You do have a few options:

1. Contact Social Security and file a claim for auxiliary benefits.  Obviously the more information you have about the non-custodial parent the better (i.e. his full name, date of birth, Social Security number, last known address, etc.).  Under the law, Social Security is required to make “all reasonable efforts” on behalf of your child(ren).

   Social Security’s own Program Operations Manual System (POMS) provides that SSA must protect the interest of a child by taking an application and developing necessary evidence – see POMS RS 00203.050.   Further, according to POMS RS 00203.065, you, as the custodial parent, can file Form SSA-4-BK to start the process.

2. Contact the court that issued the child support order.  Generally courts that issue child support orders retain jurisdiction over the parties.  You will probably need a lawyer to do this, but you can ask for a hearing to compel the non-custodial parent to cooperate by filing for auxiliary benefits.
3. Try to contact the non-custodial parent directly, or indirectly through relatives.  It is possible that your ex-spouse/non-custodial parent does not realize that filing for auxiliary benefits will not decrease his benefit check at all.  Payments to auxiliaries are in addition to payments received by the disabled person.  He may be willing to cooperate once he understands that doing so will not cost him any money.

In one case, a 39 year Iraqi war vet living in Georgia, with a 10+ year history of regular payments fell behind when he lost his job 2 years ago.  Although now working, the judge would not agree to any payment arrangement and put the delinquent father in jail for 3 months.

Several of these recently incarcerated fathers have filed a class action lawsuit demanding that the state of Georgia provide legal counsel in cases where jail is a possible outcome.

Recently the United States Supreme Court ruled that poor parents are not entitled to court appointed lawyers when facing jail for non-payment of child support so long as state law contains “substantial procedural safeguards” to ensure that those without means to pay are not locked up.

The plaintiffs in the Georgia class action suit are contending that Georgia law does not provide those procedural safeguards.

What do you think?   I regularly hear from custodial parents who write to say that the non-custodial parent refuses to work or works for cash.  At the same time, it seems counterproductive to put a parent like the Iraqi war vet in jail, thereby causing him to lose his new job, putting him even further behind.

Georgia and other states, of course, have no money, and they will no doubt argue to the courts that they should not be burdened with the cost of court appointed lawyers for child support defendants.

What is a good solution to this type of situation?

Information about Social Security claims is confidential and SSA will not release it.  How then do you find out if your ex-spouse is collecting benefits, his current address or even his Social Security number?

One way to gather this information is to use the discovery rules of the jurisdiction that issued the child support order.  Litigants in state court (divorce) litigation can use the rules of discovery that apply in every state.  Under these rules, you can ask the other party (you “ex”) questions (called interrogatories) and you can demand that he produce documents (requests for production of documents).

State court judges enforce discovery requests using the power of contempt – in other words, your ex can be incarcerated if he does not cooperate.

While using discovery to gather information about your ex-spouse is effective, it can also be expensive and may require the assistance of a private lawyer.   However, many family law courts have web sites with sample interrogatories and requests for production of documents so, in theory at least, you can engage in discovery on your own.

Another way to gather information about your ex-spouse is to use private investigation tools readily available on the Internet.   I did a quick Google search and ran across people finder sites like Publicpeoplefinder.com or iinfosearch.com, which charge $100 or less.   I have no personal experience with these particular companies and, as always when buying something online, buyer beware.

Under Social Security’s rules, you can claim disability benefits based on your deceased husband/wife or ex-husband/wife earnings record if:

• you are at least age 50
• you were married to your ex-spouse for at least 10 years
• your ex-spouse was fully insured for SSDI benefits at the time he/she died

You cannot at this point claim disability benefits on the earnings record of a living ex-spouse.

Several years ago, I was represented a disabled ex-wife of a man who got “remarried” after separating (but not legally divorcing) my client.  When we filed for disabled widow’s benefits, Social Security advised us that another “widow” had already been paid.

After proving that my client was disabled medically, I was able to document that my client was also the legal surviving widow and that the other “widow” was in fact not a legal wife.  Social Security ended up paying both my client and “the other woman.”

Disabled widow claims can be tricky and usually it makes sense to hire a lawyer to assist you.  If you are not fully insured for SSDI benefits yourself or if your SSDI benefit amount is less than that of your deceased spouse/ex-spouse, you will want to make sure that your benefit amounts are properly calculated.

Yolanda’s article sets out what Colorado courts are supposed to do – if a non-custodial parent qualifies for SSDI and his children begin receiving monthly auxiliary benefits, these auxiliary benefits will usually reduce the non-custodial parent’s child support obligations dollar for dollar.

I suspect that Colorado’s approach is similar to what you would find in other states, but when it comes to child support payments, do not assume anything.  Further, until the obligations of the parties are put into writing by a judge and issued as an order, no other agreement or assumption matters.

The rules may be different in SSI cases, if the custodial parent is the one receiving SSDI, or if the child himself is receiving SSI.  A good family lawyer can explain the law to you.  As difficult as it may be to come up with the money to hire a lawyer, I think that both  payers and recipients of child support would be very wise to have counsel when appearing in court.

All too often I get emails or blog comments from fathers who complain that their child support obligation exceeds their gross pay (this is especially true when there are multiple child support orders).  Similarly, I hear from too many custodial parents (both moms and dads) who are trying to get by with no child support, while the non-custodial parent has moved on with a new family in a different state.

If you have learned nothing else from this blog, recognize that child support issues bring out very raw emotions, that judges can sometimes issue orders without seeing the full picture and that if you go into court without a lawyer, you will probably get a bad result.

How are child support arrearage balances treated in Chapter 13?  Can the child support payer force a child support recipient to accept a 5 year payout of an arrearage balance?

