You have asked whether the voluntary marital agreement submitted by M~ [1] and T~ is a court ordered garnishment of alimony payments in Wisconsin, such that
garnishment of Title II benefits is permissible. You have also asked whether there
is a legal basis for the representative payee to have used 50% of M~’s benefits to
honor this agreement. Finally, you wish to know whether ongoing SSA payments are protected
under section 207 of the Social Security Act.
We conclude the following: 1) the voluntary agreement is not a legal process appropriate
to implement withholding; 2) there is no legal basis for the representative payee’s
previous use of M~’s Social Security benefit to honor this agreement; and 3) M~, who
now is receiving benefits directly, could use the anti-assignment clause as a personal
defense if his ex-spouse seeks enforcement of this agreement.
BACKGROUND
M~ is in current receipt of Title II benefits. His ex-wife, T~, was M~’s representative
payee from September 16, 2008, through May 6, 2014 because M~ was suffering a cognitive
impairment. The couple divorced on January 6, 2013. As part of the divorce order,
the couple surrendered their rights to spousal support and maintenance and any future
claim to maintenance. See In re Marriage of Ziemann, Case No. 12 FA 731 (Wis. Circuit Ct., March 1, 2013). The order further indicates
that no payments are ordered, and no maintenance payments were previously ordered.
Id. On the day of their divorce, the couple filed an agreement with the court entitled
“Additional Agreement.” In this agreement, M~ agrees to pay M~ 50% of his monthly
Social Security benefit in lieu of maintenance payments every month until she reaches
age 69 and can collect her own Social Security benefits. Additional Agreement of Mark Christopher Ziemann and Therese Anne Ziemann, Case No. 12 FA 731.
T~ served as M~’s representative payee from September 16, 2008, through May 6, 2014,
and used 50% of M~’s SSA monthly benefit during this time to meet the obligation stemming
from this voluntary agreement. M~ is now receiving benefits directly.
DISCUSSION
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I.
The Voluntary Agreement Does Not Constitute Legal Process Appropriate To Implement
Withholding of Title II Benefits.
Social Security Title II benefits may be garnished to enforce an individual’s legal
obligation to provide alimony. 42 U.S.C. § 659(a), (h)(1)(A)(ii)(I); 5 C.F.R. § 581.103(c)(1);
20 C.F.R. § 404.1820(b); POMS GN 02410.200A. Specifically, the Agency is required to comply with "legal process," which is defined
as "any writ, order, summons, or other similar process in the nature of garnishment"
and which is issued by (1) a court of competent jurisdiction (domestic or foreign),
(2) an authorized official pursuant to a court order 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); POMS GN 02410.200B.
Here, the voluntary agreement entered into by M~ and his ex-spouse does not fall within
any of these three categories, and thus is not legal process appropriate to implement
withholding. The agreement makes no provision for income or benefits withholding by
any third-party payors and, therefore, it is not "in the nature of [a] garnishment."
The agreement was filed with the court but not issued by a court, an authorized official
or a State Agency. Because the document does not constitute legal process, any garnishment
of M~’s monthly Title II benefits would be prohibited by 42 U.S.C. § 407(a), which
provides that "[t]he right of any person to any future payment under [Title II] 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," unless some other provision of law
expressly provides for such collection.
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II.
The Representative Payee Had No Legal Basis For Using M~’s Monthly Benefit To Honor
This Agreement.
Since M~ was apparently under a mental impairment during the time he entered into
the agreement, it is unclear whether the voluntary agreement is valid under state
law. However, we need not reach that issue because Social Security rules and policies
prohibit M~’s ex-spouse from using his monthly benefit to honor this agreement.
Title II benefits can be used to support family members, including a legally dependent
spouse. POMS GN 00602.020(A)(2). However, here, T~ is M~’s ex-spouse, and would not be meet this narrow exception
for use of Title II benefits.
Title II benefits can also be used to satisfy past debts, including those of a creditor
payee. POMS GN 00602.030. However, the payee must obtain SSA approval prior to using benefits for self-reimbursement.
It is not clear from the information provided, whether T~ obtained authorization from
SSA to reimburse herself from M~’s monthly benefit. However, T~ was prohibited from
reimbursing herself without SSA approval.
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III.
M~ May Raise the Anti-Assignment Provision As a Personal Defense Against Efforts To
Enforce the Agreement.
M~ is a now receiving benefits directly. If he chooses, he may voluntarily comply
with this agreement. If he does not wish to honor this agreement, he could raise the
anti-assignment clause as a personal defense. POMS GN 02410.001(A). However, the agency’s responsibility for protecting payments against legal process
and assignment ends when it pays the beneficiary or recipient. Id.
CONCLUSION
In sum, we conclude that the voluntary agreement is not a legal process appropriate
to implement withholding. Moreover, there is no legal basis for the representative
payee’s previous use of M~’s Social Security benefit to honor this agreement. Finally,
M~, who now is receiving benefits directly, could voluntarily choose to honor the
terms of this agreement; however, he could use the anti-assignment clause as a personal
defense if his ex-spouse seeks enforcement of this agreement.
Kathryn Caldwell
Acting Regional Chief Counsel, Region V
By: _____________
Anne Madden
Assistant Regional Counsel