The purpose of this memorandum is to respond to your request for a legal opinion asking
whether the Social Security Administration (SSA) can comply with a Texas court order
of income withholding of Social Security benefits for spousal maintenance. As we explain
further in our opinion, while the Social Security Act uses the term “alimony,” Texas
uses the term “spousal maintenance” to describe payments made from one spouse to another
upon the dissolution of a marriage. You asked whether Texas law had changed since
2007, when we issued an opinion finding that SSA could not honor a Texas court order
of income withholding of Social Security benefits for spousal maintenance. We conclude
that, effective September 1, 2011, Texas law changed and now permits a Texas state
court to order income withholding of a number holder’s Social Security benefits for
spousal maintenance. However, as discussed further below, because the change in Texas
law does not apply retroactively, SSA cannot honor the instant order for spousal maintenance.
BACKGROUND
On January 3, 2006, the 318th Judicial District Court in Midland County, Texas issued
an Order of Income Withholding for Spousal Maintenance in the divorce suit styled
In the Matter of the Marriage of Earnestine and Leroy, No. FM 43,741. The order directed Leroy ’s (number holder) employer to withhold
a monthly sum from Earnestine’s disposable earnings for spousal maintenance. Earnestine receives Title II retirement benefits.
On August 3, 2007, we issued an opinion, addressing your question of whether SSA could
honor the January 3, 2006, Order and permit garnishment of the number holder’s Title
II benefits. The evidence submitted with this opinion request does not contain a copy
of the January 2006 Order, but our August 2007 opinion states that the January 2006
Order directed “any employer of Leroy to withhold monthly amounts for spousal maintenance.” See OGC Memorandum regarding Order of Income Withholding for Spousal Maintenance, In
the Matter of the Marriage of Earnestine and Leroy – REPLY (August 3, 2007). Thus, the January 2006 Order did not specifically order
the garnishment of Title II Social Security benefits. However, Texas law defines an
“employer” to include the United States or any other entity that pays or owes earnings
to an individual. See Tex. Fam. Code Ann. § 101.012. Under Texas law, “earnings” includes a payment made
under a disability or retirement program. Id. at § 101.011. Given these provisions, our August 2007 opinion concluded that, because
the agency pays “earnings” to the number holder in the form of retirement benefits,
the agency was considered the number holder’s “employer.” See OGC Memorandum regarding Order of Income Withholding for Spousal Maintenance, In
the Matter of the Marriage of Earnestine and Leroy – REPLY (Aug. 3, 2007). We have reached the same conclusion in both prior and subsequent
opinions. See, e.g., OGC Memorandum regarding Garnishment of Social Security Benefits for Child Support
in Texas Using a Judicial Writ of Withholding pursuant to Tex. Fam. Code Ann. §§ 158.103-106
(Mar. 18, 2011); OGC Memorandum Regarding Proper Service of Income Withholding Orders
on the Social Security Administration – REPLY (Jan. 9, 2007). However, we also note
that the waiver of sovereign immunity permitting the withholding of Social Security
benefits to enforce an individual’s legal obligation to provide child support or alimony
does not apply to Title XVI Supplemental Security Income payments. See 5 C.F.R. § 581.104(j). Thus, only Title II benefits may be garnished if state law
permits. See OGC Memorandum regarding Order of Income Withholding for Spousal Maintenance, In the
Matter of the Marriage of Earnestine and Leroy – REPLY (August 3, 2007).
We interpreted Texas Family Code Ann. § 8.055 and determined that, under the law in
2007, Texas state law precluded such withholding. See id., p. 2. Thus, SSA could not honor the Midland County Court’s Order of Income Withholding
for Spousal Maintenance.
On November 26, 2007, at Earnestine’s request, the Midland County Court issued a second Order of Income Withholding for
Spousal Maintenance. Earnestine requested that the court reissue this order on December 22, 2010. Thus, the November
26, 2007, order is the most recent order for spousal support in this matter.
