You asked whether the agency may honor a Writ of Continuing Garnishment issued by
the Denver District Court and served by the judgment creditor’s attorney via email
and Federal Express on the Colorado Springs Field Office. If so, you asked whether
the agency may make payments directly to the judgment creditor’s attorney.
No. The agency may not honor the writ because it does not constitute legal process,
and service on the agency was not proper under state law. If, however, the agency
subsequently receives proper service of the writ and evidence that it is to satisfy
the judgment debtor’s legal obligation to provide support, the agency may honor the
writ and make payments directly to the judgment creditor’s attorney.
On October 24, 2011, the Denver District Court issued a Writ of Continuing Garnishment.
The writ directed the agency to pay any nonexempt earnings to the judgment creditor’s
attorney to satisfy a judgment for $129,581.78 entered against the judgment debtor,
Douglas, in August 2011, plus interest of $1,732.49 and taxable court costs of $123.00, for a “Principal Balance/Total
Amount Due and Owing” of $131,437.07. The writ does not state that it is a garnishment
for child support or alimony or describe the nature of the underlying judgment.
The judgment creditor’s attorney initially served the writ on the agency by emailing
a copy of it to the Colorado Springs Field Office. The attorney also mailed (via Federal
Express) a certified copy of the writ and of a Support Order to the field office.
The Support Order directs the respondent (Douglas) to pay current support in the amount
of $741.83, plus $100 to satisfy child support arrears of $1,048.36, as of May 15,
2003, for a total payment of $841.83 per month.
The Agency May Not Honor the Writ; It Is Not Legal Process and Service Was Not Proper
As you know, Social Security Title II benefits may be garnished to enforce an individual's
legal obligation to provide child support or alimony. See 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 02410.200(A). The agency must comply with legal process, defined as “any writ, order, summons,
notice to withhold income . . . or other similar process in the nature of garnishment”;
directed to a governmental entity to compel it to make a payment, from moneys otherwise
payable to an individual to another party, in order to satisfy the individual’s legal
obligation to provide child support or alimony; and 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 pursuant to state or local law or pursuant to
section 466(b) of the Social Security Act. See 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f); POMS GN 02410.200(B).
Consistent with the definition of legal process, the writ is directed to the agency
to compel it to make a payment from moneys otherwise payable to the judgment debtor
to the judgment creditor, and a court of competent jurisdiction issued the writ. However,
the agency has not received sufficient evidence that the writ is to satisfy the judgment
debtor’s legal obligation to provide child support or alimony. The writ does not state
that it is a garnishment for support or that the underlying judgment is to enforce
a support obligation. In fact, the agency has yet to receive a copy of the underlying
judgment to determine its nature, and the writ does not refer to the Support Order.
Thus, even after receiving a certified copy of the Support Order, the agency must
infer the purpose of the writ. We do not believe the evidence the agency has received
to date is sufficient to show the writ is to satisfy the judgment debtor’s legal obligation
to provide child support or alimony. Therefore, we conclude the writ does not constitute
Further, even assuming the writ constitutes legal process, it must be facially valid,
i.e., it must conform, on its face, to the laws of the issuing jurisdiction, and service
must be in accordance with the law of the issuing state. See 5 C.F.R. §§ 581.202, 581.305(a)(1); POMS GN 02410.205, 02410.210(A)(3)(b). While the writ appears to be facially valid,  Colorado law requires personal service (hand delivery) of writs of garnishment by
any person age 18 or older who is not a party to the action. See Colo. R. Civ. P. 4(d) (By whom Served), (e) (Personal Service); see also id. 103. Service by email or by mail (Federal Express) does not constitute personal service.
Therefore, the agency may not enforce the writ, even if we had determined it constitutes
legal process, and should return the writ to the issuing court. See POMS GN 02410.205(B)(1).
Federal Garnishment Law and Colorado Law Permit Payment to the Judgment Creditor’s
As indicated above, the agency must honor legal process, which is defined, in part,
as a garnishment order directed to SSA “to make payment from moneys otherwise payable
to an individual, to another party” to satisfy a support or alimony obligation. 5
C.F.R. § 581.102(f). A “party” is defined as “the person or persons to whom alimony
and/or child support payments should be made . . . .” Id. § 581.102(j). We believe that, to decide “the person or persons to whom alimony
and/or child support should be made” requires a consideration of the relevant state
As noted above, under Colorado law, a writ of garnishment for support is the exclusive
procedure for withholding the earnings of a judgment debtor for payment of a judgment
debt for child support or alimony arrearages, and the writ must be in the form and
content of Form 31. See Colo. R. Civ. P. 103 §§ 3(a)(1), (b). Writs of garnishment for support do not explicitly
authorize payment to the judgment creditor’s attorney. They authorize payment “to
the family support registry, the clerk of the court which issued such writ, or to
the judgment creditor . . . .” Colo. R. Civ. P. 103 § 3(g)(2). However, we believe
that Colorado law permits payment of support monies to a judgment creditor’s attorney
because the attorney is an agent for the creditor.
“The attorney-client relationship is that of principal and agent.” Siener v. Zeff, 194 P.3d 467, 471 (Colo. App. 2008) (citation omitted). Therefore, in instances
where the court issues a writ of continuing garnishment to enforce a support obligation
and orders payments to the judgment creditor, the agency may make the payments directly
to his/her attorney. Consistent with this conclusion, Form 31 (Writ of Garnishment
for Support) requires the person completing the form to provide either the judgment
creditor’s name, address, phone number, fax number, and email or that of his/her attorney
in the form’s caption. This suggests further that a garnishee may make payments directly
to the judgment creditor or to his/her attorney.
Moreover, the Colorado Child Support Collection Consumer Protection Act allows a judgment
creditor’s attorney to redirect payments “ordered to be made through a central payment
registry” to the attorney. See Colo. Rev. Stat. Ann. §§ 12-14.1-104(c) (prohibiting a “collector” from attempting
to redirect payments ordered to be made through a central payment registry), 12-14.1-102(b)(III)
(noting the definition of “collector” does not include an attorney licensed to practice
law in the state of Colorado). Consequently, if the court had issued the correct writ
(Form 31) and checked the box directing payments to the Family Support Registry, rather
than to the judgment creditor, Colorado law would appear to permit the agency to make
payments directly to the judgment creditor’s attorney.
The agency may not honor the writ because it does not constitute legal process, and
service on the agency was not proper under state law. If, however, the writ were enforceable,
Colorado law would permit the agency to make payments directly to the judgment creditor’s
John Jay Lee
Regional Chief Counsel, Region VIII
Yvette G. Keesee
Assistant Regional Counsel