Question Presented
This office is responding to your request for legal advice regarding whether the agency
may garnish the Social Security benefits of Luis to pay for the legal fees incurred
by Wendy to secure child support from Luis.
Background
On December 8, 2011, the New Jersey Superior Court Chancery Division-Family Part for
Hudson County issued an Order granting Wendy’s request for child support from Luis
.
ANALYSIS
The Social Security Act (the Act) indicates Social Security benefits are generally
not subject to garnishment. 42 U.S.C. § 407(a). The Act does, however, provide an
exception to this general rule: Social Security benefits due to any individual shall
be subject to legal process brought by an obligee, to enforce the legal obligation
of the individual to provide child support. 42 U.S.C. §§ 666(a)(1), (b), 659(a), (h)(1)(A)(ii).
The Act defines the term “legal process” as any writ, order, summons, or other similar
process in the nature of garnishment issued by a court of competent jurisdiction.
42 U.S.C. § 659(i)(5); Programs Operations Manual System (POMS) GN 02410.200B. It may include, but is not limited to, an attachment, writ of execution, income execution
order, or wage assignment. See POMS GN 02410.200B. The Act also defines the term “child support” as the amounts required to be paid
under a judgment, decree, or order issued by a court for the support and maintenance
of a child. 42 U.S.C. § 659 (i)(2). The term “child support” under the Act may also
include “attorney’s fees.” Id.; see also POMS GN 02410.200E (“child support” may include attorney fees “if expressly made recoverable under a
garnishment order issued by a court of competent jurisdiction in accordance with applicable
State or local law”).
Here, the December 8, 2011 Superior Court’s Order awarding child support from Louis
results from legal process as defined by the Act and was issued by a court of competent
jurisdiction in accordance with New Jersey law. The Order states that Luis “shall
be responsible” for child support payments and Wendy’s attorney’s fees “to be paid
through Luis’s social security benefits.” The Order directing garnishment of Luis’s
Social Security benefits includes attorney’s fees incurred by Wendy in pursuit of
child support payments from him and, therefore, falls within the exception of the
Act noted above. Accordingly, Wendy may recover attorney’s fees through garnishment
of Luis’s Social Security benefits.
Conclusion
The Agency may garnish Luis’s benefits pursuant to the December 8, 2011 New Jersey
Superior Court Order.
Mary Ann Sloan
Acting Regional Chief Counsel, Region VIII
By: ___________________________
Jason P. Peck
Assistant Regional Counsel