This is the third and final installment of my interview with Atlanta based domestic relations lawyer Monica Hanrahan Freitag of the law firm Kessler, Schwarz & Solomiany. In this audio segment, Monica and I discuss the special issues that arise when the custodial and non-custodial parents live in different states and Social Security is involved. A question I get frequently - how can a custodial parent find out if a non-custodial parent has applied for benefits and if auxiliary benefits are forthcoming.
Filed under SSDI and child support, Social Security Disability Benefits and Child Support by on Aug 15th, 2010. Comment. 
In this second installment of my interview with Monica Hanrahan Freitag, we discuss auxiliary benefits and how family law judges deal with lump sum disability payments.
This is part 1 of my interview with Monica Hanrahan Freitag, a domestic relations lawyer at the law firm of Kessler, Schwarz & Solomiany. In part 1, Monica and I discuss how family law judges approach child support calculations and the special problems that arise when one or both parents are disabled. How are child support payments adjusted? How is the long delay in Social Security adjudication addressed?
Here are some of the links discussed in this interview:
Kessler, Schwarz Solomiany law firm site
Fulton County, Georgia Family Court forms
Pro se Family Law forms - courtesy of attorney Steve Worrall
Filed under Offset issues, Social Security Disability Benefits and Child Support by on Jul 28th, 2010. 1 Comment.
I recently received this question from a visitor to this site:
I filed for divorce about a year ago and my husband moved out last September. He is on SSDI. My children receive SSDI checks [auxiliary beneficiaries] monthly. Is this considered “child support”?
My children are 19 (she no longer receives checks) 14 and 10. The total they receive is $686/mo. We have not even been to court yet and I am paying for 1st and 2nd mortgages, health insurance, car payment, insurance for myself and my 19 year old, all utilities and all our our marital debt (@$30,000.00) all on my own. He does not give me any money.
Here are my thoughts: in general, the auxiliary benefits associated with your husband’s SSDI payments will be considered child support. However, you should with a lawyer in your state to confirm this.
You obviously feel that he is not paying you nearly enough, and it does appear that the financial burden of raising your children has fallen upon you. My question – have you not spoken to a lawyer? Most states provide for some form of temporary child support while you are waiting for a trial date. You will only become entitled to child support when it is ordered by a judge. As long as you sit on the sidelines and do nothing, not child support will become due. Right now, your husband is not paying any child support because legally he is not required to do so. You need to force the issue.
In most states, the amount of child support payable is calculated based on the non-custodial parent’s income and the needs of the children. Assuming your husband is truly disabled from all work, this is not a case where a judge can “encourage” the non-custodial father to get a second income to support his children. At this point, he is not paying any of his income (his SSDI) towards child support. However, it seems to me that both you and your soon to be ex-husband are going to be living with very tight finances and that pain needs to be shared and not borne by you alone.
Over the past few months, I have regularly received questions from custodial parents (usually moms) who have heard through the grapevine that their ex-husbands have been awarded SSDI or SSI, and they want to know:
- can they go after the back benefit “lump sum” to recover past due child support; and
- are their minor children entitled to auxiliary benefits based on the father’s Social Security benefits
Here is my response:
First, you have to realize that there are two areas of law involved here – Social Security rules, which are federal, and state laws arising from state court child support orders. Further state child support recovery units also may be involved, which creates yet another level of bureaucracy.
As discussed elsewhere on this blog, SSDI benefits may be attached to pay past due child support, but SSI benefits may not be attached. However, a state court divorce or child support order is not “nullified” just because a non-custodial parent is receiving SSI. Social Security may not be willing to withhold or seize payments on your behalf, but a parent who does not pay may have to answer to an angry state court judge and possibly face incarceration if he or she did not make some of his or her lump sum available to care for his or her child.
You should also be aware that Social Security privacy rules do not allow SSA personnel to reveal any information about your ex-spouse’s case. Social Security also has no responsibility to contact a benefit recipient’s ex-spouse or children to tell them about available benefits.
