What is your recourse if the non-custodial parent will not cooperate in filing for auxiliary benefits, and perhaps you do not know where he lives, his Social Security number or any other information. Perhaps you have heard “through the grapevine” that the father (or mother) of your children is receiving disability benefits, although you are not seeing anything in the form of child support. What can you do?
You do have a few options:
- Contact Social Security and file a claim for auxiliary benefits. Obviously the more information you have about the non-custodial parent the better (i.e. his full name, date of birth, Social Security number, last known address, etc.). Under the law, Social Security is required to make “all reasonable efforts” on behalf of your child(ren).
Social Security’s own Program Operations Manual System (POMS) provides that SSA must protect the interest of a child by taking an application and developing necessary evidence – see POMS RS 00203.050. Further, according to POMS RS 00203.065, you, as the custodial parent, can file Form SSA-4-BK to start the process.
- Contact the court that issued the child support order. Generally courts that issue child support orders retain jurisdiction over the parties. You will probably need a lawyer to do this, but you can ask for a hearing to compel the non-custodial parent to cooperate by filing for auxiliary benefits.
- Try to contact the non-custodial parent directly, or indirectly through relatives. It is possible that your ex-spouse/non-custodial parent does not realize that filing for auxiliary benefits will not decrease his benefit check at all. Payments to auxiliaries are in addition to payments received by the disabled person. He may be willing to cooperate once he understands that doing so will not cost him any money.
Filed under Auxiliary benefits by on Nov 6th, 2011. 1 Comment. 
This past Monday, I ran across an interesting article on msnbc.com entitled “Unable to Pay Child Support, Poor Parents Land Behind Bars.” The gist of this article is that non-custodial parents (usually fathers) who have been out of work are brought before judges on contempt charges without any right to court appointed lawyers, and are ending up in jail for non-payment.
In one case, a 39 year Iraqi war vet living in Georgia, with a 10+ year history of regular payments fell behind when he lost his job 2 years ago. Although now working, the judge would not agree to any payment arrangement and put the delinquent father in jail for 3 months.
Several of these recently incarcerated fathers have filed a class action lawsuit demanding that the state of Georgia provide legal counsel in cases where jail is a possible outcome.
Recently the United States Supreme Court ruled that poor parents are not entitled to court appointed lawyers when facing jail for non-payment of child support so long as state law contains “substantial procedural safeguards” to ensure that those without means to pay are not locked up.
The plaintiffs in the Georgia class action suit are contending that Georgia law does not provide those procedural safeguards.
What do you think? I regularly hear from custodial parents who write to say that the non-custodial parent refuses to work or works for cash. At the same time, it seems counterproductive to put a parent like the Iraqi war vet in jail, thereby causing him to lose his new job, putting him even further behind.
Georgia and other states, of course, have no money, and they will no doubt argue to the courts that they should not be burdened with the cost of court appointed lawyers for child support defendants.
What is a good solution to this type of situation?
Filed under Child Support in the News by on Sep 13th, 2011. 8 Comments.
I regularly get questions from women (and some men) who think that their ex-spouse may be collecting disability benefits, but who will not cooperate when it comes to requesting auxiliary benefits for the non-custodial parent’s minor child or children.
Information about Social Security claims is confidential and SSA will not release it. How then do you find out if your ex-spouse is collecting benefits, his current address or even his Social Security number?
One way to gather this information is to use the discovery rules of the jurisdiction that issued the child support order. Litigants in state court (divorce) litigation can use the rules of discovery that apply in every state. Under these rules, you can ask the other party (you “ex”) questions (called interrogatories) and you can demand that he produce documents (requests for production of documents).
State court judges enforce discovery requests using the power of contempt – in other words, your ex can be incarcerated if he does not cooperate.
While using discovery to gather information about your ex-spouse is effective, it can also be expensive and may require the assistance of a private lawyer. However, many family law courts have web sites with sample interrogatories and requests for production of documents so, in theory at least, you can engage in discovery on your own.
Another way to gather information about your ex-spouse is to use private investigation tools readily available on the Internet. I did a quick Google search and ran across people finder sites like Publicpeoplefinder.com or iinfosearch.com, which charge $100 or less. I have no personal experience with these particular companies and, as always when buying something online, buyer beware.
Filed under Social Security Disability Benefits and Child Support by on Aug 25th, 2011. 1 Comment.
Were you aware that as a divorced wife or husband, you may be able to qualify for Social Security disability benefits based on your deceased spouse or ex-spouse’s earnings record?
Under Social Security’s rules, you can claim disability benefits based on your deceased husband/wife or ex-husband/wife earnings record if:
- you are at least age 50
- you were married to your ex-spouse for at least 10 years
- your ex-spouse was fully insured for SSDI benefits at the time he/she died
You cannot at this point claim disability benefits on the earnings record of a living ex-spouse.
Several years ago, I was represented a disabled ex-wife of a man who got “remarried” after separating (but not legally divorcing) my client. When we filed for disabled widow’s benefits, Social Security advised us that another “widow” had already been paid.
