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Can I qualify for head of household exemption if I'm divorced with two kids and make 45k, but my ex-husband makes 90k?

Miami, FL |

I cosigned a private student loan for my ex-brother in-law and he is defaulting on the loan. The lender is threatening to suit me in 30 days.

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Attorney answers 4

Posted

Yes, you can if you have minor children and your take home pay is less than $750 per week. You have to have a judgment entered against you first before you can claim the exemption. I suggest you hire an attorney. If you cannot afford one contact the University of Miami's law school to see if their legal clinic can help.

This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.

Asker

Posted

We are not divorced. We have been separated for the past year. Would I still qualify or do we need to be divorced?

Asker

Posted

I make a little over 750 a week but because I'm a teacher and I don't get paid in the summer. Would I still qualify?

Posted

Under Florida wage garnishment laws, so long as you are responsible for more than half of the support for a dependent, such as your children, you qualify for head of household. I disagree with the previous answer as to the $750 per week limit on the head of household exemption. A creditor can garnish the wages that exceed $750 per week only if the debtor consented to the garnishment. I have rarely seen a debtor consent to garnishment, so heads of household rarely are garnished in Florida if they assert their exemption.

Your ex-husband is not liable for the debt since it appears he did not co-sign.

If this is a federally backed student debt, all of these protections may be off the table. The Feds may be able to garnish up to 15% of your wages and can possibly take your income tax return.

Posted

Consult with a CPA regarding the Head of Household portion of your question. If you co-signed on the note, you can obviously be sued by the lender.

Posted

It is not about who makes more money. Typically, that is a pretty strong indicator as to whose wages/earnings can be garnished, but not always. Example: you earn $45k and your ex earns $90k, but he has remarried and is now supporting a new spouse and perhaps new kids and perhaps a family member such as a parent, so his $90k is spread out amongst a number of dependents.

Section 222.11(1)(c) makes this definition: "Head of family” includes any natural person who is providing more than one-half of the support for a child or other dependent.

So, the question isn't who makes more money, it is who provides >50% of the support for your children.

Also, please note that the Florida term is "head of family", not "head of household". Head of Household is an IRS tax filing status. Head of Family means something else.

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