TN 14 (09-12)

PR 04015.035 New York

A. PR 12–128 Josephine , New York Income Execution Order on Benefits of David/Josephine SSN ~

DATE: August 21, 2012

1. SYLLABUS

New York Income Execution Orders, when signed only by an attorney, serve as a valid document for garnishment purposes.

2. OPINION

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


Footnotes:

[1]

See Stark v. United States, et al., No. 01-CV-0353 (N.D.N.Y. July 17, 2002) in an unpublished opinion the court stated that “SSA concedes that … New York law authorizes the issuance of support enforcement income executions by ‘the attorney for the creditor as an officer of the court.’”


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1504015035
PR 04015.035 - New York - 09/26/2012
Batch run: 09/26/2012
Rev:09/26/2012