On September 5, 2008, you requested our opinion regarding the validity of a Bucks
County Pennsylvania amended garnishment Order dated August 26, 2008 which, by agreement
between the parties, garnishes the social security benefit of Joseph C. P~, SSN ~,
in excess of the maximum percentages established by federal and Pennsylvania law.
The maximum percentages for purposes of garnishment are established by federal and
state law. Because there are no exceptions to the maximum percentages, even in the
case of an agreement between the parties, the amended garnishment Order is not valid.
Joseph P~ receives monthly social security benefits in the amount of $1981.00. Because
of spousal support obligations, the Agency is currently withholding $1188.60 per month,
or 60% of Mr. P~'s social security benefit, in accordance with the maximum percentage
amount permitted under the Consumer Credit Protection Act (CCPA), 15 U.S.C. 1673(b).
On August 28, 2008, Aicha P~ and Joseph C. P~ amended the garnishment order in place
and agreed that "the income attachment in place with the Social Security Administration
can exceed 55% of [Joseph P~]'s disposable net income and submit to PA SCDU the full
amount of the order in the amount of $1930.00 per month, allocated $1880.00 [toward]
support and $50.00 toward arrears." This agreement was memorialized in a Bucks County
Court of Common Pleas, Domestic Relations Section, Order and signed by a Bucks County
Court of Common Pleas judge. The withholding amount proposed in the amended garnishment
Order is equivalent to 97.43% of Mr. P~'s total monthly social security benefit.
The amended garnishment Order was faxed to the Fairless Hills, Pennsylvania field
Section 207 of the Social Security Act (Act) generally prohibits the assignment of
social security benefits, including garnishment. 42 U.S.C. § 407(a). However, the
Social Security Administration has consented to income withholding, garnishment, and
similar proceedings for the enforcement of child support and alimony obligations when
appropriately served with "legal process" to that effect. 42 U.S.C. § 659(i)(5)(A),
(B). The Act defines legal process as "any writ, order, summons, or other similar
process in the nature of garnishment, which is issued by a court or administrative
agency of competent jurisdiction in any State, territory, or possession of the United
States, and which is directed to, and the purpose of which is to compel, a government
entity which holds moneys which are otherwise payable to an individual to make a payment
from the moneys to another party in order to satisfy a legal obligation of the individual
to provide child support or make alimony payments." Id. The term "competent jurisdiction," as used in the above section of the Act, is a
reference to the basic requirement that the court that issued the legal process in
question actually had subject matter jurisdiction to issue that particular type of
writ, order, or summons. See United States v. Morton, 467 U.S. 822, 835-36 (1984). In this case, the Bucks County Court of Common Pleas,
Domestic Relations Section has subject matter jurisdiction over all matters affecting
Mr. P~'s divorce, including matters involving spousal support.
However, although the Court has jurisdiction over issues involving spousal support,
any Order for income attachment must comply with federal and state law. The income
withholding for the enforcement of child support or alimony obligations is subject
to the percentage limitations of the Consumer Credit Protection Act (CCPA), codified
at 15 U.S.C. § 1673. The CCPA limits the amount of garnishment to the lesser of the
State maximum, or
50%, if the beneficiary is supporting a spouse and/or child other than the spouse
and/or child whose support has been ordered;
60%, if the beneficiary is not supporting another spouse and/or child;
55% or 65% respectively, if the garnishment order or other evidence submitted indicates
the original support ordered is 12 or more weeks in arrears.
15 U.S.C. § 1673(b). See also POMS GN 02410.215 ("How Garnishment Withholding Is Calculated). The Pennsylvania maximum percentages
mirror those set forth in the CCPA. The statutory section dealing with attachment
of income for support matters provides that "the maximum amount of any attachment
under this section shall not exceed the limits set forth in the [CCPA]." 23 Pa.C.S.
§ 4348(g). There are no exceptions under the Pennsylvania statute to the maximum percentage
amounts set forth in the CCPA.
In this case, the CCPA and the Pennsylvania statute would preclude the Agency from
withholding over 97% of Mr. P~'s benefits. Even if Mr. P~ is in arrears of 12 weeks
or more, the maximum percentage amount permitted to be garnished from his social security
benefit is no more than 65%. As there are no statutory or common law exceptions to
the maximum percentage amounts, an agreement between the parties authorizing garnishment
above the established maximum percentages does not change this result. This is especially
true in this case where we believe that Mr. P~ is not represented by an attorney and
may not have been aware of the consequences of his agreement. Therefore, the Agency
is prohibited by state and federal law from honoring the Bucks County Court of Common
Pleas Order garnishing Mr. P~'s social security benefits in excess of the statutory
You also indicated that the garnishment Order was faxed to the field office and requested
our opinion regarding whether the faxed garnishment Order constitutes proper service.
The Pennsylvania attachment of income statute provides that "[t]he employer of an
obligor shall be given notice of the attachment as provided in the Rules of Civil
Procedure governing support." 23 Pa.C.S. § 4348(i). The Pennsylvania Rules of Civil
Procedure governing support provide only that "the order for income withholding shall
be served upon the obligor's employer."
Pa. R. C. P. 1910.21(d)(1). Rule 1910.21 does not specify any particular manner of
service required. However, the rule regarding service of non-original process permits
service by facsimile. Pa. R. C. P. 440(d). Therefore, as the Pennsylvania Rules of
Civil Procedure do not prohibit service by facsimile, this method of service is most
Eric P. K~
Acting Regional Chief Counsel
Assistant Regional Counsel