October 19, 2017

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.

What is Disabled Child’s Recourse if Parent/Representative Payee Misuses Disability Funds

argumentMost of the comments and questions I get on this blog come from parents who are trying to get child support or who have child support obligations but no source of income to pay.  This email comes from a teenager who was approved for disability and who contends that her parents are misusing funds that are supposed to be used for her care and welfare:

hi i am 17 i have been on disability since i was twelve i have a few questions. 1 my parents give me no money from it, nor do they allow me to do extra curricular activites with the money, archery, tae kon do art sculpting etc, is this legal of them? 2 they frequently use the money for the truck payement on a truck that is not neccasary nor running, they dont keep track of the money nor do they keep recepts. is that legal? 3 they wont let me work because it cancels the disability yet they give me no money from it, am i entitled to some money also can i turn them in or set up a confrence or court date to stop the ssi income since i am capable of working desire work and get no benefit from the check??? please i ask for your time soon cause i have to pay for damages and court costtts and cannot accuire work nor income fromm ssi to do so and i will be in comptemt thank you very much

Here are my thoughts: Generally when a benefits are awarded to a minor child, those payments are sent to the that child’s parents or legal guardians who serve as the “representative payee” for that minor child.  The funds should be used for the health, education and welfare of the child.

Social Security rules provide that the representative payee may only use the child’s SSI benefits for the following purposes:

  • medical treatment
  • education or job skills training

The following expenses may also be paid from the child’s SSI account if they benefit the child and are related to the child’s impairment:

  • personal needs or assistance (i.e. in-home nursing care)
  • special equipment
  • housing modification
  • therapy or rehabilitation
  • other items that are approved in advance by the local Social Security office

[Read more…]

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?

Are All Delinquent Child Support Payers “Deadbeat Dads?”

Parents swear, and children suffer 2Are fathers who fall behind on child support payments always “deadbeat dads?”   Some fathers (and their new spouses) argue that the custodial mom can be the villain in child support disputes.   But does this attitude fairly contemplate the real life burden of raising children.

A blog reader named Arlene says that her husband’s ex-spouse is using her three kids as pawns to express anger towards her ex-husband.  I wonder what the custodial mom would have to say about this?

What about mothers who won’t work with the fathers to make sure their kids are taken care of ?  My husband worked 2 jobs and no matter how much he made child support always wanted more.  At one point she wasn’t getting the money that was garnished and blamed him instead of trying to find out where the money was going.   She would rather my husband look like the bad guy to his 3 kids.  Fathers are not always dead beats sometimes the mothers make it impossible.

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.

Disabled Father Argues that Disability Delays Caused Child Support Arrearage

father with kidsI 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.”

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.

Reader Story: Bio Mom and Dad Pay Nothing – Guardian Stuck With All Bills

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.

How Do I Find Out if my Ex-Spouse has Filed for Social Security Disability?

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.

confusedwomanSocial 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?