According to this report, 33 year old Knoxville resident Desmond Hatchett has children with 11 different women.  The state child support recovery office takes half his minimum wage paycheck and divides it up.   Some of the mothers receive as little as $1.49 a month. The oldest child is 14 years old.

Hatchett acknowledges that he fathered four kids in the same year – twice.

In 2009, Hatchett appeared in court for failure to pay child support and he promised  to change his behavior.  However, he has produced nine more babies during the past three years.  Mr. Hatchett has not broken any Tennessee laws with his behavior.

Mr. Hatchett has not filed a claim for disability, but if he does in the future and is awarded benefits, Social Security could be on the hook for both his benefits as well as tens of thousands of dollars each year for auxiliary benefits.

What, if anything, should the state of Tennessee do about Mr. Hatchett’s irresponsible behavior?  Should the women Mr. Hatchett sleeps with bear any responsibility for this situation?

As far as supposed misuse of child support payment is concerned, that is a matter for your state court or state child support enforcement office – Social Security will not get involved in that.

Social Security will get involved if a representative payee (often a custodial parent) misuses auxiliary benefit funds.   When benefits are due to a minor child, Social Security will designate a representative payee to receive and disburse those funds for the benefit of the child (called the “beneficiary”).

Social Security has set out a number of rules that govern the conduct and decisions of representative payees.  Here is what SSA says about the obligations of a rep payee:

First, you must make sure the beneficiary’s day-to-day needs for food and shelter are met. Then, the money can be used for any of the beneficiary’s medical and dental care that is not covered by health insurance, and for personal needs, such as clothing and recreation. If there is money left after you pay for the beneficiary’s needs, it must be saved, preferably in an interest-bearing account or U.S. Savings Bonds.

Representative payees also have reporting obligations – they  must submit an annual worksheet detailing how the auxiliary benefits were used.   SSA’s guidelines also contain examples of what constitutes an appropriate larger expenditure such as furniture or a car.

Social Security reports that it disburses $20 billion annually to 4 million beneficiaries through the representative payee program.  Misuse is and has been a problem and since 2004, SSA has stepped up enforcement actions against payees.

Anyone can report misuse of funds by a representative payee – you can call 800-772-1213.    You cannot, however, use the “misuse of funds” reporting to harass or seek revenge on a former spouse or partner.  Reporting abuse is similar to reporting a crime – you need to be certain that the abuse is going on and by filing a report you risk adverse consequences if SSA determines that your report was not legitimate.

Thanks to my colleague Tomasz Stasiuk whose blog post Parent Misusing Social Security Benefits inspired this post.

Parental accountability courts are run by representatives from the state’s Child Support Services division. These coordinators work with the parents, serving as a mentor and directing them to existing community resources. Each court is tailored to its particular county’s need. The coordinators may be called upon to help the unemployed prepare resumes or prep for a job interview. They might refer people to drug rehabilitation programs or other support services. Once those problems are addressed and the person is established in a job, it is up to the individual to make sure the child support is paid or the court has the option to garnishee wages.

As I understand the concept, state child support enforcement offices and county jails argue that incarceration does not solve the problem of delinquent child support payments, especially when jobs are scarce anyway and an unemployed dad with a prison record is even more unlikely to find a job.

Currently federal law prevents state governments from seizing more than 65% of a Social Security benefit.  When paper checks are eliminated the entire deposit will be susceptible to seizure.

In many cases the past due payments represent interest and fees and are owed to state governments who claim the funds after paying welfare benefits to the children of non-custodial parents who did not pay child support.

Should non-custodial parents be subject to 100% seizure of their Social Security benefit payments in every case.  Should a distinction be drawn between debt that relates to current child support as opposed to old support obligations.  Should SSI payments remain exempt from any garnishment?

It will be interesting to see how this shakes out.

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.