August 20, 2014

Social Security’s Move to Paperless Payments Will Likely Impact Child Support Collection

Social Security recipients who owe child support will soon find that their entire benefit check may be seized by state governments looking to collect past due amount.  The Associated Press reports that in March of 2013, SSA will phase out paper checks in favor of electronic payments in the form of direct deposits and prepaid debit cards.

Currently federal law prevents state governments from seizing more than 65% of a Social Security benefit.  When paper checks are eliminated the entire deposit will be susceptible to seizure.

In many cases the past due payments represent interest and fees and are owed to state governments who claim the funds after paying welfare benefits to the children of non-custodial parents who did not pay child support.

Should non-custodial parents be subject to 100% seizure of their Social Security benefit payments in every case.  Should a distinction be drawn between debt that relates to current child support as opposed to old support obligations.  Should SSI payments remain exempt from any garnishment?

It will be interesting to see how this shakes out.

How do I Find my Ex-Spouse’s Social Security Number and Other Personal Information?

search for ex-husband's social security numberI 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.

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. [Read more...]

Interview with Family Lawyer Monica Hanrahan Freitag – Part 3

This is the third and final installment of my interview with Atlanta based domestic relations lawyer Monica Hanrahan Freitag of the law firm Hanrahan Freitag.  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.

Interview with Family Lawyer Monica Hanrahan Freitag – Part 2

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.

Interview with Family Lawyer Monica Hanrahan Freitag – Part 1

This is part 1 of my interview with Monica Hanrahan Freitag, a domestic relations lawyer at the law firm of Hanrahan Freitag Family Law.  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:

Hanrahan Freitag Family Law firm site

Fulton County, Georgia Family Court forms

Pro se Family Law forms - courtesy of attorney Steve Worrall

Disabled Husband Not Paying Temporary Child Support

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.

How Do You Find Out if Your Ex-Husband is Receiving Disability Benefits

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:

  1. can they go after the back benefit “lump sum” to recover past due child support; and
  2. 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...]

Can disability benefits be garnished to pay child support?

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.

How Should Courts Balance the Needs of Custodial Parents with the Financial Reality of a Disabled Non-custodial Parent

Conflict in a familyThe comments and questions I receive on this site essentially fall into two camps.  On one hand, the custodial parents (usually the mom) argue as follows:

What about the MOM of the CHILD or whoever else is taking care of your child? Is she/he on a fixed income? I’m sure being the only person taking care of your child, it is tight so y r u so special that you shouldn’t have to pay just because u r on a fixed income? If you are BEHIND in Child Support then u SUCK!! Period.

On the other hand, the non-custodial parent (usually a dad) writes with arguments like this:

During the time I was out following three heart attacks my support got in arrears. I was taken to court. From the get go I was treated like a criminal. Later I filed for SSDI and after 3 years and multiple denial a judge approved me. I am 20k behind now. My benefits letter states i will recieve $900 a month, a vast sum of money to try and live on I know. But minus the $550 a month for arrearages makes it better. So after all I get $350 an month to exist on. Personally I would rather be able to work, because $350 isn’t worth what you go through to get it. There’s a lot of predjudice against people when they say they are disabled. What some people don’t see or won’t accept is some of us are forced into disability.
I never expected to get enough from SSDI to “live” on, but I did expect enough to survive on.

Then there are the cynical readers:

Child support should be taken from both parents equally put into a monitored account and a debit card should be given to the custodial parent, all money used with account would be tracked. Now adays child support is used as a way of getting free money for travels new cars hanging out at the malls and nothing to do with the kids.

Are there any fair solutions?  What do you think?