Friday, March 2, 2007

Social Security Benefits and Child Support

I find it odd that many people I talk to receiving Social Security benefits do not know that their money cannot be be taken by a creditor. The governing law bars the assignment or attachment of Title II benefits through execution, levy, attachment, garnishment or any other legal process unless another federal law specifically allows a creditor to take the Social Security money. Taxes and student loans can be offset against Social Security benefits.

When it comes to child support, you got to distinguish between Social Security Disability and Social Security Supplemental Income (SSI). The Department of Health and Human Services has succinct statements on when the different kinds of benefit can be attached:

SSD benefits are attachable for child support purposes, because section 207 of the Act is expressly overridden by section 459(a) of the Act (42 U.S.C. 659(a)). Section 459 provides that payments from the Federal government, the entitlement to which is based upon remuneration for employment, are subject to income withholding or other legal process brought by a State IV-D agency or an individual obligee for purposes of enforcing child support obligations. Section 459(h)(1)(A)(ii)(I) of the Act (42 U.S.C. 659(h)(1)(A)(ii)(I)) specifies that payments under Title II of the Act, which includes SSD payments, are considered to be based upon remuneration for employment. In addition, federal regulations governing federal personnel at 5 C.F.R. 581.103(c)(1) specify that SSD is attachable for child support purposes.

SSD funds can be attached to satisfy child support obligations even if the support entitlement has been assigned to the State. The assignment does not change the nature of the debt, only the payee. See, Knickerbocker v. Norman, 938 F.2d 891 (8th Cir., Iowa,1991), Shepherd v. Shepherd, 467 N.W.2d 237 (Iowa 1991).

The provisions of section 207(a) of the Act (42 U.S.C. 407(a)), prohibiting attachment of benefits, are specifically made applicable to Supplemental Security Income (SSI) benefits pursuant to section 1631(d)(1) of the Act (42 U.S.C. 1383(d)). Federal regulations at 5 CFR 581.104(j) also specify that SSI benefits are not subject to garnishment. In addition, section 459 of the Act (42 U.S.C. 659), which overrides section 207 of the Act, provides that only benefits which are based upon remuneration for employment are subject to legal process for child support enforcement. Supplemental Security Income (SSI) payments are not based upon remuneration for employment; rather, they are provided based on need. Some courts have held that SSI is a form of public assistance, intended to protect the individual recipient from poverty. See, Becker County Human Servs. Re Becker County Foster Care v. Peppel, 493 N.W.2d 573 (Minn. App. 1992), Tennessee Dept. of Human Servs ex rel Young v. Young, 802 S.W.2d 594 (Tenn. 1990). SSI payments are not included as moneys subject to process in section 459(h) of the Act.

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