The answer is “it depends.”  And often, the child support recipient (i.e. the custodial parent) gets to make the decision.

First, you should understand that Section 362(b)(2)(B) specifically excludes from the automatic stay any action to collect a “domestic support obligation.”  I read this to mean that if the child support payer files Chapter 13 bankruptcy, the automatic stay protection associated with a Chapter 13 filing should not stop a state court judge from hearing or ruling on a contempt action for collection of child support, nor should it stop a wage or bank account garnishment against the child support payer.

I would point out, however, that some state court judges will not assume anything about bankruptcy and will insist on an order from the Bankruptcy Judge before they will proceed with a child support collection case.

Thus, one option you have as a child support recipient is to continue with your child support collection efforts since the bankruptcy stay does not impact you.  However you may decide that the child support payer’s Chapter 13 offers certain advantages to you.   In some situations it may be in your interest to accept payments on the arrearage through the child support payer’s Chapter 13 plan.

Why would you want to accept arrearage payments through a Chapter 13 plan?  Often you will find that the child support payer’s plan offers you the best chance to get paid, while preserving your rights to collect using state court remedies if the plan fails.

Chapter 13 operates as a court supervised repayment plan.  The debtor submits a budget and a proposed plan.  Usually Chapter 13 payments are made through a payroll deduction, which means that there is a reliable source of funding.  Often Chapter 13 is used to stop a repossession or foreclosure, so the debtor often has a compelling reason to make his plan work.

Further, most Chapter 13 trustees will object to any plan when (1) the debtor is not current with on-going child support obligations and (2) the child support recipient objects to the proposed monthly plan distribution of the arrearage.

Therefore, the child support recipient has a great deal of leverage over the child support payer if the payer seeks to cure any arrearage in a Chapter 13.   If the recipient decides that Chapter 13 is a better option for collection than state court or child support collection agencies, then a reasonable Chapter 13 plan payout may be in all parties’ best interests.

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.

Usually the state court judge does not demand that the child support recipient account for the money received.  Nor do state court judges have the resources to monitor the behavior (i.e., the refusal of a custodial parent to get a job).  Judges also recognize that child support payers often have hostile feelings towards the custodial parents and decline to get involved in domestic spats.

Custodial parents will, of course, argue that child support is often awarded in an amount that is less than what is actually needed to care for a child.

The bottom line as far as state court child support is concerned is this: it will be an uphill battle for a child support payer to convince a judge to modify support or change custody.  As any domestic relations lawyer will tell you child support modifications are difficult and expensive and you will need evidence in the form of witnesses, receipts and/or video tape to convince most judges.

As far as Social Security benefits are concerned, the standards are a little different.  A child beneficiary is called an auxiliary and assuming that the child is not a legal adult, someone has to serve as the representative payee.

Usually SSA will appoint the custodial parent as the representative payee and that person has what amounts to a fiduciary duty to spend the auxiliary’s money for the benefit of that child.  Further, a rep payee must file annual reports setting out how that money was spent.

If a rep payee does not spend the auxiliary’s money properly SSA can commence a fraud investigation, revoke the rep payees authority and even demand repayment of wasted funds.

Over the years I have seen a few instances where SSA did conduct such an investigation.  However, SSA is currently in the midst of a budget crunch and I suspect that fraud investigations of custodial parents is not high on the list.  Still, if you suspect that the custodial parent is wasting funds and you have evidence of this, you can report the alleged fraud to SSA by clicking on the link.

I would be careful about reporting fraud unless you know that it exists and that there is evidence of same.   If you allege that the custodial parent of your child is misusing auxiliary SSA benefits, you are going to make an existing tense situation worse, if that is possible.  Further, if SSA concludes that your report of fraud was itself fraudulent you could face sanctions.

At the end of the day, both state court judges and Social Security decision makers are going to focus on what they believe is the best interest of your child, rather than any real or perceived that exist between you and your child’s other parent.

Your blog is the most helpful I have found on the web so far.  God Bless You!

I have just been notified that my ex will be receiving SSDI, so in turn my son qualifies for benefits.  I was told his benefits would be backdated to June 2010 so I should receive a lump sum.  My question is since this is my son’s benefits, do I have to pay taxes on what he receives?  I was going put it in his (my sons bank account for college).  AND I was about to file BK (From the divorce) so could that be seized in the Ch 7 as assets?

Here are my thoughts, which represent general information about Social Security auxiliary benefits and the bankruptcy process:  I believe that the auxiliary benefits payable to your son represents his money, not yours.  You may be the payee for those funds, but the money is not yours.  I would talk to your bank about how to set up the bank account correctly – it should be clear that the account is owned by him with you as the trustee of the account.

As far as taxes go, you need to speak to your tax preparer.  Social Security payments can be taxable based on household income, so the answer to that question will depend on your personal financial situation.

The bankruptcy issue can get confusing because of how Social Security money is treated under the bankruptcy laws.  I don’t believe that your son’s lump sum money would be reachable by a Chapter 7 trustee since it is not your money, especially if the account holds only funds relating to the Social Security benefits.  The monthly benefits would not count for purposes of calculating your current monthly income under the median income test.  However, the monthly benefits would be considered in your Chapter 7 budget since your son is part of your household.  Confused?  Thank Congress for the byzantine nature of these laws.

I would talk to your bankruptcy lawyer about these issues, preferably before you set up the bank account.  Even though bankruptcy is a federal procedure, the exemption laws, which control what you can shelter, vary from State to State.   Your bankruptcy lawyer can confirm the accuracy of my general observations and offer legal advice specific to your situation.

Finally, thanks for the kind words about my blog.  Flattery is sincerely appreciated!