July 23, 2014

Auxiliary Benefit Offset Rules Vary From State to State

social security dependents' benefitsMy 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.

All too often I get emails or blog comments from fathers who complain that their child support obligation exceeds their gross pay (this is especially true when there are multiple child support orders).  Similarly, I hear from too many custodial parents (both moms and dads) who are trying to get by with no child support, while the non-custodial parent has moved on with a new family in a different state.

If you have learned nothing else from this blog, recognize that child support issues bring out very raw emotions, that judges can sometimes issue orders without seeing the full picture and that if you go into court without a lawyer, you will probably get a bad result.



About

Jonathan Ginsberg practices Social Security disability law in Atlanta, Georgia.  He represents clients in claims before the Social Security Administration.

Comments

  1. been ordered to pay 110. weekly fell behind after leaving job awarded ssdi after 6month wait ex awarded 840.00 monthly recieved lump sum from ssdi and was never reported to child services I cant afford any more lawyers RI says I owe over 6000 cant get my license renewed she recieves more than i was orderd to pay im diebetic i need my car any suggestions would be appreciated some days are tougher than others nobody cares keep kicking that dog when hes down

  2. CroShayLady says:

    You are not a dog, you are a human being. Pick yourself up and do things for yourself. Take control. Don’t place ‘blame’ on other people or agencies. Life happens. A lot of us are in the same place you are.

    Do you have a child support case through your local enforcement agency? If not…you need to apply for services.

    You may choose to:

    ….Request a modification of your child support order based on your new income of SSD.
    That is, unless SSD was already considered in the establishment of said order. Also you might wish to ask for your income to be offset by your extra costs of taking care of your disease. Diabetic supplies, proper food, etc, when requesting modification of child support order.

    Prove to the child support agency that your ex wife received a lump sum from your SSD award. They may need her to sign a ‘satisfaction of support judgment’ to allow the credit against child support arrears. Or they may not.

    You may want to contact your state to request a payment agreement so you can renew your drivers license. Explain you have a hardship and are unable to work and receive SSD benefits, from which child support is paid. If this doesn’t help you may want to apply for a loan, sell anything you own that could bring in some money, etc.

  3. Tammy Broussard says:

    When my husband was wrkn he was makin 2240 a mth and payn child support to his ex-wife of 300 a mth…he has become disabled a yr ago and is now recieving 1178 a mth from disablility and his son is gettin 196 a mth from his disability…will my husband have to pay more child support from his disability r is the 196 covering that?

  4. CHRISTIE MCGUIRE says:

    I have a daughter with my ex-husband, he was award SSDI a few years ago..stating that he was bipolar. Which I somewhat agree with, but I do not feel that he is so bad that he can’t work. He does work under the table for his mother and he also recently got a job working part time working security for one of the local businesses. Which in my book shows he is able to work. When my daughter came home from one of her few visits from her father’s she told me how her Dad was buying a motorcycle. I am not a greedy person, if he wants a motorcycle…I really do not care, but I think he should help take care of our daughter first. How the government thinks 110.00 a month as a “auxillary payment” is helping is beyond me. My husband now, worked a fulltime job and did side jobs just to make ends meet, as well I work a fulltime job as well and we are still struggling to make sure she has a roof, food and clothing. Then recently my husband got laid off due to the bad economy..so my question to you is how is it, I work every day and pay my taxes and the government allows things like this to happen? When I called the social security office and asked them how this is happening, they treated me like I am the criminal, and how dare I inquire why he is getting away with this. So if you can let me know how to get along with 110.00 a month for a child that needs daily medication, daycare, food, clothes and school supplies please respond.

  5. Tonya Walker says:

    I recently received a notice that my daughters benefits had been reduced due to the fact that her father got added his wife and step child to his claim. So now my question is, if this was less than what he was paying in child support will she be able to receive child support in addittion to the SSI benefits.

  6. A. Shehab says:

    In the next few weeks, I am about to receive “an early retirement benefits,” because I am reaching the age of “63, ” and I do have a dependent child been added of “3” three years old. Now the question is about garnishment of the upcoming benefits “for myself & my dependent son,” because I have an outstanding out-of-state and “questionable” child-support for other “2” sons of the ages “31” and “22” years. What are the limitations and percentage of garnishments to our benefits?
    P.S. I am living in NY State and the 1992 child support court order is from WA State .

  7. Fred Dacanay says:

    Im currently living in sc.My wife recently received social security in the amount of 1400.and probably received retro money also inwhich I don’t know much and she would not tell me.2 things I would like to know 1.what the law here concerning : my daughter receiving money monthly from social security,does that offset me paying child support.2.My wife filed for social security before we were seperated,is that consider marital asset inwhich in court we agreed everything 50/50.I feel since took half my retirement, I should receive half of the retro money that she received from social security. I would like to my standing with the laws here in south carolina.Thank you.

