TN 9 (04-12)
PR 04505.033 New Jersey
A. PR 12-075 Luis – Court Ordered Garnishment of Benefits (Child Support)
DATE: March 15, 2012
An inquiry was made as to whether the agency may garnish the Social Security benefits to pay for the legal fees. Under 42 United States Code (USC), Section 659, amounts required to be paid under an order of child support may include other related costs and fees including attorney’s fees. Therefore, an order of garnishment against Title II benefits may include legal fees incurred to secure child support.
This office is responding to your request for legal advice regarding whether the agency may garnish the Social Security benefits of Luis to pay for the legal fees incurred by Wendy to secure child support from Luis.
On December 8, 2011, the New Jersey Superior Court Chancery Division-Family Part for Hudson County issued an Order granting Wendy’s request for child support from Luis .
The Social Security Act (the Act) indicates Social Security benefits are generally not subject to garnishment. 42 U.S.C. § 407(a). The Act does, however, provide an exception to this general rule: Social Security benefits due to any individual shall be subject to legal process brought by an obligee, to enforce the legal obligation of the individual to provide child support. 42 U.S.C. §§ 666(a)(1), (b), 659(a), (h)(1)(A)(ii). The Act defines the term “legal process” as any writ, order, summons, or other similar process in the nature of garnishment issued by a court of competent jurisdiction. 42 U.S.C. § 659(i)(5); Programs Operations Manual System (POMS) GN 02410.200B. It may include, but is not limited to, an attachment, writ of execution, income execution order, or wage assignment. See POMS GN 02410.200B. The Act also defines the term “child support” as the amounts required to be paid under a judgment, decree, or order issued by a court for the support and maintenance of a child. 42 U.S.C. § 659 (i)(2). The term “child support” under the Act may also include “attorney’s fees.” Id.; see also POMS GN 02410.200E (“child support” may include attorney fees “if expressly made recoverable under a garnishment order issued by a court of competent jurisdiction in accordance with applicable State or local law”).
Here, the December 8, 2011 Superior Court’s Order awarding child support from Louis results from legal process as defined by the Act and was issued by a court of competent jurisdiction in accordance with New Jersey law. The Order states that Luis “shall be responsible” for child support payments and Wendy’s attorney’s fees “to be paid through Luis’s social security benefits.” The Order directing garnishment of Luis’s Social Security benefits includes attorney’s fees incurred by Wendy in pursuit of child support payments from him and, therefore, falls within the exception of the Act noted above. Accordingly, Wendy may recover attorney’s fees through garnishment of Luis’s Social Security benefits.
The Agency may garnish Luis’s benefits pursuant to the December 8, 2011 New Jersey Superior Court Order.
Mary Ann Sloan
Acting Regional Chief Counsel, Region VIII
Jason P. Peck
Assistant Regional Counsel