You may be wondering if a joint bank account can be garnished in Florida?
Maybe your account has been garnished already or you’re planning on creating a joint account with someone else like your wife for asset protection.
Short answer: While a joint account can certainly be frozen during a garnishment proceeding, whether it can be garnished or not depends on the type of bank account and whom the judgment is against.
Types of Joint Bank Accounts And Whether Garnishable
There are a few different ways that a joint bank account can be set up. Depending on what you choose, this will determine if it can be garnished.
1. Tenancy by the Entirety
Tenancy by the Entirety (“TBE”) is a unique type of property ownership that’s only allowed with married couples. The spouses own the property as a single unit and have a 100% interest in the property.They also have the right of survivorship, so that if one spouse dies, the entire property transfers to the other.
Accounts owned by a husband and wife as TBE cannot be garnished for a judgment debt of only one spouse, with some exceptions such as by special creditors like the IRS who have their own statutes to seize property or instances of fraud. If the judgment is against both spouses, then the account is fair game.
Keep in mind, the account can still be frozen by the bank if served with a writ of garnishment. You’ll need to wait for either the court or creditor to release the account. You’ll also need to make sure to file your exemptions from garnishment and comply with the time periods set out in Chapter 77 of the Florida Statutes. Otherwise, this exemption can be waived.
Note: This section of my blog post assumes your tenancy by the entirety account is set up properly. Keep in mind, certain elements need to be met for an account to be considered TBE. However, Florida law has become more favorable now with bank accounts.
When a married couple holds funds in a joint bank account, there’s a rebuttable presumption that the account is held as TBE. This authority is reflected in section 655.79(1), Fla. Stat., which states, in part, “Any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.”
As mentioned in the statute, one exception to this presumption is if the terms of the account expressly disclaim that it’s held as tenancyby theentirety such as on the signature card.
You can also lose the tenancy by the entirety protection, for example, if you get divorced or your spouse passes away.
Tenancy in common is a form of joint property ownership where each owner (aka co-tenant) owns a separate fractional share, whether equal or unequal, of undivided property. Unless there is evidence to the contrary, the ownership interest is presumed to be equal.
Due to each owner having their own separate share, each of the owner’s individual interests are subject to the claims of creditors. As a result, a bank account held as tenancy in common is subject to garnishment to the extent of the judgment debtor’s interest in the account.
Property that was protected as tenancy by the entireties can become a tenancy in common when the spouses get divorced.
3. Joint Tenancy with Right of Survivorship
Joint tenancy with right of survivorship is another form of property ownership where the co-tenants must all have the same percentage ownership. Additionally, when one co-tenant passes away, their interest goes to the surviving joint tenant(s). This helps avoid probate.
However, just like tenancy in common, property that is held as a jointtenancy with right of survivorship can be garnished by a judgment creditor of one of the joint owners to the extent of their interest in the account in order to satisfy the judgment debt.
Depending on the way your bank account is set up, this will determine whether it is garnishable.
Normally, a tenancy by the entirety bank account cannot be garnished for the debt of one of the spouses (with some exceptions mentioned), although it can be frozen in the meantime until resolved. If the spouses have a joint judgment debt, then it can be garnished.
On the other hand, an account held as tenancy in common or joint tenancy with right of survivorship can normally be garnished by a judgment creditor of one of the owners to the extent of their interest in the account.
FAQs
Due to each owner having their own separate share, each of the owner's individual interests are subject to the claims of creditors. As a result, a bank account held as tenancy in common is subject to garnishment to the extent of the judgment debtor's interest in the account.
Are joint bank accounts protected from creditors in Florida? ›
The Type of Bank Account Matters and Florida Statute 655.79
Indeed, the type of account held by a husband and wife determines whether it can be garnished by a creditor of either. A tenancy by the entirety account belongs to neither party and, therefore, it cannot be garnished by a creditor of one spouse.
Can you garnish a joint bank account? ›
Your joint account may be garnished for that debt even if you did not owe that debt. Your account may be garnished whether or not you own it separately from your spouse.
What is exempt from garnishment in Florida? ›
Head of household is not the only exemption that can be used to stop a garnishment. For instance, exemptions to garnishments may also include social security benefits, welfare, workers' compensation, veterans' benefits, pensions, life insurance benefits, and disability income benefits.
Can money be taken from a joint account? ›
Each account owner can get a debit card, write checks and make purchases. Both account holders can also add funds or withdraw them from the account. The money in joint accounts belongs to both owners. Either person can withdraw or spend the money at will — even if they weren't the one to deposit the funds.
Can a debt collector garnish a joint bank account in Florida? ›
Accounts owned by a husband and wife as TBE cannot be garnished for a judgment debt of only one spouse, with some exceptions such as by special creditors like the IRS who have their own statutes to seize property or instances of fraud. If the judgment is against both spouses, then the account is fair game.
What type of bank account cannot be garnished? ›
Some sources of income are considered protected in account garnishment, including: Social Security, and other government benefits or payments. Funds received for child support or alimony (spousal support) Workers' compensation payments.
Can debt collectors go after joint bank account? ›
Learn about your rights. Creditors might be able to garnish a bank account (also referred to as "levying" the funds in a bank account) that you own jointly with someone else who isn't your spouse. A creditor can take money from your joint savings or checking account even if you don't owe the debt.
Can I sue someone for taking money from a joint account? ›
If your ex-partner takes money from your joint account or runs up debt on your joint credit card without your permission, you may be able to sue them in court. However, it can be difficult to win these cases. You should consult with an attorney to discuss your legal options.
Can a judgement against me affect my spouse in Florida? ›
If a judgment is against only you and not your spouse, your spouse is entitled to protect his or her interest in the property. Property that is held by a husband and wife is called tenancy by the entirety and cannot be divided.
To stop wage garnishment in Florida, a judgment debtor should, in most cases, take the following steps:
- Review the writ of garnishment to check for any procedural mistakes.
- File a Claim of Exemption to assert any applicable exemptions to the wage garnishment, such as the head of household exemption.
The most important exemption from creditors in Florida is the Florida homestead exemption. The homestead exemption is in the Florida Constitution. Florida's homestead law protects up to 1/2 acre of real property in a city and up to 160 acres in an unincorporated county from property liens and forced sale.
What happens if a defendant does not pay a judgment in Florida? ›
If the judgment debtor does not pay, you are entitled to get the sheriff to seize the judgment debtor's property. The seizing of property by the sheriff is called a levy.
Are joint bank accounts protected? ›
Most joint accounts are protected by the Financial Services Compensation Scheme (FSCS).
Are joint accounts considered assets? ›
There are six types of assets that are considered “non-probate assets.” These can bypass the cumbersome probate process, saving both time and money. They are: Brokerage or bank accounts held in joint tenancy, or with a transfer-on-death (TOD) or payable-on-death (POD) beneficiary. Retirement accounts (e.g. 401k, IRA)
Who owns the funds in a joint account? ›
If you have a joint bank account, any money within that account is split equally between the two names on the account.
Can a creditor take property that is jointly owned in Florida? ›
If you are married, any marital property held in both the husband and wife's name is exempt from the creditors of the other. You will have to file an affidavit with the court to claim this exemption however and this exemption cannot be fraudulent to simply try and protect the property from the creditors.
Are joint bank accounts part of an estate in Florida? ›
This avoids probate. Shared accounts between spouses. Florida probate laws give married couples the "right of survivorship" on jointly-held assets, meaning any property held in both spouses' names will pass to the remaining spouse without probate. Joint accounts.
