TN 11 (02-12)

PR 04015.006 California

A. PR 12-051 Garnishment – Validity of a Georgia Court Order Attempting to Stay a Garnishment Order Issued by a California Court

DATE: February 2, 2012

1. SYLLABUS

The Regional Chief Counsel has been asked if SSA is required to comply with a Georgia court temporary order requiring that we cease honoring a garnishment order from a California court. The Georgia court is a court of competent jurisdiction; however, the California court is under no legal obligation to comply with an order of the Georgia court. The existing order of garnishment withholding is under California jurisdiction and garnishment of Social Security benefits will continue pending an order to cease from the State of California.

2. OPINION

QUESTION

You asked for guidance on whether the Social Security Administration (SSA) is required to comply with a Georgia court temporary order requiring SSA to cease honoring a garnishment order from a California court. Specifically, you asked which State has jurisdiction over this matter, and which court order takes priority.

OPINION

BACKGROUND

Based on the information provided, we understand the facts to be as follows. On October 20, 2010, a California court issued an Income Withholding for Support Order, which SSA received and subsequently processed. The garnishment order provided for the garnishment of the Social Security disability benefits of Thomas, the number holder (NH), to satisfy alimony and child support obligations. Although NH alleged that the California court did not have personal jurisdiction over him, the information provided shows that NH received personal service of the child support order when he visited California to see his child.

On October 31, 2011, SSA received a temporary order from a Georgia court, dated September 2, 2011, requiring SSA to "temporarily set aside and abate" the garnishment of NH's Social Security disability benefits. The Georgia court order stated the following:

It appears to the Court . . . that [NH's former spouse and Imperial County, California Department of Child Support Services (California DCSS) have] failed to domesticate the foreign support order upon which the garnishment is based. Further, it appears that [NH's former spouse and California DCSS] may have lacked jurisdiction over the person of the [NH] and over subject matter of custody of a child for whom the state of Georgia entered the last custody order. Because neither [California DCSS] nor [NH's former spouse] has appeared in this action, this Court is left no option but to enter a temporary order granting relief from foreign judgment. . . . It is therefore ordered that [NH] is hereby granted temporary relief from the foreign support order in Imperial County, California, until further order of this Court. The garnishment of [NH's] Social Security Disability Benefits is hereby temporarily set aside and abated until further order of this Court.

NH now resides in Shelbyville, Kentucky.

DISCUSSION

Generally, the right of a person to future payments of Social Security benefits is not subject to garnishment. See Social Security Act (Act) § 207(a). However, Congress has created a specific exception to this prohibition that allows garnishment of an individual's Social Security disability insurance benefits to enforce the individual's legal obligation to provide alimony or child support. The Act states in pertinent part:

Notwithstanding any other provision of law (including section 207 of this Act and section 5301 of Title 38, United States Code), effective January 1, 1975, moneys (the entitlement to which is based on remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 466 and regulations of the [Commissioner] under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.

Act § 459(a). Moneys payable to an individual that are considered to be based upon "remuneration for employment" include periodic benefits or other payments under the insurance system established by title II of the Act. Id. at § 459(h)(1)(A)(ii)(I); see 5 C.F.R. § 581.103(c)(1). "Neither the United States . . . nor any disbursing officer shall be liable with respect to any payment made from moneys due or payable from the United States to any individual pursuant to legal process regular on its face, if the payment is made in accordance with this section and the regulations issued to carry out this section." Id. at § 459(f)(1); see also United States v. Morton, 467 U.S. 822, 836 (1984) (holding an entity cannot be held liable for complying with a writ of garnishment which is regular on its face). Legal process is defined as any writ, order, summons, notice to withhold income, or other similar process in the nature of garnishment that is issued by a court of competent jurisdiction in any State. Act § 459(i)(5). Thus, SSA must honor a state court order imposing a garnishment of Social Security benefits if the garnishment order is for the purpose of recovering alimony or child support and the order appears valid on its face.