On May 5, 2011, Earnestine’s attorney sent a letter to SSA requesting a status update on whether SSA would comply
with the Midland County Court’s Order of Income Withholding for Spousal Maintenance. Based
on OGC’s August 2007 opinion, on June 8, 2011, SSA issued a letter to Earnestine’s attorney reaffirming SSA’s position that Texas law precluded income withholding
of the number holder’s benefits for spousal maintenance. On June 17, 2011, and August
12, 2011, Earnestine’s attorney submitted letters to the Midland Field Office disagreeing with SSA’s position,
arguing that Texas state law no longer precluded income withholding of the number
holder’s benefits for spousal maintenance and referencing recent amendments to Tex.
Fam. Code Ann. § 8.055. Below, we analyze the current state of Texas law on this issue.
DISCUSSION
Generally, the Social Security Act (Act) precludes garnishment of benefits to satisfy
legal obligations. Section 407(a), title 42, United States Code, expressly provides
that “[t]he right of any person to any future payment under this title shall not be
transferable or assignable, at law or in equity, and none of the moneys paid or payable
or rights existing under this title shall be subject to execution, levy, attachment,
garnishment, or other legal process.” 42 U.S.C. § 407(a); 42 U.S.C. § 1383(d)(1);
20 C.F.R. § 404.1820(a). However, effective January 1, 1975, the United States consented
to withholding certain benefits (including, e.g., Social Security benefits) to enforce
an individual’s legal obligation to provide child support or alimony. 42 U.S.C. §
659(a). Thus, subject to the following rules, courts may order garnishment of Social
Security benefits to enforce an individual’s legal obligation to provide alimony.
See 42 U.S.C. § 659(a), (h)(1)(A)(ii)(II); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b);
Program Operations Manual System (POMS) GN 02410.200A. SSA will only withhold benefits for alimony when 1) it receives legal process that
a court clearly issued to enforce an obligation to pay alimony; and 2) state law allows
withholding of such benefits. 42 U.S.C. § 659(a); 5 C.F.R. § 581.103(c)(1); 20 C.F.R.
§ 404.1820(b).
Legal process is defined as “any writ, order, summons, or other similar process in
the nature of garnishment,” directed to a governmental entity, This provision is silent
as to whether “directed to” should be narrowly construed as requiring that the order
be specifically addressed to the governmental entity, or whether the order must only
be properly served on a governmental entity. However, other federal regulations indicate
that “where the legal process is directed to, and the purpose of the legal process
is to compel a governmental entity which holds moneys which are otherwise payable
to an individual to provide child support of make alimony payments, the legal process
need not expressly name the governmental entity as garnishee.” 5 C.F.R. § 581.202(a). This
is consistent with the statutory language noting that each governmental entity consents
to be treated as a “private person” with respect to notice of an order to enforce
support obligations. See 42 U.S.C. § 659(b); see also Lang v. SSA, 612 F.3d 960, 965-966 (8th Cir. 2010) (noting the same and rejecting agency’s arguments
that the federal rules of civil procedure should apply to service of process for matters
falling under 42 U.S.C. § 659). Thus, while 42 U.S.C. § 659 requires only a limited
waiver of sovereign immunity, it appears that sovereign immunity cannot be exercised
in the event that the order does not expressly name a specific governmental entity
as garnishee. We have noted in prior opinions that SSA specifically defers to state
law to determine whether service of a garnishment order, such as an order for income
withholding, is proper. See Updates on State Law on Proper Service of Garnishments and Income Withholding Orders
– REPLY (May 25, 2011) (citing Program Operations Manual System (POMS) GN 02410.205). To achieve proper service of an income withholding order, the order must be served
on the employer by the clerk of the court by certified or registered mail, return
receipt requested. See Tex. Fam. Code Ann. § 8.154(b). A copy of an order for income withholding may also
be served upon a subsequent employer by any person authorized to file a notice of
application for a writ of withholding – such as the obligee – provided that the copy
is delivered via certified mail. See Tex. Fam. Code Ann. §§ 8.251, 8.267(a). Thus, the November 26, 2007 Order of Income
Withholding was properly served upon SSA if it were served either by the clerk of
court for Midland County by certified or registered mail, return receipt requested,
or by Earnestine by certified mail. See Tex. Fam. Code Ann. §§ 8.154(b), 8.251, 8.267(a). We do not have sufficient information
regarding service to determine whether the November 26, 2007 Order of Income Withholding
was properly “directed to” SSA. However, because we conclude that the 2007 version
of Texas law applies to this Order, we conclude that SSA cannot honor the November
26, 2007 Order regardless of whether service was proper. and issued by either (1)
a court of competent jurisdiction, (2) an authorized official pursuant to an order
of a court of competent jurisdiction or pursuant to state or local law, or (3) a state
agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5);
5 C.F.R. § 581.102(f). Because a Texas court issued the November 26, 2007 Order, we
look to Texas law to determine whether this order constitutes legal process. See 42 U.S.C. § 659(a).
