August 21, 2019

Custodial Parent Uses Auxiliary Benefits and Child Support on Beer and Dancing – What Can I Do?

parent wasting child supportI have received several emails from unhappy non-custodial parents who are paying child support and/or whose children receive auxiliary benefits thanks to the non-custodial parent.   As one such reader wrote:

How can the non-custodial parent control the use of the benefit for the welfare of the child if the custodial parent is a chronic nonworking individual who lives off welfare and the child support I provide already?

Here are my thoughts: there are really two issues here.  The first issue has to do with child support, which is a state court issue.  Generally, when a state court judge awards primary custody and child support, he does so with the belief and expectation that the custodial parent is best equipped to take care of the child or children.  Even when custody is evenly divided, a judge may award child support if he believes that the non-custodial parent needs the financial resources to best care for the child. [Read more…]

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.

Working Ex-Spouse Wants SSDI Offset

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.

ssdi offset questionsSecondly, 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?