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Posted on May 7, 2022

Garnishing Social Security In An Illinois Divorce

When people get older, they ponder their life decisions. Often, they say, “Why did I let him get away with NOT paying child support or maintenance all those years.”

The man who failed to pay (it is almost always a man) is now in his dotage and is collecting checks from the U. S. government via Social Security. He probably knows that his Social Security checks are untouchable by creditors thanks to Federal law.

Social Security Is Not Garnishable…Usually

“The right of any person to any future payment under this [Social Security] subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law.” 42 U.S.C. § 407(a) (2000).

Illinois even acknowledges the default rule that “Social Security benefits may not be divided directly or used as a basis for an offset during state dissolution proceedings…it is improper for a circuit court to consider Social Security benefits in equalizing a property distribution upon dissolution…By operation of section 402, a divorced spouse may not look to state marital property law for distribution of Social Security benefits.” In re Marriage of Crook, 813 NE 2d 198 – Ill: Supreme Court 2004

The sum an elderly non-payor owes is probably astronomical thanks to the power of compounding interest. The child support or maintenance (formerly known as alimony) owed grows at a 9% interest rate. “[J]udgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied” 735 ILCS 5/2-1303

Money owed at a 9% interest rate doubles ever 8 years. It quadruples every 16 years. It multiplies by 8 times every 24 years!

Social Security Can Be Garnished For Child Support And Maintenance

Money judgments for child support, maintenance and anything that qualifies as “support” like college expenses can be recouped via a garnishment of Social Security benefits despite the previous laws I mentioned…because there are exceptions to those laws.

The Social Security Act provides that child support and maintenance judgments allow for a Social Security garnishments.

“[M]oneys…due from, or payable by, the United States…to any individual…shall be subject, in like manner…to withholding in accordance with State law…by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.” 42 USC Sec 659(a)

“[S]ection 659 of the [Social Security] Act authorizes proceedings against the federal government to collect [the obligor’s] social security disability benefits in satisfaction of [a support] obligation” In re Marriage of Truhlar, 935 NE 2d 1199 – Ill: Appellate Court, 2nd Dist. 2010

Only so much of the Social Security benefit can be withheld to satisfy a child support or maintenance (formerly known as alimony) order.

“Withholding of income under this Act shall not be in excess of the maximum amounts permitted under the federal Consumer Credit Protection Act [15 U.S.C. § 1601 et seq. (2000)].” 750 ILCS 28/35(c)

“The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed —

(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and

(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week.” 15 U.S.C. § 1673(b)(2)(A), (B)

If the Social Security recipient who owes child support or maintenance has a new wife or child, the most you can garnish is 50% of their disposable earnings. If they’re unmarried and have no children they are supporting, 60% of their disposable earnings may be garnished.

“Illinois has adopted the limits as expressed in federal law, the most that can be withheld from a weekly wage for family support purposes is 50% or 60% of the weekly earnings, depending on the circumstances” Crank v. Crank, 871 NE 2d 962 – Ill: Appellate Court, 3rd Dist. 2007

Unfortunately for the party owed money by their ex-spouse, Social Security benefits can only be garnished for child support, maintenance and some other kinds of ongoing support.

You cannot garnish Social Security benefits to satisfy a property settlement that has not been paid in full.

Not included in any permissible garnishment is “any payment or transfer of property or its value by an individual to the spouse or a former spouse of the individual in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” 42 U.S.C. § 659(i)(3)(B)(ii)

How To Garnish Social Security Benefits In Illinois

First, get a money judgment against your ex-spouse for all the child support or maintenance that they owe you, including calculated interest.

Then, file a motion citing all the law that I just listed above. Cut and paste the law from this article. Cutting and pasting is not advice…but if you need advice, call me.

Enter an order that “The United States Social Security Administration shall garnish no less than (50 or 60%) of [spouse’s name]’s monthly social security wages and transfer the garnished amount to [your name] as partial satisfaction of the judgment against [spouse’s name].”

Then mail that order to your local Social Security Administration field office for processing. You should get your share of his check shortly.

Old people usually own houses. Use the same Judgment to put a lien on their house. If the person who owes you money is on Social Security, they are not going to live forever and the house won’t sell with your lien against it.

She who laughs last…laughs best. Contact my Chicago, Illinois family law firm to discuss how you can have the last laugh by garnishing 50-60% of your ex’s social security check.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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