In this case, the California court ordered the garnishment of NH's Social Security disability benefits to enforce alimony and child support obligations. The order appears regular on its face and appears to conform to the laws of the jurisdiction from which it was issued. Cf. McPherson v. Soc. Sec. Admin., 2010 WL 1609975, at *2 (M.D. Tenn. Mar. 5, 2010) (the garnishment order "appears to have been composed in accordance with the laws of Michigan, was plainly issued by an agency with subject-matter jurisdiction to issue such orders, and is thus legal process that is 'regular on its face.'"). Although SSA has now received an order from a Georgia court to temporality set aside the California court order, SSA should not comply with the Georgia court's temporary order absent evidence to show that the Georgia court has jurisdiction over SSA or the California court.

The Office of Personnel Management promulgated regulations on processing garnishment orders for child support and/or alimony, which includes processing orders in accordance with section 459 of the Act. 5 C.F.R. §§ 581.101(a)-(b), 581.103(c)(1) (2011) [1] ;M~, 2010 WL 1609975, at *2 (applying 5 C.F.R. pt. 581 to garnishment under § 459 of the Act). These regulations state that an agency shall comply with "legal process" in garnishment cases involving enforcement of child support or alimony except where the process cannot be complied with because:

(1) The legal process does not, on its face, conform to the laws of the jurisdiction from which it was issued; (2) The legal process would require the withholding of funds not deemed moneys due from, or payable by, the United States as remuneration for employment; (3) The legal process is not brought to enforce legal obligation(s) for alimony and/or child support; (4) The legal process does not comply with the mandatory provisions of this part; or (5) An order of a court of competent jurisdiction enjoining or suspending the operation of the legal process has been served on the governmental entity.

5 C.F.R. §§ 581.102, 581.305(a); see 5 C.F.R. § 581.102(f) (defining "legal process" as any writ, order, summons, notice to withhold income, or other similar process in the nature of garnishment). In this case, the California court order does not invoke exceptions (1) through (4). As noted above, the California court order appears on its face to conform with the laws of California, requires withholding of NH's Title II disability insurance benefits, and was issued to enforce NH's legal obligation to pay alimony and child support. Exception (5) also does not appear to be applicable in this case because the Georgia court is not a court of competent jurisdiction, i.e., the Georgia did not have the authority to enjoin or suspend the California garnishment order. A "court of competent jurisdiction" generally refers to a court with subject matter jurisdiction. See M~, 467 U.S. at 828. Although the Georgia court is a court of competent jurisdiction over family law matters and child support in Georgia, we have found no legal authority giving the Georgia court jurisdiction over such matters in California, including matters related to garnishment. In fact, the basis for the temporary order was that NH's spouse and California DCSS did not appear before the Georgia court, and that NH had provided "uncontroverted testimony . . . at this time[]." Moreover, the States are required to give full faith and credit to, and enforce the child support orders of other states, and they should not seek or make modifications to such orders except in certain situations. See 28 U.S.C. § 1738B(a). For instance, a state court can modify another state court's child support orders when (1) there is no individual party or child residing in the issuing state, and (2) the court of the other state no longer has jurisdiction because neither the child nor either party lives in the state or the parties have consented to the jurisdiction by another state. See id. at § 1738B(e), (i). The Georgia court temporary order does not recognize or account for the requirements of this federal statute and the facts of this case do not appear to provide an avenue for the Georgia court to modify the order from California in accordance with this statute.[2]

We recognize NH's argument that the California court did not have personal jurisdiction over him. However, NH's argument does not provide a sufficient basis for SSA to stop complying with the California garnishment order. The Supreme Court has held that an agency must honor the service of process of state court garnishment orders, such as the California court order in this case, except in specified situations, none of which involves the issuing court's alleged lack of jurisdiction over the person. See M~, 467 U.S. at 834-35. The Court noted that if the agency receives legal process that appears to conform with the laws of the jurisdiction from which it was issued, the agency is not required to ascertain whether the authority which issued the legal process had obtained personal jurisdiction over the obligor. Id. In any event, NH received personal service of the child support order when he visited California to see his child. The physical presence of a nonresident within the state's borders and properly serving him with process is sufficient for personal jurisdiction over him "no matter how fleeting his visit." See Burnham v. Superior Court of California, County of Marin, 495 U.S. 604, 610-611 (1990). Thus, it appears that SSA should follow the California garnishment order regardless of NH's allegation of a lack of personal jurisdiction.