  8. M. Archer says:

    My question is this. If the parent disabled was once the custodial parent while getting the benefits, lost custody to the non-custodial *now custodial* parent, who receives the benefits for the minor child?

  9. sarajane campbell says:

    When my ex-husband was granted social security benefit, my 3 children each received a “lump sum” of money that was retroactive. My ex is now taking me back to court claiming that he should get a credit for what he has paid in child support based on this lump sum. My children do not receive any monthly benefit from social security, but my ex does. I’m trying to get some literature that I can present to the court on this that would support my claim that this should not be allowed. Any suggestions? Thanks!
    Also, am I entitled to half of his retro if we were married during the time period that the retro check covers?

  10. State of Colorado: My grandson, disabled, receives SSI, age 15, his mother and ex-husband divorced several years ago. My grandson has been receiving SSI from the state since he was 5 years old. Now, the father is saying he receives SSI, so child support needs to be reduced. the account is dedicated to my grandson, it assists with needs his father can not provide. How can one say SSI now turns to child support. It does not even sound right. Because of the reduction in Child support, SSi goes up, so what the father comes back and lowers child support and now my grandson pays child support to his sisters and brothers. Not fair as I see it.

  11. NEVER assume anything when it comes to SSD auxiliary benefits and child support. I received benefits for my son for over 5 years and used them to offset my child support obligation (which was completely legal and written into our divorce/custody agreement in a court of law in Virginia). NOW, Social Security is making me pay back $6250.00 for “misuse” of payee benefits. Social Security is witholding MY benefit checks until the “misused” amount is paid off….no reconsideration, no hearing, no NOTHING…just BAM!!! No more money. Just like that, even though it says in the Social Security ACT, Section 1631, that the benefits CAN be used foe the benefit and care of the child. Which part of chils support is NOT for the “benefit and care” of the child????

  12. I am having a problem with the state of Florida with child support, here is some back ground.
    In 1997 i was Injured while serving in the Military, I was discharged and starting receiving 40% VA Comp for my Injuries. In 2005 my now Ex-wife and i split we were divorced in 2006 I was ordered to pay $228.00 plus $32.00 for Arrears for a total of $260.00 Biweekly. due to my injuries getting worse i lost time at work and was let go from several jobs. But, when I worked my check was Garnished the full $260.00, every payday until i lost my job. The last day that i was able to work was July 25 2007, I have not been able to work since then.
    In Oct 2007 I filed for SSDI/SSI and because i lost my job earlier My current wife and my stepchildren ended up homeless (evicted) until Feb 2010 when i was Approved for SSDI for a monthly payment $829.00 plus my VA comp of $890.00. for a total income of $1719.00 per month, the court would not let me file for modification. when i was ordered to pay child support i was working and making $11.50 per hour and working 40 hours per week Plus my VA Comp. for a total monthly Income of aprox. $2237.59.
    Now I had placed my children on my SSDI paper work and was notified that my Ex-wife had received a check for each child in the amount of $5787.00 for a total of $11,574.00.
    and started receiving an Auxiliary payment for each child in the amount of $211.00.
    then on Jan 1 2011 they started garnishing my SSDI in the amount of $538.90 every month.
    This case is receiving $501.30 from my SSDI check through an IDO and $422.00 from the Auxiliary payment, the court will not give me credit for the monthly Auxiliary payment. their explanation is that they don’t see the payment they can’t credit it. My problem is that I was told that states violate Federal law on child support and the feds do not do anything about it example. My ex-wife has not filled out a financial affidavit and the court based her income on minimum wage. If i would have not filled one out they take me to court for non compliance. my ex-wife very rarely has responded when i file but they demand me to respond when she files. According to the Divorce Decree she is only entitled to $591.90 per month but is receiving $923.30 a $331.40 over payment that should be applied to my arrears what can i do she is still receiving $923.30. please help

  13. @Tonya Walker: Here is the deal I am going through the same thing. YES auxiliary benefits offset your child support obligation in Florida, ex. if your ordered to pay 500 a month in child support and they receive 600 a month in auxiliary benefits then your child support obligation is paid. However if the auxiliary payment is less than your child support obligation you have to make up the difference. This is what you need to do. I also assume the Florida department of revenue is doing the income deduction order from your SSDi check for child support. You can modify your child support case. File a modification of child support, go to SS office and get proof of the auxiliary payments, have your child support reduced to the amount you should be paying based on your income. File a motion to vacate the child support because there is no way to credit your child support if she is getting the auxiliary check sent to her. The court will order the vacate to stop child support and credit the auxiliary benefits towards your child support. Take the signed order from the judge go down to your friendly haha Florida department of revenue office and get the income deduction order stopped. Good luck and thanking you for serving and protecting my freedom.

