TN 17 (02-15)

PR 04015.055 Wisconsin

A. PR 15-053 Wisconsin – Voluntary Marital Agreement as Court Ordered Garnishment of M~’s Title II Benefits –REPLY

DATE: December 17, 2014

1. SYLLABUS

SSA was unable to honor the “Voluntary Marital Agreement” that was received from the beneficiary’s ex-spouse for having his wages garnished for spousal support. This agreement was filed with the court on the day of their divorce; however, the court did not order any spousal support or maintenance. Since this document was filed with the court, but not issued by a court, we will not honor the agreement and court-ordered garnishment does not apply. In addition, the beneficiary could use the anti-assignment clause as a personal defense if his ex-spouse seeks enforcement of this agreement.

2. OPINION

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

  1. 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.

  2. 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.

  3. 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


Footnotes:

[1]

With the materials you provided, you refer to M~ “Cema” as the numberholder (NH) in question. However, all of the accompanying court orders pertain to M~ “Z~.” Therefore, we assume C~ is a typographical error.


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http://policy.ssa.gov/poms.nsf/lnx/1504015055
PR 04015.055 - Wisconsin - 02/10/2015
Batch run: 02/10/2015
Rev:02/10/2015