CONCLUSION

The Georgia court does not have jurisdiction over SSA or the California court. SSA is still required to honor the California court garnishment order, and SSA should not follow the order from the Georgia court to temporarily set aside the California garnishment order.

Mary Ann Sloan

Regional Chief Counsel

By: _______________

Christopher Yarbrough
Assistant Regional Counsel

B. PR 07-012 Garnishment of Retirement Benefits for Spousal Support After Death of the Spouse

DATE: November 14, 2006

1. SYLLABUS

Benefits were garnished for delinquent spousal support based on an August 9, 1994 writ of execution from the Superior Court of Los Angeles County in the amount of $218,214.41, which included $35,354.01 in interest. The ex-spouse died in March, 1997. SSA continued to garnish benefits until April 2006.

In California, money judgments secured for payment of past due child or spousal support payments are enforceable until they are satisfied. Cal. Fam. Code § 4502(a). Were the NH current on his spousal support payments at the time of the ex-spouse's death, his obligation would clearly have terminated. Cal. Fam. Code § 4337. However, the NH does not appear to have ever been current with his spousal support obligations, and California law directs that the NH's spousal support debt did not terminate with the ex-spouse's death.

SSA should continue to garnish the NH's account because the money judgment his former spouse obtained against him for past due spousal support has not been satisfied, no order of termination has been issued, and the former spouse's estate is entitled to continue to receive payment as the judgment creditor.

2. OPINION

QUESTION

You have asked whether you should continue garnishing the account of Joe for payment to the estate of his deceased former spouse.

SUMMARY OF EVIDENCE

Number holder Joe ("NH") and Colline were divorced in July 1981. As part of the Interlocutory Judgment of Dissolution of Marriage, issued on August 6, 1981, the NH was ordered to pay to Colline, spousal support in the amount of $900.00 per month until Colline's remarriage, death or further order of the court. On July 20, 1992, a judgment was apparently issued against the NH in the amount of $182,853.40. On August 9, 1994, the Superior Court of Los Angeles County issued a writ of execution for the money judgment against the NH in the amount of $218,214.41, which included $35,354.01 in interest after the judgment.

In May 1996, Willis , Colline's attorney wrote a letter to SSA notifying us that his client's February 1996 payment had been late and that she had not received payment for March 1996.

Colline died in March 1997. In a letter dated April 21, 1997, the then-Assistant Regional Commissioner, Dennise , notified the Los Angeles County Marshal's Office - the levying agent responsible for enforcing the writ against the NH - that Colline had died the previous month. Colline noted SSA had been garnishing the NH's benefits for delinquent spousal support due to a previous garnishment order, and that it was continuing to withhold benefits but had stopped payment until it was further notified regarding the status of the garnishment. Colline noted that SSA could not stop garnishment without a court order and acknowledged that garnishment could continue in order to reimburse Colline's estate.

In a letter to the Los Angeles County Marshall's Office dated April 18, 2006, Assistant Regional Commissioner, Stephen Breen noted that SSA had been forwarding payments for spousal support to that agency since 1995 and that Colline died in March 1997.

Mr. Breen indicated that "normally," support payments stop the month of death unless SSA was ordered to pay the estate of the deceased spouse and that, in the absence of an order of continuance, payments would be stopped immediately pending the Marshall's Office reply. Mr. Breen further inquired to whom $41,456.80 in payments since April 1997 had been paid.

