Reading only the Florida's Head of Family exemption statute § 222.11, one might think in terms of two related exemptions; one for disposable income less than the statutory amount, which is exempt from garnishment, and another conditional exemption for disposable income greater than the statutory amount.
§ 222.11(2) currently provides, in part, as follows:
"(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 . . . . "The logic of this two-exemption characterization has definite pleading and proof implications. The most significant of these would be to put the debtor into the difficult position of proving a negative proposition: That there was no written agreement relinquishing the exemption over the statutory limit.
However, Usameribank, A Florida Corporation v. Richard Nelson Klepal (2011) makes it clear enough that Florida courts tend to characterize Section 222.11 as being a unitary wage exemption with the possibility of a partial waiver. Both the trial and appellate courts discussed the issues in terms of exemption and waiver, with Judge Whatley's dissenting opinion focusing upon the essential characteristics of a valid waiver.
When reading Usameribank v. Klepal, it is important to remember that the loan documentation in issue originated in 2007, and that Section 222.11(2)(b) was subsequently amended to include specific requirements for a valid waiver:
" . . . . The agreement to waive the protection provided by this paragraph must:
"1. Be written in the same language as the contract or agreement to which the waiver relates;
"2. Be contained in a separate document attached to the contract or agreement; and
"3. Be in substantially the following form in at least 14-point type:
"IF YOU PROVIDE MORE THAN ONE-HALF OF THE SUPPORT FOR A CHILD OR OTHER DEPENDENT, ALL OR PART OF YOUR INCOME IS EXEMPT FROM GARNISHMENT UNDER FLORIDA LAW. YOU CAN WAIVE THIS PROTECTION ONLY BY SIGNING THIS DOCUMENT. BY SIGNING BELOW, YOU AGREE TO WAIVE THE PROTECTION FROM GARNISHMENT.
"(Consumer’s Signature) (Date Signed)
"I have fully explained this document to the consumer.
"(Creditor’s Signature) (Date Signed)"The Usameribank v. Klepal opinion did not disclose the nature of the original loan involved. Whether is was a business loan or a consumer loan might have had some bearing upon the majority opinion. The law frequently holds business people to a higher standard of sophistication than it does consumers. However, the Florida legislature clearly opted to require full and detailed written disclosure of the exemption right being waived.