Question Presented and Short Answers
You requested a legal opinion regarding Utah’s garnishment procedures. Specifically,
you asked:
1. Whether SSA must answer the interrogatories attached to the writ of continuing
garnishment, and if so, whether SSA may serve its answers on the judgment creditor
or his/her attorney, without the debtor/wage earner’s consent.
Short Answer: Yes, but we recommend that SSA complete and serve different interrogatories than
those attached to the writ. The Privacy Act does not prohibit releasing the information,
because there is a routine use that specifically allows the disclosure.
2. Whether SSA must serve the writ of garnishment and other papers required under
Utah law on the debtor/wage earner, whom SSA has already notified of the garnishment.
Short Answer: Yes.
3. Whether SSA must wait 20 calendar days after service of these documents before
it may release the amounts withheld to the judgment creditor.
Short Answer: Yes. The 20-day period allows the debtor to contest the garnishment.
4. Whether SSA may enforce the writ for longer than 120 calendar days, since the debt
will not be extinguished by mid-December 2013.
Short Answer: No. The writ is not enforceable for longer than 120 days, even if the debt is not
yet satisfied.
In addition to the above questions, we considered whether the amount SSA is withholding
to satisfy the alimony judgment complies with Utah law. Although the writ directs
that SSA withhold 65% of the debtor/wage earner’s monthly benefit, this amount exceeds
the maximum withholding allowed under Utah law. SSA must return the excess amounts
withheld to the wage earner.
Finally, we considered whether SSA should comply with the judgment creditor’s attorney
request to release amounts withheld prior to October 15, 2013, the date the wage earner
filed for bankruptcy, directly to the wage earner. We conclude that SSA should continue
enforcing the writ until the 120 days expires.
Background
On August 13, 2013, the Third Judicial District Court of Salt Lake County, Utah, issued
a Writ of Continuing Garnishment and Instructions for Alimony Arrears. The District
Court Clerk signed the writ electronically at the top of the first page. The writ,
which was served on the Salt Lake City Field Office by mail or hand-delivery, states
that the court has entered a judgment for $11,110.83 against the wage earner, David,
for past due alimony. Writ at 2, 2.
The writ directs SSA to (1) answer the interrogatories attached to the writ and serve
a copy of the answers on the judgment creditor’s attorney and David; and (2) serve
one copy of the writ and the Notice of Garnishment and Exemptions form, and two copies
of the Reply and Request for Hearing form on David. Writ at 2-3, 4. Attached to the
writ are two copies of a form entitled “Garnishee’s Answers to Interrogatories for
Property Other Than Earnings.” The writ instructs SSA not to release any amounts withheld
until 20 calendar days after it serves the writ, its interrogatory answers, and other
required papers on the wage earner. The writ provides that it is effective for 120
calendars days after service on the agency or 120 calendar days after the date of
expiration of an earlier writ, whichever is later. Writ at 3, 6, 7(A).
The writ directs SSA to withhold 65% of David’s monthly retirement benefit. Writ at
3,
7(A). SSA has not released any amounts withheld to the judgment creditor. The judgment
creditor’s attorney recently informed you that David filed for bankruptcy on October
15, 2013. The attorney requests that SSA immediately release any funds withheld on
or before October 15, 2013, to David; and that funds withheld after the bankruptcy
filing date be distributed in accordance with the writ.
Analysis
1. The Writ Is Valid on Its Face and Was Properly Served on SSA
On its face, the writ comports with Utah law. A court of competent jurisdiction issued
the writ, and it was mailed or hand-delivered to an SSA field office. [1] The writ indicates that it is to collect alimony, and has enough information (full
name and last four digits of the Social Security number) for the agency to identify
the person whose benefit payments the writ will affect. See 5 C.F.R. § 581.203.
2. SSA Must Comply with Utah’s Maximum Withholding Laws
The writ directs SSA to withhold 65% of the debtor/wage earner’s monthly benefit.
Writ at 3, ¶ 7(A). This amount exceeds that allowed under Utah law. While the Consumer
Credit Protection Act (CCPA) permits a maximum withholding rate of 65%, see 15 U.S.C. § 1673, [2] a state may provide greater protection to debtors than the CCPA. See POMS GN 02410.215. Utah is such a state; thus, SSA must comply with Utah’s withholding limits.