In a letter to Mr. Breen dated April 28, 2006, the Los Angeles County Sheriff's Department replied that they were unaware of Colline's death and had been forwarding payment/collections to her attorney, Willis.

According to a May 24, 2006, memorandum from benefits authorizer, Richard, SSA stopped garnishment in April 2006 due to the fact that Colline had died in March 1997.

In a letter to Willis dated May 15, 2006, Mr. Breen indicated that garnishment should have ceased the month Colline died. He noted that spousal support payments stop the month of death unless SSA receives "a second order from Superior Court to pay the estate." Since SSA had not received such a request, Mr. Breen indicated that $41,456.80 in "spousal support payments" should be returned to SSA for reimbursement to the NH. The letter set forth administrative appeal rights, but did not cite the basis for the claim that garnishment should cease.

In a letter to Mr. Breen dated May 18, 2006, attorney Raymond Goldsten, on behalf of attorney Willis who had retired, indicated that his office had been retained only to collect the past-due spousal support for Colline, which, at the time of her death, still included a substantial amount of arrears. Mr. Goldstein noted that, Elmer Van Brunt had commenced a probate action following Colline's death and had been appointed administrator of her estate. Mr. Goldstein noted that his firm had been distributing the garnishment funds in accordance with the instructions Colline's heirs had provided. He further indicated that, under Cal. Fam. Code § 4502, spousal support is enforceable until it is paid in full, and that under the Cal. Code of Civ, Proc. § 686.010, after the death of a judgment creditor, the judgment may be enforced by the judgment creditor's executor, administrator or successor in interest. Mr. Goldstein indicated that his firm was in compliance with the law and that SSA should allow the garnishment to continue and release any funds it had held. He attached a copy of the August 1994 writ of execution for money judgment and a copy of the instructions Colline's heirs had given to attorney Willis.

On June 1, 2006, Richard noted that he told Mr. Goldstein that SSA had terminated garnishment and that it did not have "an order requesting garnishment payments be issued to the estate of the deceased." Mr. Goldstein told Richard that the attorney who had "the document ordering garnishment payments be paid to the estate" was on vacation would not return for two more weeks. Apparently, Mr. Goldstein indicated that federal law required the garnishment to continue, but he understood that SSA needed to stop payments pending further development of the case. Mr. Goldstein was also informed that his appeal rights would be protected pending the further development.

On June 30, 2006, Mr. Goldstein sent SSA copies of a June 2, 1997, order for probate issued by the Los Angeles County Superior Court appointing Mr. Van Brunt as administrator of Colline's estate and a probate letter of administration from the same date and the same court. Mr. Van Brunt was granted full authority to administer the estate. The materials Mr. Goldstein sent do not directly address garnishment. At that time, Mr. Goldstein reiterated his position that the estate was in full compliance with the earnings withholding order and that SSA should release the money it had been holding pending solution of this matter.

ANALYSIS

The Social Security Act provides that monies payable by the United States government are subject to legal process to enforce an obligation to pay child or spousal support, or both.

42 U.S.C. § 659(a) (notwithstanding the provisions of 42 U.S.C. § 407, garnishment is available for spousal and child support obligations); 5 C.F.R. 581.101 et. seq.; Millard v. United States, 916 F.2d 1, 3 (Fed. Cir. 1990); Program Operations Manual System (POMS) GN 02410.001, GN 02410.200. SSA is subject to the same requirements concerning child and spousal support orders as would apply if it were a private person/employer.

42 U.S.C. § 659(b); 5 C.F.R. § 581.101(b). SSA is required to withhold benefits for child or spousal support obligations in accordance with the applicable state law. 42 U.S.C. 659(a); 5 C.F.R. §§ 581.102(e, g); POMS GN 02410.200.C.

