You asked whether the date of a divorce decree constitutes the date that the divorce
was final in Montana. You also asked whether the divorce decree could be used to garnish
Social Security benefits for the payment of spousal support.
Because the time period to appeal the divorce decree passed as of February 28, 2011,
and we have no information suggesting an appeal was filed, the agency may consider
the date the district court entered the decree as the date the divorce was final.
However, the decree alone cannot be used to garnish Social Security benefits.
On January 27, 2011, a Montana district court judge issued a “Decree of Dissolution”
dissolving the marriage Raymond R. A~ (the number holder) and Alberta J. A~.
The decree’s relevant provisions provide as follows:
That the wife receive maintenance in the amount of $600 per month for life.
You informed us that the agency has withheld $600 from Raymond’s benefits. We also
understand that the agency has not paid this amount to Alberta.
The Date of the Decree Is the Date the Divorce Was Final in the Absence of a Timely-Filed
Under Montana state law, a decree of dissolution of marriage is final when entered,
subject to right of appeal. See Mont. Code Ann. § 40-4-108. A party must file any appeal of the final decree or judgment
within 30 days of entry of judgment. See Mont. Code Ann. § 40-4-103 (Montana Rules of Civil Procedure apply to divorce proceedings);
Mont. Code Ann. § 25-21-1, Rule 4(5)(a) (time for filing appeal). If neither party
appealed the decree (and we have no indication of such), the final date of divorce
was January 27, 2011.
The Decree Is Not an Order to Enforce Spousal Support
Section 207 of the Social Security Act (Act) generally prohibits the assignment or
garnishment of Social Security benefits. See 42 U.S.C. § 407(a). However, in 1975, 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). As such, the agency
is subject to state laws for the enforcement of child support and alimony obligations
through withholding, garnishment or other appropriate legal process. See 42 U.S.C. § 659(a). The agency is required to comply with a court order or other “legal
process” to enforce legal obligations for spousal 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). “Legal process” includes any writ, order, summons, or similar
process in the nature of garnishment; it can also include attachment, writ of execution,
income execution order or wage assignment. POMS GN 02410.200(B).
Here, the divorce decree establishes that Raymond has a legal obligation to provide
spousal support in the amount of $600 per month. But the divorce decree by itself
is not an order to enforce that legal obligation. Thus, the divorce decree standing alone cannot be used to
garnish Social Security benefits.
Under Montana law, a party seeking to enforce an order for spousal support could ask
the court to order an assignment of periodic earnings. See Mont. Code Ann. § 404-4-207. Under this provision, the court may order the person
obligated to pay support or maintenance to make an assignment of a part of the person’s
periodic earnings or income to the person entitled to receive the payments. The assignment
is binding on an employer, trustee, or other payor of the funds (such as SSA) two
weeks after service of notice that the requested assignment has been made. If Alberta
obtains a valid court order directing an assignment of Raymond’s Social Security benefits
under this provision, the agency could comply with the order.
Alternatively, a party seeking to enforce an order for spousal support could obtain
a writ of execution. A writ of execution can be used to enforce a money judgment or
an order to pay a sum of money (such as in a divorce decree). See Mont. Code Ann. §§ 25-13-201, 25-13-204. Under a writ of execution, the judgment debtor’s
earnings can be levied, including Social Security benefits if the judgment is for
child support or spousal support. See Mont. Code Ann. §§ 25-13-402, 25-13-608. If Alberta obtains a valid writ of execution,
the agency could withhold Raymond’s benefits and pay them to Alberta in compliance
with the writ. The requirements for a valid writ of execution are outlined in detail
in POMS PR 04505.029 (Writ of Garnishment-Montana), so we do not repeat them here. Montana law provides
additional measures to enforce orders for child support, which include income deductions
and income withholding. See Mont. Code Ann. §§ 40-5-301 et. seq., 40-5-401 et. seq. We do not discuss these provisions, since they do not apply to spousal support.
In short, the divorce decree standing alone is not an order to enforce collection
of spousal support. Under Montana law, Alberta can seek an order to enforce collection
of spousal support, including asking the district court to order an assignment of
the number holder’s benefits or obtaining a writ of execution that could be used to
garnish the number holder’s benefits.
The date of the divorce decree (January 27, 2011) constitutes the final date of divorce,
absent any evidence of appeal. The divorce decree itself is not an order to enforce
spousal support and cannot be used to garnish Social Security benefits.
John J. L~
Regional Chief Counsel, Region VIII
Douglas A. F~
Assistant Regional Counsel