July 17, 2019

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.

The Henry court reasoned that reliance on such disability benefits is warranted as a substitute for an obligor’s loss of earning power and obligation to support his dependents. Schulze v Jensen Therefore, the Illinois Supreme Court in Henry found that there really is no distinction between Social Security child disability benefits and those child support benefits paid from the non custodial parent’s wages, and therefore, credit shall be given for such benefits against a non custodial parent’s child support account.   Interestingly, Justice Heiple, dissented upon the basis that the court’s ruling in Henry amounted to “sub silentio and retroactive modification of a child support order, previously deemed to be impermissible” Justice Heiple specifically referred to the non custodial parent’s delay in applying for modification of the child support order immediately upon the occurrence of his disability. Thus, suggesting that a claimant’s timely petition for modification of a child support order would avoid what Justice Heipel apparently considered a silent and automatic modification of a child support order.

I also found a very detailed article written in 2002 on the web site SupportGuidelines.com by attorney Laura W. Morgan.   Ms. Morgan’s article “The Effect of Social Security Benefits on Child Support” reports that courts in various states have adopted essentially three approaches to the question of how to treat the receipt of these benefits with regard to the retired or disabled parent’s child support obligation:

  • the court may give a dollar-for-dollar credit for the Social Security benefit received against the child support obligation;
  • the court may or may not give a dollar-for-dollar credit, depending on the circumstances of the case;
  • the court may not give a dollar-for-dollar credit against the child support obligation, but must consider the child’s receipt of the Social Security benefits as a factor in determining the child’s needs.

Ms.  Morgan’s article provides specific case law references from many States and is an excellent starting point for your research.  Note that this article was written in 2002 – meaning that the law in your State may have changed.



About

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

Comments

  1. yes….Social Security law provides that dependent children may claim “auxiliary benefits”

  2. Dawni Luce says:

    I have been involved for several years with a man who has an autistic son. The child is not severely autistic but has medical needs.

    The child lives with his mother in a city close by. The mother and father have been divorced for approximately 8 years. They share custody of the child and the father enjoys regular visitation with the child but the child resides with the mother.

    There was a court order for child support at the time of the divorce. The father was working full time and making very good wages.

    As often happens the ‘good job’ ended and now the father makes about 20% of what he formerly did. (He only made the wages that the child support was based on for 2 years after the divorce. Tax documentation can be provided for proof of income.)

    Neither the mother nor the father have deemed it necessary to alter the child support order. The father pays on average $400 a month – sometimes more, sometimes less – but ALWAYS pays.

    The problem here is that the mother is receiving SSI for the child based on his disability. (Paid from his father’s earnings) She also receives MediCal – Section 8 housing assistance, and other low income programs to help her out. The father pays his child support in cash because the mother does not want to report it. The mother also works full time at a professional job that nets her around $28,000.00 a year.

    The mother is constantly contacting the father requesting money. I have tried to counsel the father in his rights but he does not want to ‘create waves or cause grief that would negatively affect his son’. He ends up giving in and handing her money that he can’t afford to give.

    This woman is very high maintenance: Standing bi-weekly nail appointments – hair salons – pedicures. This woman is funding a long distance relationship that causes round trips of 117 miles two to three times a week.

    She also refuses tell the father what her actual income amounts to. (all funding earned and otherwise provided by other programs)

    Can you give us some advice? We are in California and it is my understanding that since the child is receiving SSI based on the father’s funds the Child support can be reduced dollar for dollar?

    The child was not awarded SSI untill after the divorce – should he go back to court and get his child support payments altered?

    What is his legal responsibility (and/or any legal repurcussions that could arise) in the question of her not reporting the $300 to $600 he gives her in cash for his son’s support?

    Thank you in advance for any help you can provide.

  3. If he is giving her cash payments, he is a moron, that does not count as support! He only has to pay what he is ordered to pay. Any more is his problem.

  4. I had custody of my son i am on SSD for a failed spinal fusion and receive workers comp. benifits as well. My son’s mother now has custody of my son my question is can i remove him from my SSD?

  5. Not so simple. (Except that the father should not ever, ever pay in cash- this is simply allowing manipulation). I know a CP who has accepted both SSDI benefit and child support, increasing support by a whopping 400%. Not all disabled NCPs can afford a lawyer. IF child support services makes a mistake and does not offset the support order with the existing SSDI child benefit, or if the state law for child support services is such that a modification must proceed through the court system, there is no remedy that I have found, excepting a case of fraud in which the child is not the biological child of the NCP (proven fraud). The only remedy is the CP re-paying the mistake. How this is fair, I cannot fathom. The federal law errs in favor of the child (no matter who, or what agency, makes the mistake).

