Do Auxiliary Benefits Offset Child Support Obligations?
Social Security law provides that dependent children may claim “auxiliary benefits” when a disabled non-custodial parent becomes eligible for SSDI benefits. Do these dependents’ benefits serve to offset a non-custodial parent’s child support obligations?
It appears that the answer to this question depends on laws of the State that issued the support order.
In Illinois, for example, there is case law which provides that auxiliary benefits do offset child support obligations. According to a March, 2006 article in the DuPage County Bar Association Newsletter, Illinois Social Security disability attorney Harold Conick wrote:
Courts across the nation have struggled with the concept of whether or not child benefits payable under the Social Security disability programs should be credited against the support obligation of a disabled obligor parent. Illinois follows the majority view on the issue that Social Security benefits paid on behalf of the non custodial parent satisfy the parent’s child support obligation for the period that such benefits are received. Marriage of Henry,156 Ill2d 541, 622 N.E.2d 803(1993)
In Henry, the obligor petitioned the trial court for modification of his child support obligation. The Illinois Supreme Court stated that the clear intent of the Illinois legislature is set forth in 750 ILCS 5/510. Any judgment respecting maintenance or support is to be modified only to installments accruing subsequent to due notice by the moving party. However, the Henry court held that Social Security dependent disability benefits paid on behalf of an obligor, satisfied such parents child support obligation. The court came to this conclusion after analyzing both the minority and majority view of several state courts opinions on this issue. The prevailing logic on the matter is that since Social Security disability benefits are earned, and are based upon the earnings record of the primary beneficiary, such benefits should be regarded as income. Flemming v. Nestor. The court analogized income from Social Security child benefits as identical to income derived from employment by the non custodial parent. The court, cited the rationale of Jamizez v. Weinberger , “Social Security death benefits represent money earned and contributed through the efforts of a working parent… which payments, like the proceeds of an insurance policy, substitute as income to the worker’s family should he . . . become disabled.” The Henry court further relied on authority that held that Social Security dependent disability benefits replace support the child loses upon the disability of the parent wage earner, responsible for the child’s support. Tossie v. Califano.
The Henry court reasoned that reliance on such disability benefits is warranted as a substitute for an obligor’s loss of earning power and obligation to support his dependents. Schulze v Jensen Therefore, the Illinois Supreme Court in Henry found that there really is no distinction between Social Security child disability benefits and those child support benefits paid from the non custodial parent’s wages, and therefore, credit shall be given for such benefits against a non custodial parent’s child support account. Interestingly, Justice Heiple, dissented upon the basis that the court’s ruling in Henry amounted to “sub silentio and retroactive modification of a child support order, previously deemed to be impermissible” Justice Heiple specifically referred to the non custodial parent’s delay in applying for modification of the child support order immediately upon the occurrence of his disability. Thus, suggesting that a claimant’s timely petition for modification of a child support order would avoid what Justice Heipel apparently considered a silent and automatic modification of a child support order.
I also found a very detailed article written in 2002 on the web site SupportGuidelines.com by attorney Laura W. Morgan. Ms. Morgan’s article “The Effect of Social Security Benefits on Child Support” reports that courts in various states have adopted essentially three approaches to the question of how to treat the receipt of these benefits with regard to the retired or disabled parent’s child support obligation:
- the court may give a dollar-for-dollar credit for the Social Security benefit received against the child support obligation;
- the court may or may not give a dollar-for-dollar credit, depending on the circumstances of the case;
- the court may not give a dollar-for-dollar credit against the child support obligation, but must consider the child’s receipt of the Social Security benefits as a factor in determining the child’s needs.
Ms. Morgan’s article provides specific case law references from many States and is an excellent starting point for your research. Note that this article was written in 2002 – meaning that the law in your State may have changed.
Comments on Do Auxiliary Benefits Offset Child Support Obligations?
yes….Social Security law provides that dependent children may claim “auxiliary benefits”
I have been involved for several years with a man who has an autistic son. The child is not severely autistic but has medical needs.
The child lives with his mother in a city close by. The mother and father have been divorced for approximately 8 years. They share custody of the child and the father enjoys regular visitation with the child but the child resides with the mother.
There was a court order for child support at the time of the divorce. The father was working full time and making very good wages.
As often happens the ‘good job’ ended and now the father makes about 20% of what he formerly did. (He only made the wages that the child support was based on for 2 years after the divorce. Tax documentation can be provided for proof of income.)
