June 16, 2019

Interview with Family Lawyer Monica Hanrahan Freitag – Part 1

This is part 1 of my interview with Monica Hanrahan Freitag, a domestic relations lawyer at the law firm of Hanrahan Freitag Family Law.  In part 1, Monica and I discuss how family law judges approach child support calculations and the special problems that arise when one or both parents are disabled.    How are child support payments adjusted?  How is the long delay in Social Security adjudication addressed?

Here are some of the links discussed in this interview:

Hanrahan Freitag Family Law firm site

Fulton County, Georgia Family Court forms

Pro se Family Law forms – courtesy of attorney Steve Worrall

Can disability benefits be garnished to pay child support?

I am often asked if Social Security Disability Benefits can be garnished to pay child support payments. The answer of this question depends on what type of Social Security Disability benefits you are receiving.

If you are receiving Supplemental Security Income (SSI), the federal government does not allow these benefits to be garnished. SSI is given to lower-income individuals – those individuals such as the aged, blind, and disabled who meet certain low income and resource levels and do not qualify for Social Security Disability (SSDI). The federal government funds SSI through general tax revenues so that the qualifying individuals can pay for expenses such as clothing, housing, and food. Because the federal government treats SSI as a public welfare benefit and not as income for the purposes of child support payments, they do not allow Supplemental Security Income benefits to be garnished.

On the other hand, Social Security Disability Insurance (SSDI) can be garnished to pay child support payments. SSDI benefits are funded from the money you as a worker paid into the Social Security system (through employment taxes) when you were still working. The amount of SSDI benefits you get is based on how much you earned/how much you contributed into the Social Security system (via taxes). When employees become disabled and are unable to work, these SSDI payments act as a replacement of income. According to the federal government, because SSDI is considered a substitute for lost wages, it can be garnished for child support payments.

A benefit of SSDI is that children of the disabled workers that receive SSDI payments may qualify to receive SSDI benefits until a certain age as well, and these payments can be subtracted from the child support owed.

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…]