank accounts are going to be garnished, after a judgment has been entered, you will not receive any notice until after the wages have already been withheld or, a hold placed on your bank account. The judgment creditor must send you a copy of the writ of garnishment, a copy of the answer filed by your employer or bank and a notice telling you about your right to request that the court stop the garnishment or execution.

Finding help

If you need assistance with establishing your exemptions to protect your income or property, please contact your local legal services or legal aid office or a private attorney who practices in consumer law. Forms and instructions for asserting your exemptions are available free of charge from your local legal services or legal aid office.

Bankruptcy: Bankruptcy may be another option for you. Information about your rights in bankruptcy is provided in Bankruptcy, a pamphlet available from The Florida Bar.

[Revised: 9/10]