Question: Can I Garnish Social Security Disability (SSD) benefits for child support arrears?
Answer: Yes.
As you may know, Social Security Disability (SSD) payments under Title II of the Social Security Act (the Act) are not subject to attachment or other legal process, pursuant to section 207(a) of the Act (42 U.S.C. 407(a)) meaning that creditors cannot garnish Social Security monies. No other provision of law can override this protection “except to the extent that it does so by express reference to this section.” Section 207(b) of the Act, 42 U.S.C. 407(b).
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).
Question: Can I garnish SSD benefits already deposited in a bank account?
Answer: Yes. While the U.S. Supreme Court has held that Social Security funds deposited into a bank account maintain their protected status and therefore cannot be garnished by most creditors, the fact that SSD funds are attached for child support purposes allows payees to garnish bank accounts holding SSD payments. For example, the child support payor may have received a lump sum in back SSD payments, payee can garnish the bank account where the money is deposited for a nice lump sum payment.
Question: Can Garnish Supplemental Security Income (SSI) benefits for child support arrears?
Answer: No.
Supplemental Security Income benefits are provided based on need. SSI benefits are also protected from garnishment. The first blanket protection is in 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)).
In addition, Federal regulations at 5 CFR 581.104(j) also specify that SSI benefits are not subject to garnishment.
While SSI payments can not be garnished for the enforcement of child support obligations, there is an argument to be made that it is income for purposes of calculating the amount of child support to be paid.
Question: Can I garnish SSI benefits already deposited in a bank account?
Answer: No. The U.S. Supreme Court has held that Social Security funds deposited into a bank account maintain their protected status and therefore cannot be garnished just because they are deposited into a bank account. For example, the child support payor may have received a lumpsum in back SSI payments. Those payments are fully protected from most creditors incluidng those seeking to enforce child support judgments.