Texas uses the term “spousal maintenance” instead of alimony to define an award of
periodic payments from the future income of one spouse for the support of another
spouse in a suit for the dissolution of a marriage. See Tex. Fam. Code Ann. § 8.001. Thus, an order to withhold income for “spousal maintenance”
is an order issued to enforce an obligation to pay alimony. See Tex. Fam. Code Ann. § 8.051 (stating that, in a suit for dissolution of a marriage,
a court may order spousal maintenance); see also Tex. Fam. Code Ann. § 8.101 (“a court may order that income be withheld from the
disposable earnings of the obligor”). A Texas district court, a court of competent
jurisdiction to issue such orders, issued the November 26, 2007 Order. Tex. Fam. Code
Ann. § 1.002 (for the purposes of the family code, “court” means a district court).
Accordingly, the November 26, 2007 Order constitutes legal process under the first
prong of 42 U.S.C. § 659(a).
We next look to the second prong of 42 U.S.C. § 659(a), whether Texas state law allows
withholding of a number holder’s Social Security benefits for spousal maintenance.
We conclude that, effective September 1, 2011, Texas state law permits withholding
of Social Security benefits for spousal maintenance. However, the Texas Legislature
specifically determined that the change in the law applies only to a proceeding for
spousal maintenance that commenced “on or after the effective date” of this change,
September 1, 2011. Thus, SSA can only honor a Texas order for income withholding
if it stems from a proceeding for maintenance commenced after September 1, 2011.
Section 8.055 of the Texas Family Code discusses the amount of maintenance a Texas
court may order withheld to pay spousal maintenance. In August 2007, section 8.055
allowed a Texas court to order spousal maintenance requiring a number holder to pay
the maximum of either a $2,500 lump sum or 20 percent of the number holder’s average
monthly gross income. See Tex. Fam. Code Ann. § 8.055 (Vernon 2007). Section 8.055 defined “gross income”
as those resources defined in Tex. Fam. Code § 154.062. See id at § 8.055(c) (2007). Section 154.062 addresses child support obligations and stated
that the resources used to calculate an obligor’s child support liability included
Social Security benefits. Tex. Fam. Code Ann. § 152.062(b) (Vernon 2007). However,
section 8.055 also included a separate provision stating that “Social Security benefits
and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007) (emphasis added). Thus, in 2007, the Texas Legislature included
Social Security benefits in the definition of “gross income” to calculate the amount
that could be withheld for spousal maintenance payments, but specifically excluded
Social Security benefits from spousal maintenance. See id. at §§ 8.055(c), 152.062(b) (2007).
Although these provisions appear contradictory on their face, the Texas Legislature
specifically directed that “Social Security benefits and disability benefits . . .
are excluded from maintenance.” See id. at § 8.055(c) (2007). Thus, the plain language of the statute isolated Social Security
benefits and specifically excluded them from “maintenance.” See id. In Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 479 (Tex. 2001), the Texas Supreme Court recognized the basic rule
of statutory construction that it enforces the plain meaning of an unambiguous statute.
Given that the statute did not discuss whether Social Security benefits should be
excluded from the calculation of maintenance, we accepted the plain meaning of the statute, as the Texas Legislature
enacted, as intending to exclude Social Security benefits from spousal maintenance.
Accordingly, we determined in 2007 that Social Security benefits were specifically
excluded from court-ordered spousal maintenance. See OGC Memorandum Regarding Order of Income Withholding for Spousal Maintenance, In
the Matter of the Marriage of Earnestine and Leroy– REPLY (August 3, 2007).
