The Social Security Administration has two types of benefits available for individuals: Supplemental Security Income – which is additional money for those with low income; and, Social Security Disability Insurance – which is payment for those who are eligible for Social Security retirement benefits.
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Supplemental Security Income
Supplemental Security Income, or SSI, is considered a public welfare benefit just like food stamps or other welfare programs. Supplemental Security Income provides monthly cash payments to low-income elderly or disabled individuals, including blind or disabled children. To be eligible for SSI an individual must have limited assets. SSI is not counted as income when calculating monthly payments for child support and neither can your SSI benefits be seized for child support payments or garnished to make child support payments.
For children who are receiving SSI, the Social Security Administration reduces the child’s SSI benefit by two-thirds of the amount that the child is receiving in child support.
Social Security Disability Insurance
Social Security Disability Insurance, or SSDI, is funded through payroll taxes and only those who have paid a certain amount into this insurance program can apply for benefits. SSDI provides monthly cash benefits to disabled individuals and families who have a significant history of working. There is no limit on the assets an individual can have to be eligible for SSDI.
SSDI is counted as income and is used when calculating California monthly child support to be paid by the non-custodial parent. SSDI payments can be taken or seized for child support should the custodial parent prove you have not been making your child support payments. If seized, your SSDI payment will be reduced to reflect the payment being made to the custodial parent. If you are entitled to back pay when your SSDI application is approved, this back pay can also be taken or seized if the custodial parent can prove that you have not been making your child support payments.
Social Security Disability Insurance Derivative Benefits
SSDI derivative benefits are available for a child whose parent receives SSDI. A non-custodial parent’s child can receive derivative benefits if the non-custodial parent is receiving SSDI. SSDI derivative benefits count as income for the parent from whom they derive.
If the non-custodial parent is ordered to pay child support and the child’s benefits derive from the non-custodial parent’s SSDI, the amount of the benefits received by the child is subtracted from the child support order. A California court will issue an order based on the remaining amount due under the order. For example, if the amount of SSDI benefits the child receives from the non-custodial parent is $300 per month and the non-custodial parent has a child support order to pay $500 per month, then the California court will order child support payments to be set at $200 per month. If the SSDI derivative benefits the child receives is more than the child support obligation calculated using the California Guidelines, then the order is set at zero.
If you get SSDI, your child may be eligible for Social Security dependents’ benefits based on your earnings records. You should make sure that either you or the other parent apply for benefits for your child as soon as you are approved for SSDI. In California, dependent child benefits are credited towards any child support obligations. This means, for example, that if your child support obligation is $400 per month, but your child gets $250 a month in dependent benefits based on your earnings record, you would only be responsible to pay for the $150 per month difference. Child benefits may also be used to cover any arrearages (past due child support) you may have accrued after you became disabled.
To obtain derivative payments, the disabled parent must notify the custodial parent of their receipt of social security benefits. The custodial parent then applies for the derivative Social Security benefits directly through the Social Security administration. The amount of the derivative Social Security benefits is then credited toward the child support obligation. In other words, the Family Court will typically give a dollar for dollar reduction against the disabled parent’s child support obligation to the custodial parent by the same amount as the derivative Social Security benefits.
Example, if the derivative Social Security benefits are $300 per month and the California court set child support obligation is $300 per month or less, the non-custodial parent’s child support obligation would be zero.
Under California Family Code, a court can give credit for child support “unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid.” California Family Code further states that the custodial parent must contact the Social Security Administration within 30 days of receiving notification from the non-custodial parent that they are receiving benefits. The custodial parent must apply for and cooperate with the SSA if he or she is “potentially” eligible for the derivative payments. The legislature has used this word “potentially” to avoid a custodial parent from claiming a lack of eligibility based on ill motives or a lack of good faith.
If the custodial parent refuses to apply or fails to cooperate, the amount of monthly derivative Social Security benefits he or she would have received is then credited toward the noncustodial and disabled parent’s monthly child support obligation. The noncustodial parent does need to provide evidence of the benefits that would have been received if the custodial parent would have done what the law requires.
Issues regarding derivative Social Security benefits and their impact on child support in a California divorce case should be resolved by the parties without court intervention. If the custodial parent forces the non-custodial parent to seek court intervention, the non-custodial parent may be compensated for attorney fees and costs expended to resolve the matter.
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