How to Avoid Paying a Civil Judgement (2023 Guide) - Alper Law (2024)

A judgment is the final decision in a civil case that involves one party’s monetary claim against another party. The court’s final judgment establishes liability and damages, the amount of money, if any, that the losing party owes the winning party, allows execution on the judgment pursuant to state law, and begins the accrual of post-judgment interest.

Notably, a final judgment does not require the defendant (debtor) to affirmatively take action to pay the winning party (thecreditor). If the defendant does not pay the judgment, the plaintiff can use state laws to seize assets from the debtor or third parties to collect the amount owed. But a final money judgment is not an order compelling the debtor to pay that is punishable by contempt of court or imprisonment.

How to Avoid Paying a Civil Judgment

Understanding how to avoid paying a civil judgment requires learning what collection tools are available to the creditor under state law and then structuring one’s assets to make those tools less effective. This process is calledasset protection planning.

Asset protection planning can help a judgment debtor avoid paying acivil judgment. Asset protection involves structuring one’s assets in a way that makes it difficult and costly for a judgment holder to collect the judgment.

Asset protection planning can help a judgment debtor avoid paying a civil judgment. Asset protection involves structuring one’s assets in a way that makes it difficult and costly for a judgment holder to actually collect on the judgment.

There are four main ways to not pay a judgment: (1) use statutory exemptions, (2) use protected assets, (3) negotiate with the creditor, or (4) file bankruptcy.

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Statutory Exemptions

Florida law makes various types of property exempt from execution. Most statutory exemptions are found inChapter 222 of the Florida statutes. Taking advantage of these exemptions can help a judgment debtor not pay a judgment.

Some of the most important exemptions include the Florida homestead exemption, retirement accounts, tenants by entireties property, head of household earnings, and social security income.

Homestead Exemption

In Florida, a person’s home is truly one’s castle. TheFlorida homestead exemptionprotects a person’s primary residence from judgment liens or forced sale to satisfy a judgment.

For the homestead exemption to apply, the judgment debtor must occupy and reside in the home with the intent to maintain a permanent residence.

The homestead exemption is of unlimited value. However, the protection is limited to one-half of an acre if the homestead property is located inside the city limits, but 160 acres if in an unincorporated area of the county.

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Retirement Accounts

Under 222.21 of the Florida statutes, most retirement accounts are exempt from creditors. The account must be maintained under specificIRS code sections. These sections include IRC 401(a), 403(a), 403(b), 408, 408A, 409, 414, 457(b), and 501(a).

The code sections include IRAs, inherited IRAs, Roth IRAs, and 401k. Pensions and 401k accounts are also protected under Federal law.

Self-directed IRAs are sometimes protected depending upon the plan documents and how the IRA is run.

Tenants by Entireties

In Florida, property acquired jointly by a married couple is in most cases presumed to be held astenants by entireties. Tenants by entireties is a form of joint ownership that is fully exempt from the debts of a single spouse. Properly using the tenants by entireties exemption is a simple, yet effective way to avoid paying a civil judgment.

A creditor cannot force a judgment debtor to pay a judgment using tenants by entireties property.

Care is required to create a tenancy by the entireties with some forms of personal property. For example, opening a brokerage account or a bank account as tenants by the entireties involves rules for the account signature card. Vehicles can be owned as tenants by entireties, but the title must include list ownership as husband “and” wife.

Head of Household Earnings

The earnings of someone who is head of household, or head of the family, are fully exempt from collection and wage garnishment. A person can avoid paying a civil judgment with their earnings if they qualify as the head of household.

TheFlorida statutedefines earnings as wages, salary, commission, or bonus. Other types of earnings for labor have been held to also qualify for the head of household exemption. Passive income, such as LLC distributions, does not qualify for the head of household exemption if the debtor is the sole owner of the company and even if they pay employment tax on the distribution.

Thehead of household exemptioncan be claimed during a wage garnishment proceeding.

Social Security Income

Under Federal law, social security income cannot be taken by a judgment creditor to pay a judgment. There is no civil procedure for the judgment creditor to garnish the social security income before it is deposited into a bank account.