Here is what I would suggest to a non-custodial parent who thinks that her ex-spouse has been awarded benefits:
1. write a letter to Social Security and identify yourself and your children as possible claimants for unpaid child support or alimony and ask that your letter serve as a claim against your ex-spouse’s account and/or for a claim of auxiliary benefits. If you have your ex-spouse’s Social Security number and date of birth that would be very helpful. You can find the address for the Social Security office where your ex-spouse lives by using the office locater tool on the SSA.gov site. I generally send letters to Social Security using return receipt requested.Read more on How Do You Find Out if Your Ex-Husband is Receiving Disability Benefits…
Filed under Social Security Disability Benefits and Child Support by on Apr 17th, 2010. 2 Comments.
I am often asked if Social Security Disability Benefits can be garnished to pay child support payments. The answer of this question depends on what type of Social Security Disability benefits you are receiving.
If you are receiving Supplemental Security Income (SSI), the federal government does not allow these benefits to be garnished. SSI is given to lower-income individuals – those individuals such as the aged, blind, and disabled who meet certain low income and resource levels and do not qualify for Social Security Disability (SSDI). The federal government funds SSI through general tax revenues so that the qualifying individuals can pay for expenses such as clothing, housing, and food. Because the federal government treats SSI as a public welfare benefit and not as income for the purposes of child support payments, they do not allow Supplemental Security Income benefits to be garnished.
On the other hand, Social Security Disability Insurance (SSDI) can be garnished to pay child support payments. SSDI benefits are funded from the money you as a worker paid into the Social Security system (through employment taxes) when you were still working. The amount of SSDI benefits you get is based on how much you earned/how much you contributed into the Social Security system (via taxes). When employees become disabled and are unable to work, these SSDI payments act as a replacement of income. According to the federal government, because SSDI is considered a substitute for lost wages, it can be garnished for child support payments.
A benefit of SSDI is that children of the disabled workers that receive SSDI payments may qualify to receive SSDI benefits until a certain age as well, and these payments can be subtracted from the child support owed.
There is an obvious connection between job loss and child support payments. The rise of unemployment to over 10 percent has made it nearly impossible for many parents to make their child support payments, which is reflected in a surge in petitions for reduced payments.
4 out of 10 people who have lost their job remain unemployed for six months or more. This increase in long-term unemployment makes the situation worse. Also, men have been disproportionately laid off due to the recession’s impact on traditionally male-dominated industries like manufacturing and construction. Because nearly 83 percent of custodial parents are women, men are left to pay most child support obligations.
In Highland County, Ohio, requests for support modifications nearly doubled 
last year as the county’s unemployment rate rose to over 16 percent when a major area employer left. According to Christine Blevins, a supervisor for the county child support enforcement agency, the nature of the requested changes also shifted. While in past years most requests came from custodial parents seeking increases, in 2009 almost all the requests came from noncustodial parents who lost their jobs and ask for payment reductions.
As people whose payments are now based on unemployment will soon lose those benefits, Blevins expects to see another wave of downward adjustments. Payments are also no longer calculated assuming that a parent could at least find a full time, minimum-wage job, as that is no longer realistic in this economy. The situation puts everyone involved in a difficult position, as the non-custodial parents struggle to pay child support and the children in need have a harder time getting the support they need.
I recommend that if your financial situation changes and you can’t meet your support payments, call your attorney or the state child support agency to start the review process. It can take months for a reduction to be granted, especially in communities that have cut back on staffing child support offices. If you cut payments without official approval, it may lead to legal problems and possibly even an arrest.
Filed under Child Support in the News by on Jan 29th, 2010. 3 Comments.
A proposed bill in Indiana could force parents who are behind on their child support payments to hand over their gambling winnings to their children.
The legislation, which is being considered by the Judiciary Committee of the 
state Senate, would withhold casino jackpot winnings from parents who are behind on their child support payments. For example, winners of slot-machine winnings of $1,200 or more would be checked for delinquent child support when they try and cash their prize.
Over 165,000 non-custodial parents each owe more than $2,000 in child support, which equals over $2 billion in child support delinquencies, according to the state Department of Child Services, which is pushing the legislation. In a state where only 58 percent of child support payments are collected, the proposed bill is gaining support.
