At this point a typical non-lawyer may ask, what’s the trick? What are the magic words?
As in most other jurisdictions, Florida has done away with magic words. Florida Rules of Civil Procedure (Fla.R.Civ.P.) Rule 1.110(a) provides:
“Forms of Pleadings. Forms of action and technical forms for seeking relief and of pleas, pleadings, or motions are abolished.”The modern way, going back sixty years or so, is called notice pleading. The practice of notice pleading calls for brief, and specific, statements of relevant facts for each of the essential legal elements of a claim for relief. Still, there are court rules that govern this method.
Fla.R.Civ.P. Rule 1.110(b) provides, in part:
“Claims for Relief. A pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the ultimate facts showing that the pleader is entitled to relief . . . . “And, Fla.R.Civ.P. Rule 1.110(f) requires:
“Separate Statements. All averments of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all subsequent pleadings. . . . . “The first part of Rule 1.110 sets out the substance of a claim’s content as a, “plain statement of the ultimate facts showing that the pleader is entitled to relief.” The second part quoted shows the basic format is, “consecutively numbered . . . [and each] limited . . . to a statement of a single set of circumstances.”
Since the Florida Head of Family exemption is created by statute, the governing statutes are the first place to look to find the essential legal elements needed to make a valid claim. Sadly, the statutory language may not provide guidance for all situations. Researching the past decisions of Florida’s appellate courts may be necessary in some cases.
The most basic circumstance presents three essential elements:
- The person making the claim of exemption provides more than half the support for one or more children or other dependents, Florida Statutes 222.11;
- The money attached or garnished is due for the personal labor and services of the person making the claim of exemption, Florida Statutes 222.12, and;
- The person making the claim of exemption is the head of a family residing within the state of Florida, Florida Statutes 222.12.
As simple as this seems, there is ample room for countless complications which are not discussed in the Florida statutes. As examples of these possible difficulties:
- On the low end of the income scale, a working parent may receive various forms of government assistance in addition to working wages. How does this government assistance factor in to a “more than half the support” equation?
- A divorced parent may be entitled to receive support payments from the divorced spouse, which might be in arrears or not paid at all. Can a non-custodial parent who pays child support qualify for the exemption even if not living in the same household?
- If a family is a recent arrival in Florida from another state, and the original consumer debt and judgment arose in that other state, does the Florida exemption law apply? Are there any circumstances that would disqualify one from successfully claiming the exemption?
- What of non-family dependents or non-traditional family members who are dependent? Would one who supports a non-working same-sex partner qualify for the exemption?
The following page image shows what an actual claim of exemption might look like in practice, with numbered paragraphs and concise statements of facts. The first paragraph goes beyond the bare minimum of what is required by including the names, ages and relationships of the claimed dependents. I did it this way for a specific tactical reason which I shall discuss another time.
An eight-point case caption - a Florida example.
Is this all? Don’t be silly. There is more, but not now.