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NPRM: Processing Garnishment Orders for Child Support and/or Alimony

AT-86-12

Published: May 16, 1986
Information About:
State/Local Child Support Agencies
Topics:
Case Management, Enforcement
Types:
Policy, Action Transmittals (AT), Regulations
Tags:
Collection & Enforcement Systems

ACTION TRANSMITTAL

OCSE-AT-86-12

May 16, 1986

TO:STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS.

SUBJECT:Processing Garnishment Orders for Child Support and/or Alimony

ATTACHMENT:Attached are proposed regulations issued by the Office of Personnel Management which revise regulations concerning the processing of garnishment orders for child support and/or alimony. These proposed regulations provide that attorney fees will only be subject to garnishment if expressly awarded as alimony or child support so as to conform with an interpretation of the statutory garnishment provision recently announced by the Department of Justice.

REGULATION

REFERENCE: 5 CFR Part 581

COMMENT

PERIOD: Consideration will be given to written comments received by W. Scott Burke, General Counsel, Office of Personnel Management, Room 5H30, 1900 E Street, N.W., Washington, D.C. 20415, on or before June 27, 1986.

RELATED

REFERENCE: OCSE-AT-85-9, dated June 6, 1985.

INQUIRIES TO: OCSE Regional Representatives

Deputy Director

Office of Child Support Enforcement

OFFICE OF PERSONNELMANAGEMENT

45 CFR Part 581

Processing Garnishment Orders for Child Support and/or Alimony

AGENCY: Office of Personnel Management.

ACTION: Proposed Rule

SUMMARY: The Office of Personnel Management (0PM) is proposing a revision to its regulations concerning the processing of garnishment orders for child support and/or alimony. The proposed regulations would amend the attorney fee provisions to conform with an interpretation of the statutory garnishment provisions recently announced by the Department of Justice. Under the recent interpretation, remuneration will only be subject to garnishment for attorney fees when the attorney fees are expressly awarded as alimony or as child support.

DATE: Comments should be received by June 27, 1986.

ADDRESS: Send or deliver comments and/or designated agent information to W. Scott Burke, General Counsel, Office of Personnel Management, Room 5H30, 1900 E Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Murray M. Meeker, (202) 632-4518.

SUPPLEMENTARY INFORMATION: The proposed revisions respond to certain suggestions presented by public interest groups and make certain technical and typographical corrections. Because of economic constraints, this proposed rule does not include changes to Appendix A to Part 581, the list of agents designated to accept legal process. Changes to Appendix A will appear when the proposed rule is published as a final rule. Governmental entities are urged to review the current Appendix A in title 5 of the Code of Federal Regulations (October 1, 1985 edition) and advise OPM at the following address if any changes should be made: Office of the General Counsel, Office of Personnel Management, 1900 E St., NW, Rm. 5H30, Washington, DC 20415. 0PM bas already received changes from the following agencies: Merit Systems Protection Board; Farm Credit Administration; Department of Transportation, Federal Aviation Administration and Maritime Administration; Department of Defense, Defense Investigative Service; Department of the Interior, Bureau of Reclamation, Office of Surface Mining, and Heritage Conservation and Recreation Service; National Endowment for the Arts; Veterans Administration, Nevada: Henderson Outpatient Clinic and Las Vegas Outpatient Clinic; and National Archives and Records Administration.

E.O. 12291, Federal Regulation

I have determined that this is not a major rule as defined under section 1(b) of E.O. 12291, Federal Regulation.

Regulatory Flexibility Act

I certify that these regulations will not have significant economic impact on a substantial number of small entities because their effects are limited primarily to Federal employees.

List of Subjects in 5 CFR Part 581

Alimony, Child welfare, Government employees, Wages.

U.S. Office of Personnel Management.

Constance Homer,

Director

PART 581-PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR, ALIMONY

Accordingly, 0PM proposes to amend 5 CFR Part 581 as follows:

1. The authority citation for Part 581 continues to read as follows:

Authority: 42 U.S.C. 659, 661-662; 15 U.S.C. 1673; E.O. 12105

2. In õ581.102, paragraphs (d), (e) and (g) are revised to read as follows:

õ581.102 Definitions

* * * * *

(d) "Child support" means periodic payments of funds for the support and maintenance of a child or children, and, subject to and in accordance with State or local law, includes, but is not limited to payments to provide for health care, education, recreation, clothing, or to meet other specific needs of such a child or children; the term also includes attorney's fees, interest, and court costs, when and to the extent that the same are expressly made recoverable as such under a decree, order, or judgment issued in accordance with applicable State or local law by a court of competent jurisdiction.