Under Utah law, the amount garnished may not exceed the lesser of 25% of the disposable
earnings for the pay period; or the amount by which the disposable earnings exceed
30 times the federal minimum hourly wage. See Utah Code Ann. § 70C-7-103(2); Utah R. Civ. P 64D(a)(1), (2). “Disposable earnings”
mean that part of the earnings of an individual remaining after the deduction from
those earnings of amounts required by law to be withheld by law (including Federal
and state income taxes, FICA taxes, Medicare taxes). See Utah Code Ann. § 70C-7-103(1)(a); Utah R. Civ. P. 64(a)(4); see also Utah Code Ann. § 70C-7-103(1)(a).
Here, David’s monthly retirement benefit, minus the deductions required by law, is
$2036. This reflects David’s monthly disposable earnings; 25% of this amount is $509.
For a monthly payment, 30 times the federal minimum hourly wage is $941.76. [3] David’s monthly disposable earnings (i.e., his retirement benefit minus deductions
required by law) exceeds this amount by $1,094.64.
The amount subject to garnishment is the lesser of these two figures, or $509. According
to the SSA garnishment notices at issue (see attached), the agency has withheld 60%
of the wage earner’s monthly benefit or $1,221.60 since August 2013. SSA must return
excess amounts withheld to the wage earner.
3. SSA Must Follow a Writ’s Directives That Comply with State Law and Are Not Contrary
to Federal Law
Service of the Writ and Other Required Papers Required by Utah Law
The federal government has waived its sovereign immunity for purposes of enforcement
of alimony obligations, see 42 U.S.C. § 659, which means SSA must comply with Utah garnishment procedures that
do not conflict with federal law. Therefore, SSA must serve the writ and the other
required papers according to the writ’s directives. Further, as the writ directs,
SSA may not release the funds withheld until 20 days after SSA serves these documents
on the wage earner. These documents include instructions to contest the garnishment.
The SSA garnishment notices the wage earner received are insufficient for this purpose.
However, the interrogatories attached to the writ are for “property other than earnings,”
rather than “earnings.” Social Security benefits are earnings under Utah law. See Utah R. Civ. P. 64(a)(5). Thus, it appears that the judgment creditor provided the
wrong set of interrogatories. As such, we recommend that SSA not answer the interrogatories
provided and answer instead the interrogatories specific to “earnings” (attached,
also available at the link provided in footnote 4). Since David is not an SSA employee,
SSA is only obligated to answer section (1) of the form and may skip the remaining
questions. However, we recommend that SSA complete the remaining sections of the form,
particularly section (4), which contains detailed instructions for calculating the
maximum withholding under Utah law. (For the reasons explained below, the writ at
issue is enforceable for only 120 days from the date of service, not one year, as
reflected under section (3)(b) of the attached correct interrogatories.)
We note that the interrogatories served with the answer and the ones that we recommend
you complete both request information about David’s benefit amounts. Ordinarily, the
Privacy Act and Social Security Act would prohibit SSA from disclosing information
about David’s benefit amounts without his consent. See 5 U.S.C. § 552a; 42 U.S.C. § 1306(a). Here, however, a routine use specifically allows
the disclosure. See System of Record Notices, Master Beneficiary Record, http://www.socialsecurity.gov/foia/bluebook/60-0090.htm, (Routine use 22 allows disclosure “[t]o a party named in an order, process, or interrogatory,
in accordance with section 459 of the Social Security Act, if a designee of the Agency
is served with any such order, process, or interrogatory with respect to an individual’s
child support or alimony payment obligations”). Thus, the information requested in
the interrogatories may be disclosed as directed by the writ.
The Writ’s Enforcement Period
The writ is not enforceable for longer than 120 days, even if the debt is not satisfied.
A writ of continuing garnishment applies to payments to the wage earner from the effective
date of the writ until the earlier of the following: 120 days; the last periodic payment;
the judgment is stayed, vacated or satisfied in full; or the writ is discharged. Utah
R. Civ. P. 64D(l)(2)(A)-(D). “A writ is effective upon service.” Id. 64(d)(3)(A).
We note that for writs served on or after November 1, 2013, a writ of continuing garnishment
may remain in effect for one year, rather than 120 days. See UT Order 13-0018, Utah R. Civ. P. 4D(l)(2)(A) (effective Nov. 1, 2013). In this case,
the writ was served prior to November 1, 2013, so this provision does not apply.