  14. CAROL J TURNER says:

    I HAVE A QUESTION, MY NIECE HAS A 4 YEAR OLD SON, HE WILL GO TO SCHOOL THIS YEAR, AND HIS FATHER HAS FINALLY GOT SSI, AND WAS TOLD HE DOESNT HAVE TO PAY CHILD SUPPORT????????????? ISNT THE CHILD NUMBER ONE?

  15. April Carney says:

    Florida Law: if a child gets SSI that doesn’t offset child support….only the parent’s benefit offset child support; if the child is receiving benefits from parents SSD or SSI then it offsets child support…..and if the benefit is higher than child support that amount goes to the benefit of the child….. arrearages before benefits started are not allowed to be credited by benefits received, arrearages after benefits began can be credited by benefits not withstanding modification………..which means……..FILE IMMEDIATELY!!! go to court ASAP seeking modification as soon as there is a change in income/ benefits received….

    1) Florida Case Law to look up at your local law library
    a) Kirwan v. Kirwan, 606 S0.2d 771 (Fla. 5th DCA 1992)
    b) Ford v. Ford, 816 So.2d 1193 (Fla. 4th DCA 2002)
    c) Sealander v. Sealander, 789 So.2d 401 (Fla. 4th DCA 2001)
    d) Wallace v. DOR, 774 So.2d 804 (Fla. 2d DCA 2000)
    i) Cannot be used to reduce the father’s arrearages established before the child’s Social Security benefits started.
    ii) Benefits paid directly to minor child exceeded disabled father’s child support could not be used to reduce past arrearages incurred when child was not receiving benefits.
    e) DOR v. Sprague, 733 So.2d 585 (Fla. DCA 1999)
    i) Applied to meet the obligation incurred simultaneously with their receipt.
    f) Wallace v. DOR, 774 So.2d 804 (Fla. 2d DCA 2000)
    i) Excess paid inures to the benefit of this children
    g) Doyle V. Doyle 789 So.2d 499
    h) Teta v. Teta 297 So.2d 642, 645 (Fla. 1st DCA 1974)
    i) Arrearages constitute a vested right not subject to modification.

  16. mike clark says:

    My wife’s ex is on disabilty and she was getting SS chilod support. SS is know stating that the ex is making too much money and is reducing the child support by $100 per month. Why is the ex not being cut instead of the child support? Thank you Indiana

  17. Mike, I have no idea. I would think that child support enforcement should give you some explanation.

  18. Carol are you saying that the judge canceled the child support order, or that your niece cannot collect because she cannot garnish SSI?

  19. Hello! I am a resident of IL, and I have twin boys under 1 year of age. Their dad (who also resides in IL) gets only SSDI in the amount of $880. My boys get auxillary benefits in the amount of $298 ($148 for each boy), which is paid to my account. He says that is my child support, and I won’t get anything else from him. He has left me unable to pay the rent on our house and other bills. I am going to be forced to move into a much smaller place by September 1. There is no order for child support as of yet, because we have been living together for almost 2 years and the boys are only 10 months old. However, he did sign the paternity papers and birth certificate. Can anyone with credible information PLEASE PLEASE give me some advice here??? Will the state take out child support from his SSDI???

  20. My son receives SSDI as a disabled adult child from his deceased fathers SS. He also receives SSDI on his own past employment. And he is not able to hold down a job due to his PDD. He’s had a very hard time finding any jobs anymore.
    He fathered a child with a disabled female. The child is now 2 yrs old. We had to file for custody in order for him to continue to share in the babies life since she moved out of our home.
    My question is…..can any of his benefits be garnished or considered for child support if ordered? No one seems to know of the DAC program :(

  21. Hello. My ex husband gets SSDI. He also gets moneies for our 13 yr. old daughter, $425.00 monthly. Our custody is 50-50 down the middle on everything. 1 week at dads 1 week at moms. No child support order because of the 50/50 split. My question is should he split the $425.00 w/ me(the mom)? Dad(my ex) says Attorneysaid he did not have to share the $$$. I’m just curious. I’ve no immediate desire/need for this $$, simply curios. I live in Indiana.
    Thank you , Mika

  22. Casey Pendleton says:

    My husband and I are still married but we are not together. We live in Ohio. He gets his monthly SSDI check. My kids do not get anything at all. I talked to the CSEA and they are saying there is nothing they can do about it. I called the social security office and they will not help me because I don’t know all of his information. Is there anything else I can do? Also my oldest childs dad who I am not married to, also gets SSDI and I can’t get anything from him either. Do you know anything I can doo???

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