January 22, 2019

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.”