  6. FUSTRATED IN AUSTIN says:

    What if obligor of child support now has custody of the child and the obligor got the lump sum pament of the child, and the other child got the lump sum payment because he turned 18. Will obligor get credit???????According to Texas Family Code section 157.009 obligor can only get credit if payments were made to obligee. This new law left alot of room for the “what if’s”!!!!!!!!!!!!!IT IS CALLED CHILD SUPPORT.. IT IS FOR THE CHILDREN NOT FOR THE OBLIGEE……..

  7. Can someone help here? I went to court for enforcement because I have been totally disabled since 2009. So the state court a few years ago ordered $150.00 a month to pay. Well I got behind not working. So now she applies for AUX benefits and gets a 5 month lump sum and then 496.00 monthly. That’s $346.00 more than the court ordered. They will not apply that difference to back support and this ssdi. Now I have to pay an additional $65.00 out of already a poverty check. Can the Attorney Generals office in Texas do that?

    Thanks

  8. Confused in NJ says:

    My husband has a 12 year old daughter with an ex girlfriend, lets call her Jen. Jen receives SSD from a car accident in which she injured her back (however, she recently told my husband and I that she is pregant so I guess she is not too disabled). I would like to mention that she had a chid previous to the daughter she has with my husband. Since then she has also adopted her drug addict sister’s son with her soon to be ex husband. She has been separated from her husband since February of 2010. She left him only a month after they adopted her sister’s child together. Jen is currently going through a divorce and a custody battle (with the child she adopted with her husband) and is now pregnant by her boyfriend! Bringing her grand total to 4 kids with 4 different fathers. Disgusting in my opinion. Anyway, she has told us she receives SSD benefits for her 3 children as well. I believe they are called “auxillary payments” under the child support guidelines it states these benefits should be deducted from the child support obligation. Jen often brags that she brings in $3000 a month between her SSD checks, child support checks, and the adoption stipend she gets from the State of New Jersey. My husband and I are not in the best financial position either. We currently receive daycare assistance, food stamps, and WIC for our 2 sons. My husband works full time and I work 30 hours a week and attend school full time (I have 2 years left). I really need some advice on what we should do. Please help! Thank you!

  9. I have been divorced for 4 years now & receive no child support or alomoney.I have sole legal custody of our 3 children & have remarried.My ex has sold his company business when he was 40 years old & has been retired since then, he receives no pension and has not worked in 10 years) he now is disabled.To my knowledge my ex is filing for disability due to his illnesses. If he does receive SSD will my children which reside with me full time, qualify for any type of income from the fathers disability.

  10. Hello,
    I see nobody has responded to your question yet.
    My experience would give you 2 suggestions. Make sure there is a current child support order in place. AND tell your child support case worker that the kids dad is tring to get SSDI. My worker had to file a special garnishment order after he and the children were approved for payments. Had I not acted quickly, those lump payments would have been directed directly to my children with me as representative payee, having to account for what all moneyis used for. This may differ according to State. I waited 5 years to get a dime, now I get all 15,000 through child support office.
    Good luck

    @Kim:

  11. what if the father and mother has joint legal custody of their daughter. The father is on SSID and the child also get his SSID by them having joint custody of the child it was said that either or cause serve as payee n so that father ended up being that so when the mother found out she told the child support that he did not give her any money but instead he spend the money on the child can they still make him pay child support because of what she said when got proof that he spent all the lump sum on the child and she sign the receipts.

  12. Sara Jordan says:

    Can I obtain a child support order after 11 years? I am custodial parent. He lives in another county, but sees his daughter 40 percent of the time. I am single. My income is less than his and his wife’s. Thanks in advance for any answers or insight you may have!!

  13. Joint managing concervator says:

    I am getting the run around from Social Security office can you help? I am disabled and receive SSDI. My child began receiving SSDI auxiliary beneifits in 2001. The child made statement of complaints of misuse of funds when he turned 18. I have made several complaints myself prior and after that. The Social Security office has never called any contact numbers on the complaints and refuse to speak to me about my complaints. I was joint managing concervator of the child throughout the entire time the child received the aux SSDI benefits. Do i have a right to view these annual reports the Representative payee was suppose to file with SS office? Proof of misuse of funds, abuse and abandonment is easily found in court documents of various courts and the childs school and medical records. Also The Social Security office is refusing to give me a copy of my own court records of my disability hearing. What steps can i take? The SS office denies my child access to these records and myself access to these records. The child has even sign rights to me to view his records. Still SS office refuses to comply.

