You requested a legal opinion on whether the agency may enforce a “Writ of Execution”
to withhold a portion of number holder David’s monthly Social Security disability
benefits for past due child support. After receiving your request, we learned that
on January 25, 2011, the court issued an order quashing the writ and giving it no
further force or effect.
Because the writ is valid on its face and was properly served, the agency may release
to the Petitioner the maximum withholding permitted by law for 120 days after service
of the writ. The order quashing the writ has prospective effect only. Since David’s
child support obligation is more than 12 weeks in arrears, the agency is permitted
to withhold 55% or 65% of his monthly disposable earnings (discussed below), depending
on whether he is supporting another wife or child, for 120 days after service of the
writ. The agency may release this sum to the Petitioner but must return excess benefits
withheld to David.
On or about March 18, 2010, the Clerk of the Montana Fourteenth Judicial District
Court, Musselshell County, issued the writ to collect a judgment against David for
back child support obligations. Information that you provided, including documents
filed with the court, suggest that the Petitioner’s attorney Katie personally served
the writ on the Billings, Montana Filed Office on or about March 19, 2010, although
you have not been able to confirm the date and method of service.
The writ provides as follows:
on November 28, 2003, the court ordered David to pay child support of $494.00 per
month until May 1, 2017;
without a court order, he stopped making child support payments after June 1, 2007;
this resulted in back child support totaling $16,302.00 as of March 2010;
on September 15, 2003, the court ordered David to pay the Veteran’s benefits he received
for Petitioner and for their minor child to the Petitioner;
on January 1, 2004, he stopped submitting the Veteran’s benefits he received for his
daughter to the Petitioner; and
this resulted in arrearages totaling $19,662.00, as of March 2010.
On June16, 2010, David, through his attorney, filed a “Motion to Quash Writ of Execution
and for Order to Show Cause.” David challenged the writ on numerous grounds, but did
not specifically challenge the past due Veteran’s benefits.
On January 25, 2011, the court issued an “Order Granting Motion to Quash Writ of Execution,
Denying Motion for Contempt, and Denying Request for Attorney Fees and Costs.” In
quashing the writ and determining that it “shall be of no further force or effect,”
the court found that David “was not accorded due process with notice and a meaningful
opportunity to be heard regarding the seizure of his benefits.” Order, p. 4.
Regarding the child support obligations, the court credited the Social Security benefits
paid to David’s minor child toward his monthly child support obligation of $494.00
and deemed his obligation satisfied “from June 2007 to the present and each subsequent
month that the child receives such benefits.” See id. at 8. However, the court also determined that David owed the Petitioner “back child
support consisting of Veteran’s benefits” that David received, but did not pay to
the Petitioner, in the amount of $186 per month since January 1, 2004. The court denied
David’s request that the Petitioner be required to return any money already received
by the Social Security Administration; rather, the court ordered that monies received
by the Petitioner pursuant to the writ shall be credited toward this arrears.
You informed us that David’s monthly disposable earnings total $1,261 (his primary
insurance amount of $1,357.80 less his Medicare Part B premium of $96.50). We estimate
that as of January 25, 2011, the effective date of the order quashing the writ (discussed
below) the agency had withheld $5,674.50 in benefits. We understand that this amount
has been withheld from David’s benefits, but has not yet been paid to the Petitioner.
The Writ is Valid on Its Face and Was Properly Served
Section 207 of the Social Security Act generally prohibits the assignment or garnishment
of Social Security benefits. See 42 U.S.C. § 407(a). In 1975, however, Congress amended the Act and created a narrow
exception to the anti-assignment provision by providing that old-age, survivors, and
disability insurance benefits may be withheld to enforce an individual’s legal obligation
to provide child support or alimony. See 42 U.S.C. § 659; 5 C.F.R. §§ 581.101(a)(1), 581.103(c); POMS GN 02410.200; see also Senate Report No. 93-1356 (1974 U.S.C.C.A.N 8133, 8145-58) (explaining that
statutory changes were intended to strengthen enforcement of child support). Under
this amendment, SSA is subject to state laws for the enforcement of child support
and alimony obligations through withholding, garnishment or other legal process. See 42 U.S.C. § 659(a). The Agency is required to comply with a court order to enforce
legal obligations for child support that, on its face, conforms to the laws of the
jurisdiction where it was issued. See 5 C.F.R. § 581.305(a)(1). The writ, on its face, conforms to the laws of the state
The inquiry into whether an order is valid on its face is an examination of the procedural
aspects of the legal process involved, not the substantive issues. Whether a process
conforms or is regular “on its face” means just that. Facial validity of a writ need
not be determined “upon the basis of scrutiny by a trained legal mind.” Nor is facial
validity to be judged in light of facts outside the writ’s provisions that the person
executing the writ may know. United States v. Morton, 467 U.S. 822, 828 n.10 (1984) (citing In re M~, 61 Comp.Gen. 229, 230-31 (1982)).
