LAW REVIEW 1138
Garnishment of Military Pay
By Captain Samuel F. Wright, JAGC, USN (Ret.)
4.3-Right to Continuance and Protection against Default Judgment
Q: A member of the armed forces (Joe Smith) owes me money. I sued him in state court, and he did not answer. I obtained a default judgment. I have demanded that he pay me, and he has avoided me. I want to try to collect on the judgment by garnishing his military pay. A retired Navy judge advocate told me that military pay can only be garnished to enforce child support and alimony orders. Is that correct?
A: That statement was correct at one time, but more than 15 years ago Congress enacted section 5520a of title 5 of the United States Code (5 U.S.C. 5520a). This section makes federal agencies (Executive Branch, Legislative Branch, or Judicial Branch) subject to garnishment orders, as private employers are subject. This applies to federal pay, military or civilian. Prior to the enactment of section 5520a, federal pay could be garnished only for child support or alimony obligations, under 42 U.S.C. 659.
To garnish this service member's pay, you must comply with your state law about garnishment, and then you serve the garnishment order on the Defense Finance & Accounting Service (DFAS). You must also demonstrate that the civil proceeding was conducted in accordance with the Servicemembers Civil Relief Act (SCRA) and that due consideration was given to the member's absence because of the exigencies of military service. 5 U.S.C. 5520a(k). The SCRA is codified in title 50 Appendix, sections 501 through 597b (50 U.S.C. App. 501-597b).
Before you obtained the default judgment, you were required (by the SCRA) to file with the court an affidavit stating whether or not Smith was in military service at the time. 50 U.S.C. App. 521(b)(1)(A). If you stated under oath that Smith was not on active duty, when in fact he was, you are guilty of a federal misdemeanor, punishable by up to a year in jail and a substantial fine. 50 U.S.C. App. 521(c).
If Smith was on active duty at the time, an attorney should have been appointed to represent his interests. 50 U.S.C. App. 521(b)(2). Smith was also entitled to a stay of the proceedings, if his military service precluded him from filing a timely answer to your lawsuit or appearing for the trial. 50 U.S.C. App. 522.
The purpose of these SCRA procedures is to ensure that the service member is not prejudiced by his or her service to our country. If Smith was serving in a place like Afghanistan at the time you sued him, he may have been unaware that you had filed the suit. If the SCRA provisions were not complied with during your lawsuit, you cannot enforce the judgment through garnishment through DFAS.
Q: Joe Smith has been on active duty for many years, and he may be approaching retirement. If he retires before the judgment is satisfied, can I enforce the judgment through garnishing his military retired pay?
A: No. Federal retired pay (military or civilian) can be garnished only for child support and alimony obligations, under 42 U.S.C. 659.
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