  14. Joint managing concervator says:

    @FUSTRATED IN AUSTIN:
    Your right Texas Fam. Code is still not taking into concideration the big picture. As obligors we took a big hit in 1999 when Legislature “recodifide” family law. This process was meant to simply change the numbers of our statues but many statues got “lost?” I am very familiar with 157.009 added in 2009 and it only gives credit to lump sum payments ie The first check received. There is a bill entered in 2011 that addresses crediting all payments the obligee receives for the child on behalf of the obligor. This house bill 486 is suggesting an improvement but The Representative has covertly caused even more damage with his HB 486 subsection (c). That is his 157.009(c). Please contact him and explain to him we need credit for all payments and keep the credit from the date the payment made. While we need the credits for all payments received we also need credit when credit is due. Crediting on the date payment is made. This is acceptable accounting. Not crediting on the date payment is made is extortion from the disabled. Think about it. If lenders or mortgage companies did this we would never reduce the debt because of the accruing interest. Contact Representative Dutton and your Rep. and Senator and tell them obligors must receive credit for ALL payments made and credit on the date payment is made. RECEIVE ALL CREDIT WHERE AND WHEN CREDIT IS DUE. Any thing less is a declaration of WAR against Disabled Americans!

  15. Jeff Moore says:

    I live in Indiana and recently became permanently disabled. I was approved for SSDI disability benefits and also my son has been approved for auxilary benefits. My child support obligation is $92 per week or $364 per month while my son will be receiving $433 in auxilary benefits. My question is may I use my auxilary benefits in lieu of these child support payments? My disability payments will begin on May 11th which is when my unemployment will cease which pays the full child support benefits at this time. My ex-wife wants ALL of the auxilary benefits PLUS the child support payments…..hardly seems fair does it? I only receive $966 a month in disability she shouldn’t be entitled to get his auxilary benefits of $433 and also $364 a month from my disability check on top of it. Thank you for your assistance.

    Jeff

  16. MY EX HUSBAND IS BEHIND OVER $6000 IN BACK CHILD SUPPORT. HE IS COURT ORDERED TO PAY AROUND $425 A MONTH IN CURRENT CHILD SUPPORT. HE HAS RECENTLY RECEIVED SOCIAL SECURITY DISABILITY INSURANCE AND OUR SON HAS BEEN GIVEN A MONTHLY AMOUNT FROM THAT. MY QUESTION IS THIS… IF I RECEIVE A LUMP SUM FROM MY EX HAVING TO WAIT TO BE APPROVED FOR HIS SSDI BENEFITS (WHICH WILL BE FOR TWO YEARS OF WAITING) – WILL THAT AMOUNT MY SON RECEIVES FROM SSDI APPLY TO THE BACK CHILD SUPPORT MY EX HUSBAND OWES ME? SINCE THIS IS FEDERAL MONEY- AND NOT MY EX HUSBANDS MONEY- CAN HE USE THAT TO WIPE AWAY WHAT HE OWES ME IN CHILD SUPPORT?

  17. WE LIVE IN THE STATE OF TEXAS SO I DONT KNOW IF THAT MAKES A DIFFERENCE… CAN SSDI BE USED TO PAY ARREARAGES IN CHILD SUPPORT CASES?

  18. My ex has committed fraud with Social Security. He has claimed our 2 children live with him and has received benefits for them since 11/2010 due to receiving SSDI. He also received a lump sum amount from 8/2008-11/2010 in which he has never given the children any money. I have made a report to the SS ofc and they are doing an investigation and claim they will garnish his payment so he can pay my children the money they are owed. SS will not give me a time line. Does anyone know how long this can take?
    I was told by child support office that the payments given to my children will go towards his child support obligation.

