Under Florida Statute Section 222.11, wages received by a family’s primary breadwinner, otherwise referred to as a “head of family,” are generally exempt from garnishment or attachment by a judgment creditor, and thus not reachable. If a head of family’s wages are placed into a separate bank account, commonly referred to as a wage account, the wages received within the six (6) month period prior to the attachment or garnishment are typically exempt, provided that the funds deposited into the account can be traced and properly identified as the head of family’s wages.
However, the application of the law is not always black and white. For example, if a head of family is an independent contractor instead of an employee, or if the wages deposited into the account were commingled with funds from other sources, then the exemption does not apply. See, In re Schlein, 8 F.3d 745, 755 (11th Cir. 1993). If a dispute arises as to whether a head of family is an employee or an independent contractor, the court will consider a number of factors in making its determination, including:
(1) The existence of an employment contract for the performance by a person of a certain kind of work at a fixed price;
(2) The obligation to furnish necessary tools and supplies;
(3) The right to control the progress of the work;
(4) The time for which the person is employed;
(5) The method of payment, whether by time or by job; and
(6) Whether the work is part of the regular business of the employer.
See, In re Moriarty, 27 B.R. 73, 74 (Bankr. M.D. Fla. 1983).
Therefore, if you are concerned about garnishment or attachment by a judgment creditor, you cannot assume that your earnings are exempt solely because you are the head of family. If there is a dispute as to your employment status (i.e. whether you are an employee or independent contractor), a court will consider a number of factors in making the determination. In addition, if the wage exemption applies, the exemption is limited to 6 months worth of wages that are traceable and have not been commingled with funds received from any other sources. Opening a separate wage account and segregating the wages from all other funds will help protect the exemption status if a judgment creditor seeks collection through garnishment or attachment.