Determining the time of head of family status

[rebecca9]

What is the name of your state? Florida

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html

“222.11 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 $750 a week are exempt from attachment or garnishment.

(b) Disposable earnings of a head of a family, which are greater than $750 a week, may not be attached or garnished unless such person has agreed otherwise in writing.

…

(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.”



I am employed and a judgment debtor. My husband has not been working and has very little income (makes few hundred dollars per year by selling fruits). The creditor is not pursuing any collection procedure from me.



Now (in June 2022), if I move more of my salary (“additional money”), directly from my employer, to my retirement account, will that additional money be protected from the creditor if the creditor comes after me for collection in the future? I read some postings in this forum, which are very useful, and they indicate that if I am head of family then that additional money is protected (please help correcting me if I am wrong).



If the creditor comes for collection after few years from now (e.g., in 2025) then whether my head of family status as of now i.e., year 2022 (the time during which I moved this additional money to my retirement account) will be used to determine if that additional money is protected due to my head of family status, or my head of family status as of year 2025 (the time during which the creditor try to get that money) will be used to determine if that additional money is protected due to my head of family status?

 

[Taxing Matters]

What is the name of your state? Florida

If the creditor comes for collection after few years from now (e.g., in 2025) then whether my head of family status as of now i.e., year 2022 (the time during which I moved this additional money to my retirement account) will be used to determine if that additional money is protected due to my head of family status, or my head of family status as of year 2025 (the time during which the creditor try to get that money) will be used to determine if that additional money is protected due to my head of family status?

You quoted Florida's statute on wage garnishment. For that purpose, and most collection actions, your head of family status is determined at the time the collection action is to be taken, not the date the judgment was entered.

 

[rebecca9]

“your head of family status is determined at the time the collection action is to be taken, not the date the judgment was entered”

I am not concerned about when the judgment was entered. I am sorry for the confusion in my earlier question.


Let me make it clear:
The judgment was entered in 2019. I am moving “additional money” into my retirement account in 2022. Assume that the creditor started the collected action in 2025. At that time (in 2025), if the court determined that I am head of family from 2019 until 2023 (that is, court determined that I am head of family when I moved the additional money into my retirement account) but I am not head of family few years after I moved that money (I am not head of family during 2024-2025); then will that additional money (that I moved into my retirement account in 2022) be taken away (by the creditor) from the retirement account, once the creditor started the collection action (in 2025)?

 

[Zigner]

“your head of family status is determined at the time the collection action is to be taken, not the date the judgment was entered”

I am not concerned about when the judgment was entered. I am sorry for the confusion in my earlier question.


Let me make it clear:
The judgment was entered in 2019. I am moving “additional money” into my retirement account in 2022. Assume that the creditor started the collected action in 2025. At that time (in 2025), if the court determined that I am head of family from 2019 until 2023 but I am not head of family during 2024-2025; then will that additional money (that I moved into my retirement account in 2022) be taken away (by the creditor) from the retirement account, once the creditor started the collection action (in 2025)?

Let me try to say this differently:
The head of family status used to avoid collection actions is based on the status at the time those collection actions are undertaken. So, if collection actions are attempted in 2025, your status in 2022, 2023, and 2024 are entirely irrelevant.

 

[rebecca9]

A creditor can garnish the money from a retirement account in Florida, only if that money came to the retirement account by fraudulent transfer http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0726/0726.html.
If there is no fraudulent transfer, the money in retirement account is exempt from creditors: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.21.html



Assume that, in 2025 or some time in the future, the court determined that I am head of family during the years 2019-2023 (please correct me if the court does not determine whether or not I am head of family in the past year(s) when the money transfer took place). Hence, the money/salary I have with my employer in 2022 is except from creditor (because I am head of family during that year 2022 and the preceding years). Because of this exemption, the transfer of “additional money” into my retirement account in 2022 is not fraudulent transfer (fraudulent transfer happens, only if some nonexempt money is transferred). Hence it seems that the "additional money" cannot be garnished or attached by creditor.



I didn’t understand how the court can determine, in 2025 (or at any time), that the additional money I moved into my retirement account in 2022 (which was exempt from creditor in 2022, due to my head of family status, as explained above) can be garnished (no matter whether or not I am head of family in 2024-2025) . Could someone explain this?

 

[doucar]

This is a Hypothetical we have no way of knowing what evidence would be presented to the judge.

 

[adjusterjack]

My two cents worth. You are over-thinking this.

Let's say that your judgment creditor files for wage garnishment today. You receive the notice and you immediately file the form for exemption as head of the family. If the court accepts it, the garnishment is quashed.

If, tomorrow, you increase your contribution to your 401(k) going forward, your 401(k) is exempt from attachment until, and unless, the court rules that your increased contribution was a fraudulent transfer.