Effective September 1, 2011, however, the Texas Legislature amended section 8.055
to include a separate definition of gross income used specifically for the purpose
of calculating the amount of spousal maintenance a court may order, rather than relying
on the child support provisions in section 154.062. Compare Tex. Fam. Code Ann. §
8.055 (Vernon 2011), Tex. Fam. Code Ann. §§ 8.055, 154.062 (Vernon 2007). Section
8.055 now states that gross income includes: all wage and salary income; interest,
dividends, and royalty income; self-employment income; net rental income; and all
other income actually being received, including severance pay, retirement benefits,
pensions, trust income, annuities, capital gains, unemployment benefits, interest
income from notes, gifts and prizes, maintenance, and alimony. Id. at § 8.055(a-1)(1). The provision states that gross income does not include: return
of principal or capital; accounts receivable; benefits paid in accordance with federal
public assistance programs; benefits paid in accordance with the Temporary Assistance
for Needy Families program; payments for foster care of a child; Department of Veterans
Affairs service-connected disability compensation; supplemental security income (SSI), social security benefits, and disability benefits; or workers’ compensation benefits. See id. at § 8.055(a-1)(2) (emphasis added). Thus, while the statute excludes the calculation of a number holder’s gross income for purposes of determining the amount the number
holder must pay in spousal maintenance, it does not forbid a court from ordering income
withholding of a number holder’s Social Security benefits Of course, we note that
the court did not specifically withhold “Social Security benefits” in its order. It
did, however, order the number holder’s “employer” to withhold a portion of the number
holder’s “earnings” for spousal maintenance. As discussed above, Texas law defines
an “employer” to include the United States or any other entity that pays or owes earnings
to an individual, and defines “earnings” to include a payment made under a disability
or retirement program. See Tex. Fam. Code Ann. § 101.011, 101.012. Thus, the court’s order directs the agency
to withhold the number holder’s Social Security benefits for spousal maintenance.
for spousal maintenance. See id. Our conclusion is consistent with the Texas statutory provisions governing income
withholding for spousal maintenance. A Texas court may properly order income withholding
of disposable earnings for spousal maintenance or any arrearages for past-due spousal
maintenance. Tex. Fam. Code Ann. §§ 8.101, 8.263. Disposable earnings may include
payments made under a disability or retirement program, such as Social Security benefits. Tex.
Fam. Code Ann. §§ 101.010, 101.011. Thus, reading these provisions together, Texas
law states that, while a court may not use a number holder’s social security benefits
when calculating the total amount of spousal maintenance a number holder must pay
(gross income), it may order withholding of an individual’s Social Security benefits
to enforce its order (disposable earnings). See Tex. Fam. Code Ann. §§ 8.055, 8.101. We were unable to locate any case law further
elaborating on these provisions. Accordingly, section 8.055 is now silent as to whether
Social Security benefits are specifically withheld from all maintenance. If any prior
ambiguity or contradiction existed, the Texas Legislature has now deleted the plain
language of the statute upon which our previous opinion relied. Therefore, we conclude
that, effective September 1, 2011, Texas state law permits income withholding of a
number holder’s Social Security benefits for spousal maintenance.
However, we turn now to the question of whether the change in Texas law applies retroactively
to the November 26, 2007 Order and conclude that it does not. The 2011 legislative
bill amending the Texas Family Code specifically states that, with respect to Tex.
Fam. Code Ann. § 8.055, “the changes in law made by this Act. . . apply only to a
suit for dissolution of a marriage or proceeding for maintenance that was commenced
on or after the effective date of this Act.” See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). “A suit for dissolution
of a marriage or a proceeding for maintenance commenced before the effective date
of this Act is governed by the law in effect on the date the suit or proceeding was
commenced, and the former law is continued in effect for that purpose.” See id.
Here, the instant proceeding for maintenance commenced before January 3, 2006, when
the Midland County Court issued the first Order of Income Withholding for Spousal
Maintenance. Thus, it must be governed by the previous version of Tex. Fam. Code Ann.
§ 8.055. See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). As noted above and
in our August 2007 opinion, the previous version of Tex. Fam. Code Ann. § 8.055 stated
“Social Security benefits and disability benefits . . . are excluded from maintenance.” Tex.
