September 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. [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.

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.

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.

Should Mom Cut Disabled Dad Some “Slack” for Past Due Child Support?

Difficult choiceShould a custodial parent “cut some slack” to a non-custodial parent who is disabled and unable to work?  Child support orders that are based on a father’s pre-disability income will be untenable when the non-custodial dad cannot work.   The disabled father may not have the funds to hire a lawyer to go back to court to ask for  a modification, and the delinquency balance will grow and grow.   As a number of disabled fathers have reported, a child support delinquency resulting from an unexpected medical condition and loss of income can result in a wholesale forfeiture of both the lump sum and part of the monthly disability award. Is it reasonable to ask custodial parents to help the fathers of their children, or should the child support awards be fully enforced?

Here a woman named Patty weighs in.  Do you agree with her take?

I think lots of women take advantage when a man is down and out and is disabled. I believe that yes they should take care of their children but what they can afford monthly based on disability income. They should also look at the reasons why that person is behind maybe he could not work for a few years and maybe the mother wouldn’t tell them where their child was and he just happened to stumble on where she lived. Also the Grandmother who has placement told him not to worry about child support and now she is worried and thats just what the mother said but the man stated that if they need any help then he would help if he has the money. Come on women quit being so money hungry. Oh yes by the way, I am a woman stating this.

Couple’s Joint Checking Account Drained for Old Out of State Support Order

Bounced checkI regularly warn  my clients that child support orders do not grow stale or disappear.  Even if the child did not live with the parent awarded custody, the obligation remains as long as the child support order remains in place.  If the custodial parent received welfare benefits, the state issuing those benefits may gain the right to collect from the non-custodial parent.

Here is a very disturbing report from a man who is facing financial ruin when his joint (with new wife) checking account was drained to pay an old and probably forgotten child support debt:

my checking account which receives both my ssdi & my new wife’s ssdi have been seized for the full amount of both our checks with no notification and leaves us with a negative $19,000 balance.  My bills are bouncing including my mortgage. We are trying to get an attorney but since we live in florida but the support order is from Mass. no one will take the case. The child is now 40 years old and did not live with the biological mother during the time period of this support, but all other payments were made. Please help us before we become one the homeless.

Reader Story: Ex-Husband Wants Child Support Offset in Texas

My wife has 2 children from a former marriage.  Her ex just went on SSDI and the kids get $250.00 each from this.  In the past he has only paid $250.00 per month child support and that has come from his new wife paying it, before that he would not pay, now when have been served papers to go to court so he can get this dropped off, they say that the SSDI is enough, can he get this done in the state of Texas?

divorce decreeJonathan’s response: this is a legal question that can best be answered by a Texas lawyer who practices in the area of domestic relations.  A good starting point would be Laura W.  Morgan’s Child Support Guidelines article, which cites a 1997 Texas appellate case (Johnson v. Johnson) that permitted a child support obligor a dollar for dollar offset credit for the Social Security benefit received against the child support obligation.  The justification for such an offset is that auxiliary benefits arise from a claimant’s work and payment into the Social Security system – since these contributions are based on income the claimant should be able to use funds that arise therefrom to offset child support obligations.

Note, however, that the Johnson case was decided in 1997 – over 10 years ago.  Laws change as do court opinions.   I would never go to court and rely on a 10+ year old case without first researching the current state of the law.  Further, state court judges can make their own decisions about offset issues, and about modifications to child support orders.  This is a case in which you should consult with a Texas lawyer familiar with child support issues.

Keep in mind as well that judges make decisions about child support primarily based on what is the best interest of the minor child.  While the non-custodial spouse’s income is a factor, it is not the only factor.

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.

child supportIn 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. [Read more...]

Can Social Security Disability or SSI Benefits be Garnished to Pay Past Due Child Support?

Can a custodial parent who is owed past due child support turn to Social Security to collect that child support from a disability recipient?   Yes, according to Social Security Ruling 79-4, the Social Security Administration can withhold a percentage of a claimant’s benefits in an amount equal to what SSA could withhold to pay delinquent income tax debt.

lost wagesNo interest or penalties may be withheld, and before the first withholding may commence, SSA must give the claimant 60 days notice.

The rules appear to be different when the disability benefits in question are SSI (supplemental security income) benefits.    The web site esocialsecurityappeal.com states that a “custodial parent has no right to any of the proceeds from SSI.”    Tim Moore, the editor of DisabilitySecrets.com also states that SSI recipients will not have their monthly disability benefits and past due benefits seize.  According to Mr. Moore, the rationale to protect SSI from levy relates to the nature of SSI as a welfare benefit:  “since SSI is essentially a public welfare benefit and does not derive  not from a claimant’s earnings record, SSI benefits cannot be taken for other purposes, just as food stamps and AFDC funds, likewise, cannot be seized.”