Is There A "Hardship Exemption" Under Florida Law?

Florida law has many laws protecting the debtor’s ability to provide for his family. Creditors cannot take a family homestead, and creditors cannot garnish the wages of a debtor who supports a spouse or children. A debtor may own a car to get to work provided the car is worth less than $1,000, and there is no prohibition about debtors using cars owned by their spouses. Other than the generous exemptions of Florida’s asset protection law there are no laws which exempt assets necessary for the debtor to maintain his current lifestyle or his job. Most debtors who are unable to support themselves or their families as a result of a creditor’s successful collection effort are eligible to file bankruptcy and discharge all their debts. After bankruptcy, a creditor cannot attack the bankruptcy debtor’s future wages or any assets the debtor acquires in the future.

I have been asked several times over the past years if debtors can assert a "distress" defense to creditors’ collection tactics. Most often, people ask whether they can reverse wage garnishment or car attachment if, as a result of the collection, the debtor suffers severe financial difficulty. Last week a caller asked if a judge would dissolve a wage garnishment because without all of his income he would be unable to pay his home mortgage. Another person asked if a court would order a judgment creditor to return an automobile the creditor took to satisfy a judgment because the debtor needed the car to work. The general answer is "no." There are no hardship defenses to collection.

posted by Jonathan Alper, bankruptcy and asset protection attorney, Orlando, Florida