Florida provides excellent protection for collection against marital property by presuming that the property is held as tenancies by the entireties. Tenancies by the entireties means that property is held by husband and wife jointly with rights of survivorship of 100% of the property without the ability to sever the property. Therefore, a creditor cannot partition any part of the property. This allows a debtor to shield assets held jointly with a spouse. A creditor has the right to challenge the presumption but the burden is on the creditor to demonstrate that the property is not held as tenancies by the entireties to satisfy a debt due by one spouse.
I recently had a non-resident client whose salary was garnished by a Florida court because his employer had an office in Florida and he had a judgment entered against him in Florida. We timely challenged the garnishment by filing a head of household claim of exemption. However, at the hearing on same, opposing counsel argued that the Florida head of household exemption does not apply to non-residents. The court disagreed reasoning that if a creditor can use Florida's garnishment statute against a non-resident, then a non-resident should be able to use the exemption set forth in the same statute as a defense and dissolved the writ of garnishment.