After proving that my client was disabled medically, I was able to document that my client was also the legal surviving widow and that the other “widow” was in fact not a legal wife. Social Security ended up paying both my client and “the other woman.”
Disabled widow claims can be tricky and usually it makes sense to hire a lawyer to assist you. If you are not fully insured for SSDI benefits yourself or if your SSDI benefit amount is less than that of your deceased spouse/ex-spouse, you will want to make sure that your benefit amounts are properly calculated.
Filed under Disabled Widow's Benefits by on Aug 16th, 2011. Comment.
My colleague, Colorado Social Security disability lawyer Tomasz Stasiuk recently published an article on his blog entitled “Do Social Security Auxiliary Benefits Reduce Child Support?“ The post on Tomasz’ blog was actually written by attorney Yolanda Fennick, who practices family law in Colorado Springs.
Yolanda’s article sets out what Colorado courts are supposed to do – if a non-custodial parent qualifies for SSDI and his children begin receiving monthly auxiliary benefits, these auxiliary benefits will usually reduce the non-custodial parent’s child support obligations dollar for dollar.
I suspect that Colorado’s approach is similar to what you would find in other states, but when it comes to child support payments, do not assume anything. Further, until the obligations of the parties are put into writing by a judge and issued as an order, no other agreement or assumption matters.
The rules may be different in SSI cases, if the custodial parent is the one receiving SSDI, or if the child himself is receiving SSI. A good family lawyer can explain the law to you. As difficult as it may be to come up with the money to hire a lawyer, I think that both payers and recipients of child support would be very wise to have counsel when appearing in court.Read more on Auxiliary Benefit Offset Rules Vary From State to State…
Child support obligations – both on-going and arrears – cannot be discharged in bankruptcy. However, even non-dischargeable debts like recent tax obligations, secured installments notes and (sometimes) student loans are regularly included in Chapter 13 repayment plans.
How are child support arrearage balances treated in Chapter 13? Can the child support payer force a child support recipient to accept a 5 year payout of an arrearage balance?
The answer is “it depends.” And often, the child support recipient (i.e. the custodial parent) gets to make the decision.
First, you should understand that Section 362(b)(2)(B) specifically excludes from the automatic stay any action to collect a “domestic support obligation.” I read this to mean that if the child support payer files Chapter 13 bankruptcy, the automatic stay protection associated with a Chapter 13 filing should not stop a state court judge from hearing or ruling on a contempt action for collection of child support, nor should it stop a wage or bank account garnishment against the child support payer.
I would point out, however, that some state court judges will not assume anything about bankruptcy and will insist on an order from the Bankruptcy Judge before they will proceed with a child support collection case.Read more on How are Child Support Arrears Treated in Chapter 13 Bankruptcy?…
Filed under Bankruptcy, Chapter 13, Social Security Disability and Bankruptcy by on Mar 5th, 2011. 7 Comments.
I have received several emails from unhappy non-custodial parents who are paying child support and/or whose children receive auxiliary benefits thanks to the non-custodial parent. As one such reader wrote:
How can the non-custodial parent control the use of the benefit for the welfare of the child if the custodial parent is a chronic nonworking individual who lives off welfare and the child support I provide already?
Here are my thoughts: there are really two issues here. The first issue has to do with child support, which is a state court issue. Generally, when a state court judge awards primary custody and child support, he does so with the belief and expectation that the custodial parent is best equipped to take care of the child or children. Even when custody is evenly divided, a judge may award child support if he believes that the non-custodial parent needs the financial resources to best care for the child.Read more on Custodial Parent Uses Auxiliary Benefits and Child Support on Beer and Dancing – What Can I Do?…
Filed under Misuse of funds by representative payee, Representative Payee issues by on Jan 12th, 2011. 2 Comments.
I received the following question from a reader of this blog that raises several interesting questions about auxiliary benefits and the bankruptcy process.
Your blog is the most helpful I have found on the web so far. God Bless You!
I have just been notified that my ex will be receiving SSDI, so in turn my son qualifies for benefits. I was told his benefits would be backdated to June 2010 so I should receive a lump sum. My question is since this is my son’s benefits, do I have to pay taxes on what he receives? I was going put it in his (my sons bank account for college). AND I was about to file BK (From the divorce) so could that be seized in the Ch 7 as assets?
Here are my thoughts, which represent general information about Social Security auxiliary benefits and the bankruptcy process: I believe that the auxiliary benefits payable to your son represents his money, not yours. You may be the payee for those funds, but the money is not yours. I would talk to your bank about how to set up the bank account correctly – it should be clear that the account is owned by him with you as the trustee of the account.
As far as taxes go, you need to speak to your tax preparer. Social Security payments can be taxable based on household income, so the answer to that question will depend on your personal financial situation. Read more on How are Auxiliary Benefits Treated When Custodial Parent Files Bankruptcy?…
Filed under Social Security Disability and Bankruptcy by on Oct 1st, 2010. Comment.
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 and 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.
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.
Jonathan Ginsberg