  19. A word to the wise: Even if your state allows in its code or law for a non-custodial parent to use a child’s auxiliary benefits to offset child support payments { as does Virginia Code 20-108.2(C)(1) }, the Social Security Administration has informed me that IT IS NOT ALLOWED TO BE USED AS CHILD SUPPORT!!!! They have also informed me that I must pay back over $7500 for “misuse” of the child’s benefit, since I used it as child support. This, in my opinion, is beyond ridiculous! If the benefit cannot be used as child support (care for the child), then what in the world is the money for??? My child’s benefit is now being paid to the custodial mother, so what is the difference between me paying the support to her, or Social Security paying the money to her???
    Social Security is now threatening to garnish MY SSDI to get paid back over $7500 for the “misuse”. My SSDI benefits already leave me well below the poverty level, and I am at my wit’s end trying to understand how this could be possible. Beware and DO NOT fall into this SSDI scam!! It seems that every time I turn around, Social Security is trying to get out of paying LEGITIMATE claims. SHAME ON THEM!!!

  20. @Jeff Moore: Jeff, be VERY careful in this situation. Each state has its own laws concerning this issue, but apparently, Social Security does NOT allow this (even though the state may allow it). I had the very same issue….I petitioned the court in Virginia to have the child’s benefit serve as a dollar for dollar offset for my child support obligation. The court ordered that the child’s benefit could be used as such, BUT, Social Security is now telling me I must pay them back over $7500 for “misuse” of the child’s benefit. You should discuss this with Social Security before you end up with the same problem. I am contesting Social Security’s decision, and have an appointment next week to discuss it. Make sure you don’t get caught in Social Security’s trap. Good luck.

  21. @Jerry:

    Why would you want to remove your child from your disability benefits. Are you trying to divvy up his share with your ‘current’ children or spouse? I have heard some really sorry things but this ranks right up there. He is your child, he is entitled. When he turns 18, payments go directly to him if he is still in school.

  22. @Confused in NJ:

    So, what’s your issue? Is hubby still paying child support? Do you think he shouldn’t pay child support for a child that is his? In my state, they take into consideration income from both parents, since this is SSDI and not SSI it should be considered if it is hers. Hands off any payments to the children as those payments are considered to be property of the children and she is just a designated payee.

    Seems both yourself and hubby are working so I am not understanding.

  23. @Lasha:

    The only way he is going to get credit for support is to make the custodial parent designated payee. Is there a reason that he does not want to do this? My ex tried to claim my sons SSDI benefits and has jot so much as taken him out for ice cream. As a matter of fact it was the day after his birthday that he called complaining about not being able to claim the SSDI. What he forgot was to even wish his kid a Happy Birthday.

    Two sides to every story…..just sayin!

  24. Kyle Whitis says:

    @MCOX:

    Child support isn’t about punishing the ex husband, it’s about the child. So in most cases, yes.

  25. Some of this that I’m reading is absolutely ridiculous! The CHILD(REN) deserve both auxiliary payments as well as child support. The auxiliary payments are NOT even coming from YOUR benefit; be thankful that you are receiving life long benefits. Do you realize the expense that comes along with taking care of a child Full-Time? In the event you don’t, here goes: They need a place to live, heat, running water, food, furniture, clothing, books, clothes, shoes, coats, money for school pictures, projects & field trips. Sports, activities, gas to transport the child to and from, birthday gifts, Christmas gifts and any other holidays they may celebrate — this does not even include vacations — which is rare for most one parent households. So for all of you whining fathers & step-mothers — Give Me A Break. What is the child and parent supposed to do when YOU fall behind on your child support obligations? The child(ren) still have to eat, they still need a place to live, bills still have to be paid…the CP can’t tell the utility company “Johnny’s behind on his child support, I can’t pay my light bill”…You sound like selfish pigs! It should not matter if that CP was receiving $7,000 per month, just be happy that your child is alive, well, being taken care of, not homeless and living in a shelter. The complainers in my opinion “Stuck on Stupid”…

  26. First off the auxiliary benefit is on behalf of the disabled parent so it does come from the benefit. However if the auxiliary benefit is more than what the child support order was then why should the disabled parent, keyword disabled parent be responsible to pay more than what the child support amount should be? Its not like the disabled parent can get a job and pay the difference and in my case especially, I am 224K overpaid, yes that is right overpaid in child support. When I became ill and knew I had no other choice but to file for social security at the last minute. I sold my business and gave 80 percent of the sale money to my ex through the courts for child support. So they are taking the child support out of my check in addition to her receiving the auxiliary benefit (which I am having modified) So in essence my child is receiving more a month than I am in disability. And to boot is overpaid 224k. So every situation is different. Now if the child support after being adjusted is more than the auxiliary payment then the parent should pay the difference, but not have the child receive both the auxiliary and the child support on top of it. If a person is suppose to get 1000 a month per the child support order and they get the 1000 per month from the auxiliary payments then the
    obligation is paid. But if they get the 1000 a month in auxiliary payments and you expect a 1000 more a month then you are 1000 more than you should be and this is greed anyway you look at it. People with disabilities have more expenses I guarantee it and should take care of their children. But when they can’t and have the children receive a benefit on their behalf the other parent should be happy not greedy.