(e) "Alimony" means periodic payments of funds for the support and maintenance of a spouse or former spouse and, subject to and in accordance with State or local law, includes, but is not limited to, separate maintenance, alimony pendente lite, maintenance, and spousal support. Alimony also includes attorney's fees, interest, and court costs, if they are expressly made recoverable as such under a decree, order, or judgment issued in accordance with applicable State or local law by a court of competent jurisdiction. This term does not include anypayment or transfer of property or its value by an individual to his or her spouse or former spouse in compliance with any community property settlement equitable distribution of property, or other division of property between spouses or former spouses. (See instead 5 U.S.C. 6345(j) and 5 CFR Part 831, Subpart Q.)

* * * * *

(g) "Legal obligation" means an obligation to pay alimony and/or child support that is enforceable under appropriate State or local law. A legal obligation may include current as well as past due alimony and/or child support debts depending on the law in the jurisdiction from which the legal process was issued.

3. In õ 581.103, the introductory text of paragraph (a) is republished and paragraph (a)(23)(iv) is revised to read as follows:

õ581.103 Moneys which are subject to garnishment

(a) For the personal service of a civilian employee obligor:

* * * * *

(23) Moneys due on account of the services of a deceased employee obligor including:

* * * * *

(iv) Retroactive pay as provided for in section 5344(b)(2) of title 5 of the United States Code; and

* * * * *

4. In õ581.104, paragraphs (6) and (f) are revised to read as follows:

õ581.104 Moneys which are not subject to garnishment

* * * * *

(c) Refunds and other payments made in connection with overpayments erroneous payments of income tax and other taxes levied under title 26 of the United States Code;

* * * * *

(f) Veterans's educational assistance payments under sections 1651 et seq., o163 title 38 of the United States Code;

* * * * *

5. In õ 581.105, the introductory text of the section paragraphs (a), (b)(3) and (b)(4) are revised, paragraph (b)(5) is added, and the introductory text of paragraph (b) is republished to read as follows:

õ581.105 Exclusions

In determining the amount of any "moneys due from, or payable by, the United States" to any individual, there shall be excluded amounts which:

(a) Are owed by the individual to the United States, except where the obligor's debt is for child support and the amount owed the United States results from an income tax lien or levy under section 6331 of title 26 of the United States Code;

(b) Are required by law to be deducted from the remuneration or other payment involved, including, but not limited to:

* * * * *

(3) Amounts mandatorily withheld for the U.S. Soldiers' and Airmen's Home;

(4) Fines and forfeitures ordered by court-martial or by a commanding officer; and

(5) Amounts deducted for Medicare;

* * * * *

6. In õ 581.202, paragraph (c) is revised to read as follows:

õ581.202 Service of process.

* * * * *

(c) Where it does not appear from the face of the process that it has been brought to enforce the legal obligation(s) defined in

õ 581.1O2(d) and/or (e), the process must be accompanied by a certified copy of the court order or other document establishing such legal obligation(s).

* * * * *

7. In õ 581.305, the introductory text of paragraph (a) is republished, paragraph (a)(6) is revised and paragraph (g) is added to read as follows:

õ581.305 Honoring legal process.

(a) The governmental entity shall comply with legal process, except where the process cannot be complied with because:

* * * * *

(8) Where notice is received that the obligor has appealed either the legal process or the underlying alimony and/or child support order, payment of moneys subject to the legal process shall be suspended; i.e., moneys shall continue to be withheld, but these amounts shall be retained by the government entity until the entity is ordered by the court, or other authority, to resume payments or otherwise disburse the suspended amounts. However, no suspension action shall be taken where the applicable law of the jurisdiction wherein the appeal is filed requires compliance with the legal process while an appeal is pending. Where the legal process has been issued by a court ia the District of Columbia, a motion to quash shall be deemed equivalent to an appeal.

* * * * *

(g) A failure by the party bringing the garnishment action to comply with the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA) or the Revised Uniform Reciprocal Enforcement of Support Act, by itself, shall not be a valid basis for a governmental entity to refuse to comply with legal process.

[FR Doc. 86-9421 Filed 4-25-86; 8:45 am]

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