In Montana, a writ of execution must: (a) be issued in the name of the state of Montana,
sealed with the seal of the court, and subscribed by the clerk; (b) be directed to
the sheriff or levying officer; (c) intelligibly refer to the judgment, stating the
court and the county where it was entered and, if it is for money, the amount of money
and the amount actually due on the judgment; and (d) require the sheriff or levying
officer to act substantially as provided in this part.
Mont. Code Ann. § 25-13-301. The writ meets these requirements.
The writ reflects that Montana Fourteenth Judicial District Court, Musselshell County,
issued the writ in the name of the state of Montana. The writ reflects the seal of
the court and is signed by the clerk. The writ is directed to the levying officer.
The writ intelligibly refers to the judgments for child support. Writ, pp. 1-2. The
writ reflects that the Musselshell County District Court issued the September and
November 2003 child support orders. See id. The writ states that David owes past due child support totaling $35,964.00 as of
March 2010. Id. Lastly, the writ requires the levying officer to act substantially as provided in
Part 3 of the statute (Mont. Code Ann. §§ 25-13-301–25-13-308). The writ is generally
consistent with the statutory provisions in Part 3. Therefore, we believe the writ
is valid on its face.
In addition to being facially valid, the writ must be served in a manner prescribed
by Montana state law. See POMS GN 02410.205. Montana permits personal service by a sheriff, deputy sheriff, constable, or any
other person over the age of 18 not a party to the action or service by mail, provided
the agency consents in writing to service by mail. See Mont. R. Civ. P. 4D; Mont. Code Ann. § 25-13-402(1)(b)(i); see also 5 C.F.R. Pt. 581, App. A (noting that “[f]or the garnishment of benefits under
title II of the social Security Act, legal process may be served on the office manager
at any Social Security District or Branch Office”). Your opinion request suggests
that the petitioner’s attorney (who is not a party to the action) served the writ
on the Billings Field office, presumably on a manager. Therefore, we believe the writ
was properly served.
Because the Writ is Valid on Its Face and Was Properly Served, the Agency May Release
to the Petitioner the Maximum Withholding Permitted under Montana Law
The maximum withholding the laws of any state may authorize is limited by the Consumer
Credit Protection Act (CCPA). See 15 U.S.C. § 1673. Like the CCPA, Montana law limits withholding to 50% David’s disposable
earnings, if he is supporting a spouse and/or child (other than the spouse and/or child whose
support has been ordered). If he is not supporting another spouse and/or child, the
law limits withholding to 60%, except the limits are 55% and 65% respectively, if
he is more than 12 weeks in arrears. The writ reflects (and the court held) that David’s
Veteran’s benefits payments for his daughter constituted child support and were more
than 12 weeks in arrears. His monthly aggregate disposable earnings (his PIA less
withholdings required by law, i.e., his Medicare Part B premium) total approximately
$1,261. Therefore, the agency was permitted to withhold and may release to the Petitioner
55% or $693.55 per month for 120 days after service, if he was supporting another
wife and/or child, or 65% or $819.65 per month for the same period, if he was not.
See Mont. Code Ann. § 25-13-402(6) (“A levy upon the earnings of a judgment debtor continues
in effect for 120 days [after service] or until the judgment is satisfied, whichever
occurs first.”). Because the writ is only in effect for 120 days, the agency must
return excess benefits withheld to David. 
The Court’s Order Quashing the Writ of Execution Has Only Prospective Effect
In response to David’s motion to quash the writ, the court agreed that the Social
Security benefits paid to his minor child satisfied his obligation to pay $494 per
month in child support, and thus the court concluded that David owed no arrearage
for this portion of his support obligation. However, the court determined that David
owed the Petitioner $186 per month since January 1, 2004, representing “back child
support consisting of Veteran’s benefits.”  Importantly, the court denied David’s request that any payments received under the
writ be returned to him; rather, the court ordered that such payments should be credited
toward the arrears. Thus, the order quashing the writ has only prospective effect.
The order quashing the writ allowed the Petitioner to keep monies the court presumed
she had already received under the writ and credited this amount to back child support
consisting of Veterans’ benefits. Since the writ is valid on its face and was properly
served, the agency may release to the Petitioner the amount she would have received
under the writ, i.e., 55% or 65% of David’s monthly disposable earnings of $1,261,
depending on whether he is supporting another wife and/or child, for 120 days after
service of the writ. The agency must return excess benefits withheld to David.
John Jay Lee
Acting Regional Chief Counsel, Region VIII
Yvette G. Keesee
Assistant Regional Counsel