General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 2
March 2000




Federal law and regulations create the authority to garnish the wages of federal civilian employees and military personnel in order to collect child support. Federal agencies are required to comply with these regulations. Lawyers who are seeking to help clients collect support need to familiarize themselves with these legal requirements.

Legal Process. To start a garnishment, the issuing entity must serve the designated agent for the agency with legal process. "Legal process" is any order in the nature of a garnishment. A court of competent jurisdiction can issue the legal process. Authorized officials, including state agencies, can issue legal process pursuant to a court order or state or local law. The legal process must direct the governmental entity to make payments from the obligor's wages to satisfy a legal support obligation. A federal agency cannot honor court orders that direct the obligor to make payments but do not require the employer to make deductions. Garnishment payments are deducted from the obligor's disposable earnings.

Service of Legal Process. The issuing entity can serve legal process by regular U.S. mail, fax, or personal service. The legal process should designate, on its face, that it is being brought to enforce a support obligation, otherwise a certified copy of the underlying court order must accompany the legal process. Court orders that seek to enforce an arrearage obligation must provide for such arrears on the face of the order. It is advisable to include the amount of arrears owed and the amount of the arrearage payment. The legal process must provide sufficient information to correctly identify the obligor. The obligor's Social Security number is the best way to identify the obligor.

The designated agent must send the obligor written notice of the action being taken to enforce the support obligation. Along with that notice the agency sends a copy of the legal process as well as other information, including the maximum garnishment limitations authorized by the Consumer Credit Protection Act (CCPA) and the percentage or amount of the deduction. The designated agent will honor legal process that appears to be valid on its face and complies with the requirements of federal regulations. The agency will convert the order to match the pay cycle of the respective agency. The governmental entity must notify the issuing authority if money is not available to pay the support obligation and if the obligor is no longer an employee of that agency.

The CCPA establishes the maximum garnishment percentages. State maximums may be lower than authorized by the CCPA, but cannot be higher. The agency will follow the lower state maximum percentage if the withholding order so provides. The DFAS has adopted a policy to allocate based on a maximum of 50 percent.

The garnishment will terminate in accordance with the court order. If the garnishment is to continue until "further order of the court" a termination order is necessary in order to stop the garnishment. Underlying court orders may include the names and birth dates of the children covered by the support obligation to help determine whether the garnishment is to be terminated upon a child reaching the age of majority.

Military personnel are subject to the same garnishment rules as federal civilian employees. In addition to garnishment, active duty military personnel are also subject to statutory allotments. A statutory allotment is a form of garnishment for child and spousal support that applies only to active military personnel. The federal regulation governing statutory allotments defines who is authorized to submit a notice of statutory allotment. The authorized person must prepare the statutory allotment notice to comply with the requirements specified in the regulation, otherwise the DFAS cannot honor the notice. The statutory allotment procedure requires that current support be owed and arrears of two months or more exist.

The voluntary separation incentive (VSI) was a program of financial incentives designed to encourage eligible military personnel to volunteer to leave the armed forces before October 1, 1995. This program was not synonymous with early retirement. The VSI program provides annual payments to the former service members. VSI payments are only subject to garnishment for support orders issued pursuant to 42 U.S.C. 659. There is no federal statutory authority to enforce an award of VSI payments as a division of property.

Uniformed Services Former Spouse's Protection Act. The Uniformed Services Former Spouses' Protection Act (USFPA) provides for the division of disposable military retired pay as a division of property, and for direct payment of current child support, child support arrears, and current alimony. The failure to comply with its provisions results in a former spouse being unable to receive direct payments of a member's military retired pay. The former spouse of a retired member of the military can apply for payment of a support obligation under the USFSPA. The Welfare Reform Act provides that child support arrearages can be collected under the USFSPA. It is not possible to collect alimony arrearages under the USFSPA.

In addition to an award of disposable military retired pay as property, a court order may award a former spouse a division of property other than military retired pay. The former spouse may enforce that award through a garnishment withholding order. This award of property must be in addition to an amount of child support or alimony or an award of military retired pay as property. This is the only instance where a separate garnishment order is required or allowed under the USFSPA. Court orders that award a division of property but do not award a portion of military retired pay as property cannot be enforced under the USFSPA. Military retired pay is not subject to garnishment for commercial debts. The USFSPA is the only vehicle available to recover that portion of military retired pay awarded to the former spouse as a division of property. The Employee Retirement Income Security Act (ERISA) does not apply to the division of military retired pay as a division of property.

Unlike ERISA cases, there is no need for a Qualified Domestic Relations Order. The divorce decree can specify the division of property. The USFSPA statute specifies that a 'court order' means a final decree of divorce, dissolution annulment, or legal separation. It also includes a court-ordered, ratified, or approved property settlement incident to such a decree. The award of a portion of military retired pay should specify: the name, address, and Social Security number of the parties; the dates of marriage, divorce, military service, and retirement; and the specific dollar amount or percentage awarded under the USFSPA. An award of a specific dollar amount will not provide the recipient with cost of living increases. Court orders containing a formula must specifically set forth all elements of the formula. If the formula is not complete, the agency cannot honor the court order until the former spouse serves DFAS with a clarifying order. The USFSPA requires that a division of property be expressed as a specific amount or as a percentage of disposable retired pay.

To obtain direct payment regarding a division of property from DFAS, the parties must be married for ten years, during which the member accrued ten years of creditable service. This is referred to as the 10/10 rule. There is no such requirement for support payments.

The USFSPA contains jurisdictional requirements that must be met to qualify for direct payments. The court must have jurisdiction over the member by reason of the member's residence, other than because of military assignment in the territorial jurisdiction of the court, the member's domicile, or the member's consent to the court's jurisdiction.

Veterans Administration (VA) payments reduce the amount of military retired pay, and consequently may reduce the amount of benefits payable to the former spouse under the USFSPA. In some cases, the member can receive a 100 percent VA waiver. This results in the member receiving no military retired pay. The former spouse will also receive no payments since the member is no longer receiving military retired pay.

Joan M. Burda is a senior associate counsel with the Defense Finance and Accounting Service in Cleveland, Ohio.

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  • This article is an abridged and edited version of one that originally appeared on page 34 of GP Solo & Small Firm Lawyer, October/November 1998 (15:5).
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