My opinion (subject to correction by lawyers) is that there is no fraudulent transfer because your wages are exempt as head of the family and your 401(k) is exempt by law. You are moving exempt money into exempt money.

 

[rebecca9]

Our joint IRS tax returns for the last 10 years or more show that my husband has almost no income (may be a couple of hundred dollars in some years). He has no job all these years. Cannot drive a car or vehicle (he has only learners permit, never completed road test) and has no vehicle on his name. Has been taking prescribed medicines for an illness for the last 10 or more years. We both live in same home. I have been doing job for more than 10 years and earning income from which we pay all our bills which include but not limited to: electricity, water, telephone, home rent, groceries, internet, etc.

We have a small house gifted by my in-laws when we married more than 15 years back, and it is on both our names (tenancy by entirety) and we rented it and make $150 (one hundred and fifty) monthly income which itself is tenancy by entirety.

Will these documents/evidences be enough to prove that I am head of family (Florida definition: “Head of family” includes any natural person who is providing more than one-half of the support for a child or other dependent http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html ), if and when the creditor tries to garnish my salary; or garnish, under fraudulent transfer, the “additional money” which I am now planning to move to my retirement account (once I make this move, every month, some additional money from my pay check will be credited into my retirement account)?

Note, my husband’s situation (financial, job, health, or anything described above), will not change any time in the future also.

 

[rebecca9]

Could some lawyer/member provide some feedback on this?

 

[adjusterjack]

Do you want a guarantee? Nobody here can give you one. Taxing Matters and Doucar are both lawyers.

If, at some future date, your creditor accuses you of a fraudulent transfer, that's when you'll have to raise a defense and find out if your money is at risk.

Right now all anybody can do is speculate and you've gotten some speculation already.

 

[rebecca9]

Thank you adjusterjack.

 

[rebecca9]

I received wonderful advice from this forum for my queries on head of family, much appreciated. I have few more questions therefore approaching this forum again.

“222.11 Exemption of wages from garnishment http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html :

(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 $750 a week are exempt from attachment or garnishment.
(b) Disposable earnings of a head of a family, which are greater than $750 a week, may not be attached or garnished unless such person has agreed otherwise in writing.
…
(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.”



My husband has almost no income (may be a couple of hundred dollars in some years). He has no job all these years. We both live in same home. I have been doing job for more than 10 years and earning income from which we pay all our bills which include but not limited to: electricity, water, telephone, home rent, groceries, internet, etc. We have a small piece of land in Florida (which may parents gifted to me and my husband during our marriage and it is listed as tenancy by entirety (TBE) with me and my husband and we make around 3000 dollars per year as lease from that, and this rent is also TBE (due to TBE nature, the land and rental income belongs to me and my husband, treating both of as an indivisible single entity, and it cannot be divided). I and my husband have been submitting joint IRS tax returns for the last more than 10 years and they demonstrate the above facts.


Whether I am qualified as head of family or not? For this I found some case law:

In re Frank James PARKER and Beverly Estes Parker, 147 B.R. 810 (Bankr. M.D. Fla. 1992), https://casetext.com/case/in-re-parker-86 the Bankruptcy Court held:


“The schedules indicate that debtor Frank James Parker is the primary source of support for he and his wife and that they live in Ponte Vedra Beach, Florida. Beverly Estes Parker's [wife] income is nominal and insufficient to sustain the family. Accordingly, debtor Frank James Parker qualifies as the head of a family residing in Florida.”


My situation is no different than Frank James Parker of the above case, in terms of qualifying as head of family. Is the above case law good enough (because it is from a bankruptcy court) to use and convince the judge in my favor that I am head of family, when the creditor tries to garnish or attach my salary?

 

[adjusterjack]

Your questions have already been answered. Unfortunately, you're just not getting it.

Let's try this another way. Maybe I can simplify things for you.

How much do you make a week gross?
How much do you take home per week after income tax withholding and social security withholding? Do not subtract 401(k) contributions.

Simple questions. Just need a dollar amount for each question. Today's figures, not last year, not next year, not 2525.

If you don't provide dollar amounts, I can't help you and I doubt that anybody else can.

 

[rebecca9]

My take home income is 1100 +/- per week after income tax withholding and social security withholding.

 

[Taxing Matters]

My situation is no different than Frank James Parker of the above case, in terms of qualifying as head of family. Is the above case law good enough (because it is from a bankruptcy court) to use and convince the judge in my favor that I am head of family, when the creditor tries to garnish or attach my salary?

I would cite the case if needed in a garnishment hearing, but a federal bankruptcy court opinion does not overrule state law in state law matters. In other words, if you aren't in bankruptcy the opinion is only good to the extent that the state court judge hearing your case considers it is persuasive. The state court judge will not be obligated to follow the bankruptcy court decision.