Stuart Showalter, of Indiana Shared Parenting, does not believe that parents who are having difficulty paying child support should be gambling with their money. Indiana Department of Child Services Spokesperson Ann Housworth believes that the custodial parents that are owed money, and their children, could benefit from any money collected with the proposed legislation.
Obviously, there are two sides to the issue. Indiana casinos are not in favor of the bill and worry that the legislation will cause too much of a delay on casino floors while names of big winners are checked for delinquent child support. According to Mike Smith, President of the Casino Association of Indiana, the delay will customers since casinos are fast-paced environments and winners want to be paid quickly. Smith also argues that because 70% of business comes from out of state, he’s not sure how successful the collections would be.
Regarding an argument that the casinos should not have to do the government’s dirty work to collect child support, an unsympathetic Indiana Sen. Scott Schneider (Indianapolis) says the state created the gambling industry, and casinos need to play by its rules.
Filed under Blog, Child Support in the News by on Jan 18th, 2010. Comment.
In my law practice I represent both Social Security disability claimants as well as Chapter 7 and Chapter 13 bankruptcy clients. Not surprisingly, many of my Social Security disability clients end up as bankruptcy clients. I also represent quite a few single moms in bankruptcy.
I frequently get questions from custodial parents (usually moms) who want to know if there is any way to find out if the non-custodial parent has applied for or is receiving Social Security disability. The answer to this question is “not directly from Social Security” as privacy laws prevent Social Security employees from revealing this information.
Although SSA will not reveal any information about disability benefits to a third party, that information is a matter of public record if the Social Security recipient files for bankruptcy. Bankruptcy petitions are publicly accessible documents and can be reviewed by anyone.
Further, under the 2005 changes to the bankruptcy laws, any Chapter 7 debtor who is currently paying child support must reveal that information to his Chapter 7 trustee. The trustee then sends out a form letter to both the custodial parent and any child support enforcement agency.
Child support debt is not dischargeable in bankruptcy. However, a bankruptcy petition may serve as a source of information about assets, other sources of income. You can access bankruptcy petitions and associated paperwork in person by visiting the office of the Clerk of Bankruptcy Court where the debtor filed, or you can access this information electronically using a system called PACER.
Filed under Social Security Disability and Bankruptcy by on Dec 7th, 2009. Comment.
Most of the comments and questions I get on this blog come from parents who are trying to get child support or who have child support obligations but no source of income to pay. This email comes from a teenager who was approved for disability and who contends that her parents are misusing funds that are supposed to be used for her care and welfare:
hi i am 17 i have been on disability since i was twelve i have a few questions. 1 my parents give me no money from it, nor do they allow me to do extra curricular activites with the money, archery, tae kon do art sculpting etc, is this legal of them? 2 they frequently use the money for the truck payement on a truck that is not neccasary nor running, they dont keep track of the money nor do they keep recepts. is that legal? 3 they wont let me work because it cancels the disability yet they give me no money from it, am i entitled to some money also can i turn them in or set up a confrence or court date to stop the ssi income since i am capable of working desire work and get no benefit from the check??? please i ask for your time soon cause i have to pay for damages and court costtts and cannot accuire work nor income fromm ssi to do so and i will be in comptemt thank you very much
Here are my thoughts: Generally when a benefits are awarded to a minor child, those payments are sent to the that child’s parents or legal guardians who serve as the “representative payee” for that minor child. The funds should be used for the health, education and welfare of the child.
Social Security rules provide that the representative payee may only use the child’s SSI benefits for the following purposes:
- medical treatment
- education or job skills training
The following expenses may also be paid from the child’s SSI account if they benefit the child and are related to the child’s impairment:
- personal needs or assistance (i.e. in-home nursing care)
- special equipment
- housing modification
- therapy or rehabilitation
- other items that are approved in advance by the local Social Security office
Filed under Misuse of funds by representative payee, Reader Stories, Representative Payee issues by on Nov 25th, 2009. Comment.
Jonathan Ginsberg