Neither the mother nor the father have deemed it necessary to alter the child support order. The father pays on average $400 a month – sometimes more, sometimes less – but ALWAYS pays.
The problem here is that the mother is receiving SSI for the child based on his disability. (Paid from his father’s earnings) She also receives MediCal – Section 8 housing assistance, and other low income programs to help her out. The father pays his child support in cash because the mother does not want to report it. The mother also works full time at a professional job that nets her around $28,000.00 a year.
The mother is constantly contacting the father requesting money. I have tried to counsel the father in his rights but he does not want to ‘create waves or cause grief that would negatively affect his son’. He ends up giving in and handing her money that he can’t afford to give.
This woman is very high maintenance: Standing bi-weekly nail appointments – hair salons – pedicures. This woman is funding a long distance relationship that causes round trips of 117 miles two to three times a week.
She also refuses tell the father what her actual income amounts to. (all funding earned and otherwise provided by other programs)
Can you give us some advice? We are in California and it is my understanding that since the child is receiving SSI based on the father’s funds the Child support can be reduced dollar for dollar?
The child was not awarded SSI untill after the divorce – should he go back to court and get his child support payments altered?
What is his legal responsibility (and/or any legal repurcussions that could arise) in the question of her not reporting the $300 to $600 he gives her in cash for his son’s support?
Thank you in advance for any help you can provide.
If he is giving her cash payments, he is a moron, that does not count as support! He only has to pay what he is ordered to pay. Any more is his problem.
I had custody of my son i am on SSD for a failed spinal fusion and receive workers comp. benifits as well. My son’s mother now has custody of my son my question is can i remove him from my SSD?
Not so simple. (Except that the father should not ever, ever pay in cash- this is simply allowing manipulation). I know a CP who has accepted both SSDI benefit and child support, increasing support by a whopping 400%. Not all disabled NCPs can afford a lawyer. IF child support services makes a mistake and does not offset the support order with the existing SSDI child benefit, or if the state law for child support services is such that a modification must proceed through the court system, there is no remedy that I have found, excepting a case of fraud in which the child is not the biological child of the NCP (proven fraud). The only remedy is the CP re-paying the mistake. How this is fair, I cannot fathom. The federal law errs in favor of the child (no matter who, or what agency, makes the mistake).
What if obligor of child support now has custody of the child and the obligor got the lump sum pament of the child, and the other child got the lump sum payment because he turned 18. Will obligor get credit???????According to Texas Family Code section 157.009 obligor can only get credit if payments were made to obligee. This new law left alot of room for the “what if’s”!!!!!!!!!!!!!IT IS CALLED CHILD SUPPORT.. IT IS FOR THE CHILDREN NOT FOR THE OBLIGEE……..
Can someone help here? I went to court for enforcement because I have been totally disabled since 2009. So the state court a few years ago ordered $150.00 a month to pay. Well I got behind not working. So now she applies for AUX benefits and gets a 5 month lump sum and then 496.00 monthly. That’s $346.00 more than the court ordered. They will not apply that difference to back support and this ssdi. Now I have to pay an additional $65.00 out of already a poverty check. Can the Attorney Generals office in Texas do that?
Thanks
My husband has a 12 year old daughter with an ex girlfriend, lets call her Jen. Jen receives SSD from a car accident in which she injured her back (however, she recently told my husband and I that she is pregant so I guess she is not too disabled). I would like to mention that she had a chid previous to the daughter she has with my husband. Since then she has also adopted her drug addict sister’s son with her soon to be ex husband. She has been separated from her husband since February of 2010. She left him only a month after they adopted her sister’s child together. Jen is currently going through a divorce and a custody battle (with the child she adopted with her husband) and is now pregnant by her boyfriend! Bringing her grand total to 4 kids with 4 different fathers. Disgusting in my opinion. Anyway, she has told us she receives SSD benefits for her 3 children as well. I believe they are called “auxillary payments” under the child support guidelines it states these benefits should be deducted from the child support obligation. Jen often brags that she brings in $3000 a month between her SSD checks, child support checks, and the adoption stipend she gets from the State of New Jersey. My husband and I are not in the best financial position either. We currently receive daycare assistance, food stamps, and WIC for our 2 sons. My husband works full time and I work 30 hours a week and attend school full time (I have 2 years left). I really need some advice on what we should do. Please help! Thank you!