I receive a lot of mail from moms (custodial parents) who express a lot of anger at their ex-husbands (or non-custodial fathers). What do the dads have to say? Here is a comment from a dad who explains how the long disability adjudication process has caused him hardship:
“I recently won my SSDI case. Apparently some people don’t realize what it takes to get approved. I payed my support on time every week, no complaints. I believe I should support my child. But a few years ago I had 3 heart attacks, it’s an hereditary thing, that resulted in me having 5 by-passes. Also I had back surgery to try and correct problems from working in places like gravel pits and hard manual labor all my life. I was immediately fired from my job.
It’s a long, long process to get a claim approved. During which time you have to rely on the kindness of others. And believe me you have to prove you can’t work. You can’t just take a doctor’s note in and get approved. You go through alot of testing by your people and state doctors who are there to get you denied.
During the time I was out for these things 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 alot 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. I’ll be homeless before long and none of the shelters around here will let me stay there because I draw too much on SSDI. And even the goverment housing is $500 a month.”
Filed under Reader Stories by on Oct 18th, 2009. Comment. 
Questions about offsets continue to fill my inbox. This one from Dina asks about a common area of confusion:
Dear Mr. Ginsberg,
I receive SSDI and my son (5 y/o) receives an SSDI auxillary payment. His dad wants to reduce the child support he pays to me dollar for dollar based on the SSDI auxillary monies my son gets every month.
I think I understood from your post on April 2009, that the SSDI Auxillary payments to my son does not offset any child support that I receive from the dad. Did I understand this correctly?
Can you direct me to information that I can provide to my son’s dad’s lawyer that shows him he cannot reduce the dad’s child support to me dollar for dollar based on my son’s auxillary award?
Thank you – you provide an invaluable free service – thank you!
My response: First, I think that the rules on offset depend to a great degree upon the jurisdiction where the support order was issued. Rules about offsets are state law questions and every state has different rules.
Secondly, I believe that the offset would only be applicable if your ex-husband was the one receiving SSDI. The logic of permitting an offset arises from the nature of SSDI benefits. SSDI payments arise from tax contributions that one makes when one is working. In other words, if your ex-husband was the one receiving SSDI, auxiliary SSDI benefits would serve as a substitute for his earning power.
Here, you are the one receiving SSDI based on your work. Your SSDI (partially) replaces your income and your earning power. Why should your ex-husband get the benefit from your contributions into the Social Security system?
Filed under Blog by on Oct 17th, 2009. Comment.
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?
Jonathan’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.
My husband and I have custody of my husband’s cousin’s 2 children. Bio mom and bio dad are not together. They both do not pay child support but are ordered to do so. They are in arrears upwards $25,000. The courts refuse to do anything. Bio father in and out of prison for other mean, horrible crimes. Bio mother has been receiving Social Security but her claim may be fraudulent and benefits terminated.
I have to go to court next month and I was told by someone at DSS that the child support would stop and the arrears could too. These parents have literally TRIED their BEST to proove themselves incapeable of taking care of these wonderful children and NOW is my chance to finally , finally terminate all rights they have, hopefully…thats all we want. After all of these years of stupid courts. The children deserve more out of life than what they started with.
Filed under Reader Stories by on Oct 12th, 2009. Comment.
Your ex has not paid child support and says that he is disabled. Has he filed for Social Security disability? This is the dilemma faced by June, who wrote me the following:
my ex is over 5k in arrears. He just sent the friend of the court a letter from the doctor stating he cannot work. How do i find out if he has filed for disability? I have no contact with him, he keeps disappearing. Do i file for my child and wait and see if my ex has filed, or is there a way to find out if he is receiving anything or has even filed for benefits? i am lost in this whole thing.
Jonathan’s response: I am assuming that there is an order from a State court ordering your ex to pay child support. As a party to that litigation you may be able to serve post-judgment discovery on him and simply ask. A lawyer representing you in the State court support action can assist you with this.
Social Security may not be much help as privacy rules will most likely prevent them from revealing anything about your ex’s case, even though your child may be eligible for auxiliary benefits (that will be in addition to whatever your ex receives himself).
You may also want to check with the child support enforcement office in the jurisdiction where the support order was issued (if you have moved, you can most likely get the file transferred to where you live now.
In most jurisdictions, the obligation to pay child support remains active and enforceable until it is modified. One question I would ask your own lawyer – does this letter from your ex’s doctor make any difference in his obligation to pay?
Filed under Reader Stories by on Oct 12th, 2009. Comment.
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.Read more on Do Auxiliary Benefits Offset Child Support Obligations?…
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.
No 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.”
Jonathan Ginsberg