In California, a withholding order for support is an earnings withholding order issued on a writ of execution to collect delinquent amounts payable under a judgment for the support of a child, or spouse or former spouse, of the judgment debtor. Cal. Code Civ. Proc. § 706.030(a). As noted, although the materials we received do not contain an actual withholding order, it is not in dispute that there had been such an order or that the NH's benefits were properly garnished at least until his former spouse died. Under California law, an employer is obligated to continue withholding until the earliest of the following occurs: (1) the date the employer has withheld the full amount required to satisfy the order; (2) the date of termination specified in a court order served on the employer; (3) the date of termination specified in a notice of termination served on the employer by the levying officer; or (4) the date of termination of a dormant or suspended earnings withholding order as a result of the termination of the employment or an order concerning a higher priority assignment. Cal. Code Civ. Proc. §§ 706.022(a), 706.032; see also Cal. Code Civ. Proc. § 706.030(c)(1). The NH's debt has not been satisfied, no order has been issued terminating the withholding order, the NH is still receiving Title II benefits, and no higher priority assignment has been issued. Accordingly, there is no legal reason SSA could have stopped garnishment.

We note that, in California, spousal support obligations automatically terminate upon the death of either party unless otherwise set forth in writing. Cal. Fam. Code § 4337. The parties' divorce judgment also stated that support payment would cease upon Colline's death. Accordingly, the NH was not obligated for additional support payments once his former spouse died. However, at issue in this matter is not the NH's obligation for support payments once Colline died, but his obligation regarding the money judgment issued against him in 1992 for past due spousal benefits and for which a writ of execution was issued on August 9, 1994.

In California, money judgments secured for payment of past due child or spousal support payments are enforceable until they are satisfied. Cal. Fam. Code § 4502(a). Such judgments are exempt from any requirement in the Enforcement of Judgments Law that judgments be renewed. Id. A "judgment creditor," moreover, includes "the guardian or conservator of the estate, personal representative, or other successor in interest of the judgment creditor" unless "the context otherwise requires." Cal. Code Civ. Proc. § 680.240. Judgments are enforceable after the death of the creditor "in the same manner as by the judgment creditor." Cal. Code Civ. Proc. § 686.010, Law Revision Commission Comment. An administrator of Colline's estate was appointed in June 1997 and given full authority to administer her estate. As previously noted, we do not have an order from the probate court directing that further garnishments should be payable to Colline's estate as referenced in Richard's June 2006 report of contact with Raymond. For our purposes, however, such an order is not necessary given the facts that no conditions for termination of the earnings withholding order exist, a money judgment for past spousal support is enforceable until satisfied, and Colline's estate stands in her place as the judgment creditor.

Although there are indications in the file that SSA could not continue to garnish the NH's account for payment to Colline's estate without a court order, we have not found any authority supporting this conclusion, and California law directs the opposite, i.e., that an employer may not stop garnishment unless the judgment has been satisfied or upon further order. Cal. Code Civ. Proc. §§ 706.022, 706.030. Were the NH current on his spousal support payments at the time of Colline's death, his obligation would clearly have terminated. Cal. Fam. Code § 4337. However, the NH does not appear to have ever been current with his spousal support obligations, and California law directs that the NH's spousal support debt did not terminate with Colline's death. We further note that if the NH believes he is being unfairly burdened, it is his burden to seek relief from the court that granted the money judgment and subsequent earnings withholding order against him in the first place. There is no indication that he has availed himself of that right.

CONCLUSION

SSA should continue to garnish the NH's account because the money judgment his former spouse obtained against him for past due spousal support has not been satisfied, no order of termination has been issued, and Colline's estate is entitled to continue to receive payment as the judgment creditor.

C. PR 06-181 Inquiry Concerning Benefit Garnishment in the Case of Robert

DATE: June 29, 2006

1. SYLLABUS

Although the usual limit in California is 50%, if the court specifies a higher amount (not to exceed 65% of the wage earner's income (benefits)) the higher amount can be withheld to satisfy child support arrearages.

2. OPINION

QUESTION

You requested guidance in replying to inquiries from an attorney with the Santa Clara County Department of Child Support Services concerning a California court's order to garnish the Title II disability insurance benefits of Robert (hereinafter “wage earner”) for child support arrearages.

