TN 4 (10-11)

PR 06205.029 Montana

A. PR 12-001 Date of Divorce Pursuant to Decree of Dissolution and Garnishment -- Montana (NH Raymond A~)

DATE: September 30, 2011

1. SYLLABUS

Under Montana law, a divorce decree is final on the date the district court enters it, absent evidence of appeal.

2. OPINION

 Question Presented

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.   

Short Answer

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.   

Background

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.

DISCUSSION

The Date of the Decree Is the Date the Divorce Was Final in the Absence of a Timely-Filed Appeal

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 a