Breeding & Henry, LLC

Difficulties finalizing agreements for child support and alimony

Negotiating and finalizing agreements providing for child support and alimony is often difficult and highly contested. Disagreements over income, need, and other issues become caught up in the already emotional and difficult process that is separation. Making sure this process goes as smoothly as possible is essential to work out agreements that will suit both parties. However, even after an agreement is reached, enforcing payment for support obligations often becomes an issue.

Garnishment is a process by which a party entitled to receive support can ensure that the monies owed to them will actually be paid out. A court order is typically entered which allows seizure of the wages or other income of the party failing to provide support. This can involve an employer, by order of a court, withholding a specified amount of pay and sending it directly to the party entitled to support or alimony. Garnishment can even extend to social security payments received from the United States government. Federal law typically disallows the seizure of social security, but provides an exception when such payments are used for child support or alimony. 42 U.S.C. § 659(a). Even Tennessee law, at first glance, would seem to suggest that "social security benefits" are exempt from garnishment. Tenn. Code Ann. § 26-2-111. However, courts in Tennessee have recognized that public policy favors ensuring that support is maintained.

The case that is most heavily cited to illustrate this point is likely State ex rel. Baker v. Tolliver. State ex rel. Baker v. Tolliver, No. 03A01-9701-JV-00041, 1997 WL 367200, at *1 (Tenn. Ct. App. June 30, 1997). In that case, the Tennessee Court of Appeals held that Tennessee law did not exempt social security payments from garnishment for child support. Id. at *2. The court reiterated that the General Assembly has passed a number of amendments that give "priority to the payment of alimony and child support obligations." Id. at *2. This view is held by a majority of states, and essentially confirms that social security may be garnished by court order when it will be used to provide for child support or alimony.

Garnishment may be an effective tool by which those entitled to receive support through a court order can ensure that their payments will continue when the party paying support does not comply in some way. In particular, knowing that even social security payments can be garnished can provide some relief for elderly individuals who are entitled to support, but that support has no other source than the payor's social security income. Ultimately, garnishment of any kind involving alimony or child support not only ensures that payments will continue, but furthers broad public policy goals that favor providing for those that need support.

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