Chapter 77 of Florida Statute (2012), states that any person or entity that has sued to recover a debt or has obtained a judgment in any court against any person or entity has a right to a writ of garnishment. This is a handy instrument when you have sued and won, but the defendant refuses to pay you the amount ordered in the final judgment. With a writ of garnishment the plaintiff can recover their debt through any debt due to the defendant by a third person, for example: salary or wages owed by an employer, rental income, and bank accounts (checking, saving, trust accounts).
The requirements to obtain a writ of garnishment may vary between counties throughout the state of Florida; therefore, when filing for a writ of garnishment you must first check for the procedures followed at your local court. However, as a guideline, this is how to obtain a writ of garnishment in Florida. First, you must file a motion for writ of garnishment with the court where the action is pending, stating the amount on the judgment. Some judges will require a hearing, where they will hear arguments from both sides before making their decision; other judges may grant or deny the motion, without a hearing, and mail an order with his or her decision to both sides. Once a judge has granted your motion of writ of garnishment, then you file the following with the clerk of court:
- Final judgment awarding the plaintiff a debt against defendant
- Motion for writ of garnishment and order (granting the motion)
- Writ of garnishment
- Filing fee
Plaintiff will then receive the writ of garnishment signed by the judge, and must serve it on the garnishee (the third party). Additionally, the plaintiff must mail, by first class, a copy of the writ of garnishment, a copy of the motion of writ of garnishment, and, if the defendant is an individual, a Notice to Defendant of Right Against Garnishment of Wages, Money, and Other Property (found in Florida Statute §77.041) within 5 business days after the writ is issued or 3 business days after the writ is served on the garnishee. The garnishee then has 20 days after service to serve an answer on the Plaintiff. Then, within 5 days of receiving the garnishee’s answer or the time period the answer was due, the Plaintiff must mail a copy of the garnishee’s answer, and a notice advising the defendant that they have 20 days to move to dissolve the writ.
Service of the writ makes garnishee liable for all debts unless further action from the garnishee or defendant results in a court order relieving such debt. Therefore, after the documents are served by each party on the opposing party, the garnishee will either start making payments or set a hearing with the court to try to dispute the garnishment. For further specification on the process of a writ of garnishment read Chapter 77 of Florida Statute (2012) or contact our office.
[1] Florida Statute §77.0305, requires that a Continuing Writ of Garnishment be filed if salary or wages are to be garnished to satisfy a judgment.