SUMMARY OF EVIDENCE

On November 17, 2005, the California Superior Court for Santa Clara County issued an “Order/Notice to Withhold Income for Child Support.” According to the order, the “employer” of the wage earner, the employee/obligor, is required to deduct $2,000 per month in past-due child support (arrearages greater than 12 weeks) from the employee/obligor's income until further notice. The court further ordered that the “total withheld amount, including your fee, may not exceed 65% of the employee/obligor's aggregate disposable weekly earnings.”

Additional information accompanying the court's order provided:

For state orders, you may not withhold more than the lesser of: 1) the amounts allowed by the Federal Consumer Credit Protection Act (15 U.S.C. § 1673(b)); or 2) the amounts allowed by the state of the employee/obligor's principal place of employment. The federal limits apply to the aggregate disposable weekly earnings (ADWE). ADWE is the net income left after making mandatory deductions such as: state, federal, local taxes; Social Security taxes; statutory pension contributions; and Medicare taxes.

Finally, according to an attachment to the court order entitled “Employer's Frequently Asked Questions,” the Federal Consumer Credit Protection Act states that withholding orders cannot exceed 50% of the obligor's aggregate disposable weekly earnings. The attachment further indicated that local courts are allowed to order an amount greater than 50%, but federal law prohibits withholding more than 65% of the obligor's disposable earnings in any case.

Our review of the wage earner's Master Beneficiary Record (MBR) shows that an administrative law judge awarded Title II disability benefits in March 2004 with an onset date of May 2001. The current primary insurance amount (“PIA”) as of December 2005 is $1,648.70. There is a notation in the MBR indicating that the wage earner's case is a “garnish case” at “50%” but that his benefits should not be adjusted without consulting the Post-Entitlement Team Leader (“PETL”).

According to Assistant District Manager Willie , withholding began on December 29, 2005. SSA initially withheld $780 per month, then adjusted the withholding to $824 per month, which is 50% of the wage earner's current PIA ($1,648).

County attorney, Rocky , contacted SSA stating the court has ordered child support withholding of 65% of benefits, rather than 50%. She said she was told that the amount would be adjusted but that it has not been adjusted.

DISCUSSION

The Social Security Act provides that monies payable by the United States government are subject to legal process to enforce an obligation to pay child or spousal support, or both.

42 U.S.C. § 659(a); Millard v. United States, 916 F.2d 1, 3 (Fed. Cir. 1990).

The United States must, within fifteen days of the date of service of a court garnishment order for support, send written notice to the debtor that the order has been served. 42 U.S.C. §659(c)(2)(A). The United States is not liable for any payments made to a person pursuant to legal process “regular on its face” if the payment is made pursuant to section 659 and the regulations. 42 U.S.C. § 659(f); 5 C.F.R. § 581.101.

The Federal Consumer Credit Protection Act (hereinafter, “CCPA”) restricts the amount of the debtor's money that is subject to garnishment or wage assignment. 15 U.S.C. § 1673. Where, as here, the debtor is not supporting a second family and is more than 12 weeks in arrears, the CCPA limit is 65%. 15 U.S.C. § 1673(b)(2)(B); POMS GN 02410.215(3).

A state may provide greater protection to debtors than the CCPA. POMS GN 02410.215; see also Evans v. Evans, 429 F.Supp. 580, 582 (W.D. Okla. 1976) (Federal law provides maximum earnings subject to garnishment but was not intended to preempt state garnishment laws that are more restrictive).

In California, a withholding order for support is an earnings withholding order issued on a writ of execution to collect delinquent amounts payable under a judgment for the support of a child, or spouse or former spouse, of the judgment debtor. Cal.Civ. Pro. § 706.030(a) (West 2006). A local child support agency may issue a withholding order for support on a notice of levy pursuant to California Family Code section 17522 to collect a support obligation. Cal. Civ. Pro. § 706.030(b) (West 2006).