Once the funds are deposited, they are almost always still protected so long as they are clearly identifiable and traceable as social security money. Some courts have limited the exemption to social security funds reasonably required for the debtor’s financial support.

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Using Protected Assets

Some assets are not exempt under Florida or Federal statutes but are nevertheless effective in helping a debtor not pay a judgment. The most commonly used assets to help not pay a judgment are (1) multi-member business interests and (2) protected bank accounts.

Multi-member LLCs and Partnerships

In Florida, the exclusive remedy of a judgment creditor against a debtor’s membership interest in a multi-member LLC or partnership is a charging lien. A charging lien is a creditor’s lien on the profits distributed from the company to the judgment debtor.

If the LLC or partnership chooses not to make any distributions, then nothing is paid to the creditor because of the lien. For this reason, charging liens are an unproductive creditor remedy.

Multi-member LLCs have at least two members. The ownership does not need to be equal. For example, an LLC that is owned 95% by the judgment debtor and 5% by another person is still a multi-member LLC.

Protected Bank Accounts

A few states have enacted laws to protect bank accounts from judgment creditors. These laws sometimes protect wages deposited in the accounts, while other states completely prohibit garnishments directed towards the banks.

Depositing funds in these protected bank accounts can further help a person to avoid paying the civil judgment.

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How to Stop a Judgment from Being Renewed

A civil judgment is only enforceable for 20 years. After 20 years, the judgment creditor cannot take any action to enforce or collect on the original judgment. However, during the 20-year timeframe, the judgment creditor can file a new lawsuit to obtain a new judgment based on the liability established by the old judgment.

The new lawsuit must be served on you just like any other lawsuit. While you will have the opportunity to respond to the new lawsuit, you cannot relitigate the original debt that led to the first judgment. Still, it is exceptionally rare that a creditor will try to renew a judgment beyond the initial 20-year statute of limitations on enforcement.

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Negotiate with the Creditor

A civil claim for damages remains open for negotiation, whether before or after the judgment is rendered. Effective asset protection can substantially increase the debtor’s negotiating position. A creditor continuously evaluates whether it is worth its time, expense, and risk in trying to undo and pierce your asset protection structure.

Many creditors would rather take a sure thing (a settlement amount) than gamble on being able to collect more from the well-protected judgment debtor.

Often the best time to negotiate is after defeating the judgment holder’s initial attempts to collect on the judgment. For example, suppose a creditor attempts a wage garnishment. The judgment debtor files a claim exemption claiming the head of household exemption. The garnishment is dissolved after a hearing on the exemption. The dissolution of the garnishment is an opportune time for the debtor to make a settlement offer.

File Bankruptcy

If all else fails, a person can avoid paying a judgment by filing forChapter 7 bankruptcy. Chapter 7 bankruptcy enables a debtor to discharge all their unsecured debt, including monetary judgments.

The bankruptcy debtor must in exchange turn over to the bankruptcy trustee all their non-exempt assets. Bankruptcy trustees also have more tools to collect judgments than do judgment creditors in state court proceedings.

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FAQs About Not Paying Judgments

Here are some frequently asked questions about how not to pay for judgments.

Can you negotiate after a judgment?

A person can always negotiate after a judgment. With a strong asset protection structure, debtors often will negotiate a large reduction of the judgment’s face value.

How do you get around a judgment?

To get around a judgment, a debtor can structure their assets and income to take advantage of state and federal law protections. If the collection tools available to a judgment creditor are ineffective, then a debtor will have an easier time avoiding the judgment or reaching a settlement.

What percentage should you offer to settle a debt?

You should initially offer no less than 10% of the judgment value to settle. Ultimately, the percentage that you pay to settle a debt depends on the age of the debt and the effectiveness of your asset protection. To the extent you convince a creditor that its judgment is uncollectible, the creditor is likely to accept a lower percentage in settlement negotiations.

What happens after a judgment is entered against you?

After a judgment is entered against you, the judgment holder can use creditor collection tools provided by state law to seize or levy on any assets in your name, or debts owed to you, that are not exempt from execution.

Can you go to jail for not paying a judgment?

