A family approached me with this situation: Judgment issued for wife. Garnishment issued on all bank accounts including joint accounts where husband's social security disability payments are deposited. Husband has now had wife's name removed from the accounts. However, he wants the garnisher to give him back his social security funds and business funds (they also took their business account). The dilema is this: While Michigan is not a community property state, because it was a joint account and their funds are mixed, the garnisher claims that the social security is only untouchable until it is placed in the joint account - then it's fair game. The judge has asked for case law because it's an unusual case. Any thoughts? They only have a few days to support why the social security is still hands off.
I am pretty sure that if it can be proved that the SS payments belong to the husband, they can be excluded from the garnishment, not sure of the case law on this however...
I have heard this is legal and a danger of direct deposit. SS is supposed to untouchable but they can get around it.
Thank you both. My thinking is that the ONLY way to prove the funds in the account were his SS disability was if the funds were garnished the same day his funds were deposited - which is not what happened. The garnishment took place several days after. They can't afford an attorney until Jan so I'm trying to help them "dance" until then.
Follow-up to this in case this subject is ever searched on, here is what I found: http://www.aaml.org/socialsecurity.htm The Social Security Act contains an anti-assignment provision which states that "...none of the moneys paid or payable...under (the Act) shall be subject to execution, levy, attachment, garnishment, or other legal process." 42 U.S.C. §407(a), (applicable to SSI by 42 U.S.C. § 1383(d)(1). The United States Supreme Court has given the anti-assignment clause a broad reach, extending protection to all claimants, against any legal process. Philpott v. Essex County Welfare Board, 409 US 413, 93 S.Ct 590 (1973). When Social Security funds are commingled with non-exempt funds in a bank account, the majority rule is that the anti-assignment clause still protects the benefits, as long as the Social Security funds are reasonably subject to tracing. See NCNB Fin. Servs. v. Shumate, 829 F.Supp 178 (WD Va. 1993). My client gets to keep his social security! YEA!
good work to follow this up and find out the case law on the subject! I thought this was the case and now you've found where to prove that!
Let me know what happens on this. My parents are having similar problems, except in my dads case it is the IRS.
Re: Re: Garnishments & Social Security The IRS is a whole different ballgame. The rules change when dealing with them. Here is a quote from one of their publications: The federal tax lien attaches to all property and rights to property belonging to a taxpayer. (IRC 5 6321). The lien continues until the assessed liability is satisfied or becomes unenforceable by lapse of time. (IRC § 6322). The lien attaches to any property or rights to property acquired while the lien is in effect. (Treasury Regs. 5 301.6321-l). Upon a taxpayer's neglect or refusal to pay a tax liability, IRC § 6331 provides the Service with the authority to levy upon the property and rights to property belonging to the taxpayer or property on which there is a tax lien. IRC 5 6334 exempts certain property from levy. These exemptions do not include social security benefits.
Indeed! pd11604 is correct. It can be garnished by the IRS, for child support and I believe alimony. The ONLY thing I can think of in your parents situation is IF: 1. The social security being garnished belongs to what the IRS terms an innocent spouse (I think that's the term). IOW, if let's say your parents filed joint, your father gets social security (or even if both get it) and he didn't know what your mother did on the forms, then he might be claimed an innocent spouse and his social security "could" be free from the IRS. I would suggest you read up on the IRS site about innocent spouses and see if the description fits one of your parents - or the parent receiving social security.
I have heard two terms not sure if they apply here or not , 1) a claim of exemption can be filed in some cases to prevent a wage garnishment.( ck your states laws) 2) injured spouse claim aplies with IRS . in cases where a joint acct was levied when only one spouse or party owed the money. another thought check findlaw. com for your states statutes they may apply to bank accounts. maybe under the civil code of procedures of civil code etc. in addition to the federal laws you found. hope this helps.
That's it! That's what I was looking for! I was thinking if the parent that had the ss wages was the "injured spouse" and could prove it, then maybe the garnishment wouldn't affect the parent's ss income. Thanks for giving the right term!
This actually happened to my parents recently, they froze their account....to get the funds back we sent proof of deposits into the account (dd info from the online access that showed were the money originated), which was only SS and Workers Comp (direct deposit on both) the funds were released back within 24 hours.....they can't be touched.
Re: Re: Garnishments & Social Security glad this helps you good luck let us know what happens. BTW thx for your help with some of your postings too. were all in this together. knowledge is power !