The usual limit on garnishment for child and spousal in California is 50%, although courts may specify a higher percentage, subject the restrictions in the CCPA. The California Code of Civil Procedure section 706.050 provides:

except as otherwise provided in this chapter [Wage Garnishment Law, Chapter 5], the amount of earnings of a judgment debtor exempt from levy of an earnings withholding order shall be that amount that may not be withheld from the judgment debtor's earnings under federal law in Section 1673(a) of Title 15 of the United States Code.

California Code of Civil Procedure section 706.052 provides:

(a) Except as provided in subdivision (b), one-half of the disposable earnings . . . of the judgment debtor, plus any amount withheld from the judgment debtor's earnings pursuant to any earnings assignment order for support, is exempt from levy under this chapter where the earnings withholding order is withholding order for support under Section 706.030.

(b) Except as provided in subdivision (c), upon motion of any interested party, the court shall make an equitable division of the judgment debtor's earnings that takes into account the needs of all persons the judgment debtor is required to support and shall effectuate such division by an order determining the amount to be withheld from the judgment debtor's earnings pursuant to the withholding order for support.

(c) An order made under subdivision (b) may not authorize the withholding of an amount in excess of the amount that may be withheld for support under federal law under Section 1673 of Title15 of the United States Code.

In addition to these California statutes, “The Employer's Handbook,” which can be found at the Santa Clara Department of Child Support Services website, <http://www.sccgov.org/portal/ site/dcss/>, states that “[e]mployers may withhold up to 50 percent of the employee's net disposable earnings, unless there is a specific court order which permits a higher percentage to be withheld. Employers must never withhold more than 65 percent of an employee's net disposable income.”

According to the “Additional Information To Employers and Other Withholders” (on the back or attached to Order/Notice to Withhold Income For Child Support), an employer:

may not withhold more than the lesser of: 1) the amounts allowed by the Federal Consumer Credit Protection Act (15 U.S.C. § 1673)); or 2) the amounts allowed by the State of the employee's/obligor's principal place of employment. The Federal limit applies to the aggregate disposable weekly earnings (ADWE). ADWE is the net income left after making mandatory deductions such as: State, Federal, local taxes; Social Security taxes; and Medicare taxes; along with disability insurance and payments to public employees' retirement systems. After the Obligor's disposable earnings are known, withhold the amount required by the Order/Notice, but never withhold more than 50 percent of the disposable earnings unless the court order specifies a higher percentage. Federal law prohibits withholding more than 65 percent of disposable earnings of an employee in any case.

(emphasis in original).

Although the usual limit in California is 50%, the court here has specified that 65% of the wage earner's income (benefits) be withheld to satisfy child support arrearages. Because the 65% limit is within the limit set by the federal CCPA, SSA should begin withholding 65% of the wage earner's benefits to comply with the court order.


Footnotes:

[1]

All other C.F.R. cites are to the 2011 version unless otherwise noted.

[2]

According to the Office of the Regional Chief Counsel, Region IX, under California law, a court may order that service of an assignment order (e.g., a garnishment order) be stayed only if it makes a finding of good cause or if an alternative arrangement exists for payment. See Cal. Fam. Code § 5260. Good cause exists to stay a garnishment order only if : (a) the court provides written explanation why a stay is in the best interest of the child; (b) the obligor has a history of uninterrupted, full and timely payment other than through assignment or other mandatory process for the prior 12 months; (c) the obligor doesn't owe an arrearage of prior support; and (d) the court finds by clear and convincing evidence that the assignment would cause extraordinary hardship on the obligor. See id. at § 5260(b)(1). Such facts are not present in this matter. Moreover, the Georgia court temporary order does not comply with the California requirements necessary to stay the garnishment order.


To Link to this section - Use this URL:
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PR 04015.006 - California - 02/27/2012
Batch run: 11/29/2012
Rev:02/27/2012