  27. @RLawrence:
    To Rlawrence. If you are receiving an auxiliary payment for your child from your ex. This is the reality. The auxiliary benefit your child receives is a benefit paid on behalf of the DISABLED parent, not a gift or an additional payment for you to benefit from. If you were to get as an example $400 a month in child support and the auxiliary payment is $400 or more per month then it should be ok. If the auxiliary payment is less then the difference should be made up by the disabled person. But why do you think you are entitled to both?? It is a benefit paid on the behalf of the disabled person if the person wasn’t disabled you would only get child support and settle for that. But you want child support and an extra payment? Sounds like you want to capitalize off of your ex’s disability and that is wrong. Don’t be greedy in that case. And yes children are expensive but if a person is disabled they can only do what they can and have bigger expenses than you could imagine. They should take care of their children, but sometimes they can only do what they can. don’t be “STUCK on GREED”

  28. john smith says:

    I am the father who is disabled. I am the full time custodial parent. My son received benefits off of my SSDI. My ex wife pays child support. Can she go to the state and claim that the benefits my son receives should act in place of her child support she pays. His benefits are off of my social security number. Also, I was divorsed in 1997 after a 3 year marriage. Would social security notified my ex wife about my disability?
    Thanks,
    John

  29. dfrustated says:

    My husband was diagnosed with stage 3 melanoma cancer 2/2011. He has been off work on a medical leave of absence and off payroll since 3/2011. We were recieving donations from his coworkers and my husband still paid his monthly child support of 664.00 to his ex until the donations ran out and social security kicked in. Well we were getting some (very little) donations here and there for Aug and Sept and she would get more than half of the donations on top of social security of 336.00 a month. Now our tax refund has been taken from us because the Texas AG says my husband is in arrears. We were told he still has to pay the 664.0 on top of the 336.00 she gets in social security. We have a hearing 3/2012 in Texas and my husband has to appear to hopefully get a modification in child support and hopefully get our money back!!!! Yeah, Right! My husband is the one dying of cancer, not her. How is this fair? Shouldn’t social security be considered child support? She works as a flight attendant and makes damn good money! My husband & I have a 9yr old little boy to support as well. Our income only consists of social security of 2000.00 a month and he’s supposed to pay her 664.00 a mo. and pay for our health ins. of 300.00 a mo. How are we suppose to live and support our child when she’s getting more money than we are.When is the Texas AG’s Office gonna pull their head out of their a– and do what’s right? Some of these custodial (mothers) are all about the money and try to see how far they can stick to their ex (like her) and the courts let them get away with it!!!! She could careless about her son as long as she gets that social security and child support!!!!!! Again, my husband is the one dying, not her and she is getting awarded all this money because he has cancer!!!!!!

  30. @ RLawrence: Thankyou, Thankyou, Thankyou for your post….I agree 100% and I am going through this right now

  31. @Confused in NJ:
    Dear confused in NJ,
    I just went through court in NJ for my son who resides in NC with me, I am on disability and get auxiliary benefit for my minor child, well NJ deduct that from child support and father of the year only pays $34 a week mind you he makes well over $70,000 so my only income is SSD but it is not enough to survive so I went to court trying to get an increase and instead they DECREASED it, since she has that income plus getting for the kids HE CAN Get it reducd. You don’t need a lawyer just tell him to fill out a Modification for reduced child support because of the income she is recv. would love to know how it turns out.

  32. I live in NC with my 14 yr old child and the ex lives in Michigan with our 18 yr child still not graduated child. I was paying child support directly to her till a year ago when i decided to take the money out of our situation and I filed for support for the child that I had knowing that it would be an offset situation. She was impouded the min wage for nc since her disabilty was not approved, (so i paid her 414 after the 200 offset for child that lives with me) Just recently she tells me it is approved and they will go back pay her and each child will get $200 and that will be her child support payment for the child that resides with me -that I will have to back pay her for year that she was off set for the $200 for child that resides with her. I am feeling like something is wrong so now gov’t pays her support and I will have to back pay her for something that is not my fault? Can anyone shed some light on this…I have been paying and paying for my kid(s) and she gets of with finding another way out of providing a portion of something.
    Confused

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