Fam. Code Ann. § 8.055(c) (2007). Based on this provision, we concluded that Texas
state law prohibited income withholding of Social Security benefits for spousal maintenance.
Accordingly, while Texas law changed effective September 1, 2011, the change does
not apply to the November 26, 2007 Order discussed in this case. As the previous
version of Section 8.055 still applies to the November 26, 2007 Order, the agency
still cannot honor this order for income withholding. We note that an opinion on whether
state law permits withholding of benefits for spousal maintenance or child support
is not specifically included in the regulatory list of “initial determinations” that
a beneficiary may appeal. See, e.g., 20 C.F.R. § 404.902 (initial determinations are those that largely relate to whether
a number holder is entitled to benefits). Instead, an opinion on whether state law
permits withholding of benefits for spousal maintenance or child support is similar
to those matters that are not initial determinations. See, e.g., 20 C.F.R. § 404.903 (administrative actions that are not initial determinations
include representative determinations such as whether the agency will order a number
holder’s employer to withhold earnings to collect an overpayment due to the agency).
Thus, our conclusion that SSA cannot honor the November 26, 2007, order is not an
appealable initial determination.
Finally, you asked that, if SSA could not honor the November 26, 2007, Order for income
withholding, OGC provide suggested language to use to respond to the attorney and
the court. We suggest the following response:
You disagreed with SSA’s interpretation of Tex. Fam. Code Ann. § 8.055 (2010), which
specifically stated that “Social Security benefits and disability benefits . . . are
excluded from maintenance.” See id. at § 8.055(c) (2010). But, the plain language of the statute isolated Social Security
benefits and specifically excluded them from “maintenance.” See id. In Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 479 (Tex. 2001), the Texas Supreme Court recognized the basic rule
of statutory construction that it enforces the plain meaning of an unambiguous statute.
You argued that the provision’s language intended only to exclude Social Security
benefits from the calculation of maintenance. However, the plain language of the statute does not support this
argument, as the statute did not discuss whether Social Security benefits should be
excluded from the calculation of maintenance. Rather, it specifically excluded Social Security benefits “from maintenance.” We
have found no case law interpreting Tex. Fam. Code Ann. § 8.055(c) in a manner consistent
with your argument. Thus, we accept the plain meaning of the statute, as enacted
by the Texas Legislature, as intending to exclude Social Security benefits from spousal
maintenance.
You also noted that a recent change in Texas law amended Tex. Fam. Code Ann. § 8.055
to exclude the language discussed above. We agree that the Texas Legislature amended
this provision and omitted the language upon which we previously relied. However,
the 2011 changes to Texas law do not apply retroactively. The 2011 legislative bill
amending the Texas Family Code specifically states that, with respect to Tex. Fam.
Code Ann. § 8.055, “the changes in law made by this Act. . . apply only to a suit
for dissolution of a marriage or proceeding for maintenance that was commenced on
or after the effective date of this Act.” See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). “A suit for dissolution
of a marriage or a proceeding for maintenance commenced before the effective date
of this Act is governed by the law in effect on the date the suit or proceeding was
commenced, and the former law is continued in effect for that purpose.” See id. Thus, the November 26, 2007, Order is still governed by the former version of Tex.
Fam. Code Ann. § 8.055, which stated that “Social Security benefits and disability
benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007). Therefore, SSA still cannot honor the November 26, 2007 order
for income withholding. Rather, if properly served, SSA may honor a Texas court’s
order of income withholding stemming from any proceeding for maintenance commenced
after September 1, 2011.
CONCLUSION
We conclude that, effective September 1, 2011, while a court may not include an individual’s
Social Security benefits in calculating his gross income, a court may order income
withholding of a number holder’s Social Security benefits for spousal maintenance
pursuant to a valid income withholding order. However, this change only applies to
those proceedings for income withholding that commenced after September 1, 2011.
Accordingly, the 2007 version of the Texas Family Code – and our August 2007 opinion
– still governs the November 26, 2007, Order and all orders stemming from proceedings
commenced prior to September 1, 2011. Thus, the agency cannot honor the November
26, 2007 Order of Income Withholding.
Michael McGaughran
Acting Regional Chief Counsel
By:__________________________
Nicole Dana
Assistant Regional Counsel