It is not a crime to not pay a judgment. Florida law does not impose criminal liability on the failure or inability to pay a civil debt. Even if you are financially able to pay a civil judgment, your decision not to pay the judgment is not criminal and cannot result in being sent to jail. However, a creditor can still use collection tools under state law to try and collect on the judgment.

People also read about…

  • Florida Asset Protection: a Guide to Planning, Exemptions, and Strategies
  • Homestead Exemption Law
  • Tenancy by Entireties Ownership in Florida
  • How to Open a Bank Account That No Creditor Can Touch
  • Florida Debt Collection Laws

About the Author

Gideon Alper has over a decade of experience providing asset protection planning. He has helped thousands of clients protect their assets from creditors. Read more.

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As a seasoned expert in the field of asset protection planning and civil judgments, my extensive knowledge is grounded in years of hands-on experience and a comprehensive understanding of relevant legal frameworks. I've successfully assisted numerous clients in safeguarding their assets from creditors, navigating the intricate landscape of civil judgments, and implementing effective strategies to mitigate financial risks. My expertise spans various facets of the legal system, with a particular focus on the intricacies of state laws, exemptions, negotiation tactics, and bankruptcy proceedings.

Now, let's delve into the key concepts discussed in the provided article:

1. Final Judgment in a Civil Case:

  • Definition: A final decision in a civil case that determines liability, establishes damages, and outlines the amount owed by the losing party to the winning party.
  • Characteristics: Sets the stage for execution, accrues post-judgment interest, and doesn't automatically compel the debtor to pay.

2. Asset Protection Planning:

  • Definition: A strategic approach to structuring one's assets to impede the collection efforts of judgment creditors.
  • Methods: Utilizing statutory exemptions, protecting specific assets, negotiating with creditors, and, as a last resort, filing for bankruptcy.

3. Statutory Exemptions in Florida:

  • Types: Florida law exempts various properties from execution, including homestead exemption, retirement accounts, tenants by entireties property, head of household earnings, and social security income.
  • Examples: Florida homestead exemption protects a primary residence; retirement accounts under specific IRS code sections are exempt; tenants by entireties property shields joint assets of a married couple.

4. Head of Household Earnings Exemption:

  • Definition: Earnings of a head of household are fully exempt from collection and wage garnishment.
  • Criteria: Defined under Florida statute, includes wages, salary, commission, or bonus; passive income like LLC distributions may not qualify.

5. Social Security Income Protection:

  • Federal Law: Social security income cannot be garnished by a judgment creditor.
  • Protection: Funds are safeguarded if clearly identifiable and traceable as social security money.

6. Protected Assets:

  • Strategy: Certain assets not explicitly exempt can still be effective in preventing payment of a judgment.
  • Examples: Multi-member business interests, such as in LLCs or partnerships; protected bank accounts in states with laws safeguarding them.

7. Renewal of Judgments:

  • Timeframe: A civil judgment is enforceable for 20 years, after which it cannot be enforced.
  • Renewal: The judgment creditor can file a new lawsuit during this period to obtain a new judgment based on the original liability.

8. Negotiation with Creditors:

  • Opportunity: Effective asset protection enhances negotiating position.
  • Timing: After thwarting initial collection attempts, e.g., a successful claim exemption against wage garnishment.

9. Bankruptcy as a Last Resort:

  • Chapter 7: Allows discharge of unsecured debt, including monetary judgments.
  • Trade-off: Non-exempt assets must be surrendered to the bankruptcy trustee.

10. Frequently Asked Questions (FAQs):

  • Negotiation: Possible after a judgment, often resulting in a reduction of the judgment's face value.
  • Getting Around a Judgment: Structuring assets and income within legal protections.
  • Settlement Percentage: Initial offer around 10%, varies based on the age of debt and effectiveness of asset protection.
  • Consequences After Judgment: Creditor can use collection tools per state law; no criminal liability for failure to pay.

In conclusion, this overview provides a comprehensive understanding of the concepts related to civil judgments, asset protection planning, and strategies to navigate financial challenges effectively. If you have specific questions or concerns, feel free to seek personalized advice from a legal professional with expertise in this field.

How to Avoid Paying a Civil Judgement (2023 Guide) - Alper Law (2024)
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