QUESTION PRESENTED
               Whether the Social Security Administration (SSA or agency) may request a refund of
                  garnished Social Security benefits paid to the former spouse of a disability claimant
                  for child support when a New York Income Execution Order directing the garnishment
                  has been signed by a private attorney, not a judge or court official.
               
               OPINION
               The garnishment for payment of child support to Josephine , former spouse of David
                  , the number holder (NH), was correct because a New York Income Execution Order is
                  valid even when signed only by a private attorney acting as an agent of the court.
                  However, the amount of garnished benefits may be excessive and may warrant an overpayment
                  refund.
               
               BACKGROUND
               The NH received disability insurance benefits. On July 2, 2009, the NH was served
                  with a New York Income Execution Order directing that $2,000 per month be garnished
                  from his disability benefits, representing $1,500 for basic child support and $500
                  for payments in arrears. The order was titled an Income Execution for Support Enforcement
                  for the Supreme Court of the State of New York for the County of Putnam. This order
                  was sent to the agency and was received on July 29, 2009. The agency initially began
                  garnishing the NH’s benefits and directing these benefits to the claimant’s former
                  spouse. However, in September 2010, the Northeast Program Service Center (“NEPSC”)
                  determined that the order was not a valid New York State Income Execution Order because
                  it was not signed by a judge or court official, and found that Josephine was overpaid
                  $16,402.10. The agency subsequently demanded repayment because the NEPSC believed
                  that the order was not valid or enforceable under New York law, and as such, Josephine
                  was not entitled to the garnished benefits..
               
               ANALYSIS
               Generally, Social Security benefits are not subject to garnishment. 42 U.S.C. § 407(a).
                  However, the Social Security Act (the Act) provides exceptions to this general rule,
                  including allowing Social Security benefits to be subject to garnishment to enforce
                  the recipient’s legal obligation to provide alimony or child support. 42 U.S.C. §
                  659(a), (h)(1)(A)(ii)(I). Thus, periodic and lump sum Title II benefits may be garnished
                  following the receipt of legal process to enforce an individual’s legal obligation
                  to provide child support or spousal support. See 42 U.S.C. § 659; 5 C.F.R. § 581.101 et seq.; 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) GN 02410.200, GN 02410.210, and GN 00306.110.
               
               Legal process relating to an obligation to provide alimony or child support under
                  state or local law must be enforceable under state law and pursuant to a valid order
                  authorizing income withholding. See POMS GN 02410.200. Here, New York law provides that when a debtor is in default, an execution for support
                  enforcement may be issued by a support collection unit, the sheriff, the clerk of
                  the court, or the attorney for the creditor as an officer of the court. N.Y. C.P.L.R. § 5241(b)(1) (emphasis added). When served with an income execution
                  order by an attorney as an officer of the court, the debtor may assert a mistake of
                  fact defense within 15 days from the date of service. N.Y. C.P.L.R. § 5241(e). New
                  York law also limits the amount of the deduction, allowing no more than fifty percent
                  (50%) of the earnings of the debtor to be withheld when the debtor is currently supporting
                  a spouse or dependent child other than the creditor; no more than sixty percent (60%)
                  of the earnings of the debtor to be withheld when the debtor is not currently supporting
                  a spouse or dependent other than the creditor; and no more than sixty-five percent
                  (65%) of the earnings of the debtor to be withheld when the debtor is not currently
                  supporting a spouse or dependent other than the creditor and part of the deduction
                  is being applied to the reduction of arrears that have accrued for more than 12 weeks
                  prior to the beginning of the week where the earnings are payable. N.Y. C.P.L.R. §
                  5241(g)(ii).
               
               The agency was presented with an Income Execution Order requesting garnishment of
                  benefits for basic child support and payments in arrears on July 29, 2009. This order
                  was signed by Paul W. Meyer, Jr., Esq., the attorney for the creditor NH. Based upon
                  the provisions of New York law, the agency has previously recognized New York Income
                  Execution Orders as a valid document for garnishment purposes even when signed only
                  by an attorney. [1] Thus, the agency initially correctly garnished the NH’s benefits and paid these garnished
                  benefits to Josephine, but then incorrectly ceased garnishment based on the mistaken
                  belief that the New York Income Execution Order was invalid.
               
               However, an overpayment issue still may exist with regards to the amount of the garnishment.
                  Here, the given facts do not show whether the NH is supporting a different spouse
                  or dependent child. If the agency has not already done so, it must ensure that the
                  NH does not have another spouse or dependent child. Depending on this finding, the
                  agency should then garnish the appropriate percentage of the NH’s benefits.
               
               CONCLUSION
               Based on these findings, the agency should honor the garnishment order to the extent
                  allowed by the Act and New York State law, and make the requisite deductions.
               
               mail, by personal delivery, or by transmission through electronic means. In Nevada,
                  a support notice may be served by first-class mail, by electronic means, or by certified
                  mail, return receipt requested. As noted in a prior opinion, the critical element
                  for all types of service is that the person to whom support is owed (or the local
                  child support agency) must serve SSA with the order and important documents and form
                  which explain the rights of the person who owes the support
               
               Stephen P. Conte
               Regional Chief Counsel, Region II
               By: _______________
               Daniel R. Janes
               Assistant Regional Counsel