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.
You may also want to follow up in person at your local Social Security office to check on the status of your inquiry. Social Security is moving towards a paperless system and once your “claim” gets into the system any Social Security clerk should be able to access it.
2. write a letter to your state child support enforcement agency and provide them with as much information as you can and ask for assistance in recovering funds owed you
3. use the discovery power of the state court that issued the divorce order to ask your ex-spouse if he is receiving Social Security disability benefits. If you get no response you can “notice” your ex-spouse for a deposition. Failure to abide by discovery can be punishable by fines or imprisonment. If you cannot afford a private lawyer, legal aid may be able to help you.
4. contact your local member of Congress or United States Senator’s office. Most elected officials have a staff person who handles Social Security issues. Often a letter from your Senator can go a long way to breaking through the red tape.
Finally, let me say that I also receive emails from disabled dads who express a great deal of frustration when a child support recovery office seizes their entire lump sum and $250 of their $800 per month disability payment. We’ll discuss this issue in my next post.