4. David’s Bankruptcy Does Not Affect the Writ
We have confirmed that David filed for bankruptcy on October 15, 2013. However,
David’s bankruptcy petition does not affect the garnishment order. The bankruptcy
code specifically provides that the filing of a bankruptcy petition does not operate
as a stay “with respect to the withholding of income . . . for payment of a domestic
support obligation under a [judicial order].” 11 U.S.C. 362(b)(2)(C); see also POMS GN 02410.221. A debtor’s right to receive social security benefits may be exempted from property
of the bankruptcy estate. See 11 U.S.C. 522(b)(2), (d). However, David did not list his social security benefits
as exempt property in his bankruptcy petition. In addition, although property that
is exempt from the bankruptcy estate is ordinarily not liable for any of the debtor’s
debts, there is an exception for domestic support obligations, which are not subject
to discharge in bankruptcy. See 11 U.S.C. 523(c)(1); 11 U.S.C. 523(a)(5). Thus, David’s bankruptcy does not change
SSA’s obligation to enforce the writ in accordance with state law.
Discussion
Federal law limits the percentage of an obligor’s aggregate disposable earnings that
may be subject to garnishment to 50%, if the obligor is supporting another spouse
and/or child. If not, the limit is 60%, except the limits are 55% and 65%, respectively,
if the obligor is more than 12 weeks in arrears. See 15 U.S.C. § 673(b)(2)(B) (Consumer Credit Protection Act (CCPA)); POMS GN 02410.215(3). Further, the CCPA’s implementing regulations provide that “[a]n obligor shall
be considered to be supporting a spouse, dependent child, or both, only if the obligor
provides over half of the support for a spouse, dependent child or both.” 5 C.F.R.
§ 581.402(a)(1). Thus, the agency may not apply the lesser percentages, unless “the
obligor asserts by affidavit, or other acceptable evidence,” that he or she provides
over half of another spouse’s and/or dependent child’s support. Id. Other acceptable evidence might include supporting affidavits (e.g., from the obligor’s
current spouse) or a recent tax return that reflects filing status, exemptions, etc.
consistent with the beneficiary’s allegation that he or she provides more than half
support. See id. § 581.302(a)(2); Memorandum from Chief Counsel, Assistant Regional Counsel, R7, to
Ass’t Reg. Comm., Definition of “Head of Household” (March 19, 1990).
In our opinion, the beneficiary’s marriage certificate and the motion for an order
establishing support of a second family are insufficient proof that he provides over
half support to a second family. Although the motion includes the beneficiary’s sworn
statement, this evidence substantiates only that the beneficiary remarried in September
2009. The beneficiary assumes that because he remarried, he “is, therefore, supporting
a second family.” But the mere fact of marriage does not establish that the beneficiary
is providing any support for his new spouse—let alone over half support. Assuming
the field office would concur, the agency may not comply with the beneficiary’s request
to reduce the withholding percentage to 55%. However, the beneficiary may subsequently
present additional evidence that he provides over half support to a spouse and/or
dependent child. If the field office finds this evidence sufficient, that office must
forward copies to the beneficiary’s former spouse (or her representative) and to the
issuing court, “together with notification that the obligor’s support claim will be
honored,” i.e., notice that the agency will limit withholding to 55%. 5 C.F.R. § 581.402(c).
If the beneficiary’s former spouse disagrees with the reduced withholding percentage,
she “should immediately refer the matter to the court, or other authority, for resolution.”
Id. §581.402(a)(3).
Conclusion
SSA must comply with the garnishment procedures set forth in the writ that do not
conflict with Utah or federal law. Specifically:
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•
SSA may withhold only $509 from David’s monthly Social Security benefit and must return
excess amounts withheld to him.
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•
SSA should serve the writ and the other required papers, including answers to the
correct interrogatories, in accordance with the writ, but cannot release amounts withheld
until 20 calendar days after said service on the wage earner.
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•
Because SSA received service of the writ prior to November 1, 2013, it is not enforceable
for longer than 120 days after receipt.
David’s bankruptcy does not affect SSA’s obligation to enforce the writ in accordance
with state law. We recommend that you contact us immediately, if you receive a bankruptcy
court order directing SSA to pay the amounts withheld directly to a trustee.
John Jay. Lee
Acting Regional Chief Counsel, Region VIII
By_____________
Yvette G. Keesee
Assistant Regional Counsel