Here are some of the links discussed in this interview:

Kessler, Schwarz Solomiany law firm site

Fulton County, Georgia Family Court forms

Pro se Family Law forms - courtesy of attorney Steve Worrall

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.

1. can they go after the back benefit “lump sum” to recover past due child support; and
2. are their minor children entitled to auxiliary benefits based on the father’s Social Security benefits

Here is my response:

First, you have to realize that there are two areas of law involved here – Social Security rules, which are federal, and state laws arising from state court child support orders.  Further state child support recovery units also may be involved, which creates yet another level of bureaucracy.

As discussed elsewhere on this blog, SSDI benefits may be attached to pay past due child support, but SSI benefits may not be attached.  However, a state court divorce or child support order is not “nullified” just because a non-custodial parent is receiving SSI.  Social Security may not be willing to withhold or seize payments on your behalf, but a parent who does not pay may have to answer to an angry state court judge and possibly face incarceration if he or she did not make some of his or her lump sum available to care for his or her child.

You should also be aware that Social Security privacy rules do not allow SSA personnel to reveal any information about your ex-spouse’s case.  Social Security also has no responsibility to contact a benefit recipient’s ex-spouse or children to tell them about available benefits.

Here is what I would suggest to a non-custodial parent who thinks that her ex-spouse has been awarded benefits:

1. write a letter to Social Security and identify yourself and your children as possible claimants for unpaid child support or alimony and ask that your letter serve as a claim against your ex-spouse’s account and/or for a claim of auxiliary benefits.   If you have your ex-spouse’s Social Security number and date of birth that would be very helpful.   You can find the address for the Social Security office where your ex-spouse lives by using the office locater tool on the SSA.gov site.  I generally send letters to Social Security using return receipt requested.

You may also want to follow up in person at your local Social Security office to check on the status of your inquiry.  Social Security is moving towards a paperless system and once your “claim” gets into the system any Social Security clerk should be able to access it.

2. write a letter to your state child support enforcement agency and provide them with as much information as you can and ask for assistance in recovering funds owed you

3. use the discovery power of the state court that issued the divorce order to ask your ex-spouse if he is receiving Social Security disability benefits.  If you get no response  you can “notice” your ex-spouse for a deposition.  Failure to abide by discovery can be punishable by fines or imprisonment.  If you cannot afford a private lawyer, legal aid may be able to help you.

4. contact your local member of Congress or United States Senator’s office.  Most elected officials have a staff person who handles Social Security issues.   Often a letter from your Senator can go a long way to breaking through the red tape.

Finally, let me say that I also receive emails from disabled dads who express a great deal of frustration when a child support recovery office seizes their entire lump sum and $250 of their $800 per month disability payment.   We’ll discuss this issue in my next post.

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.

4 out of 10 people who have lost their job remain unemployed for six months or more. This increase in long-term unemployment makes the situation worse. Also, men have been disproportionately laid off due to the recession’s impact on traditionally male-dominated industries like manufacturing and construction. Because nearly 83 percent of custodial parents are women, men are left to pay most child support obligations.

In Highland County, Ohio, requests for support modifications nearly doubled last year as the county’s unemployment rate rose to over 16 percent when a major area employer left. According to Christine Blevins, a supervisor for the county child support enforcement agency, the nature of the requested changes also shifted. While in past years most requests came from custodial parents seeking increases, in 2009 almost all the requests came from noncustodial parents who lost their jobs and ask for payment reductions.

As people whose payments are now based on unemployment will soon lose those benefits, Blevins expects to see another wave of downward adjustments. Payments are also no longer calculated assuming that a parent could at least find a full time, minimum-wage job, as that is no longer realistic in this economy. The situation puts everyone involved in a difficult position, as the non-custodial parents struggle to pay child support and the children in need have a harder time getting the support they need.

I recommend that if your financial situation changes and you can’t meet your support payments, call your attorney or the state child support agency to start the review process. It can take months for a reduction to be granted, especially in communities that have cut back on staffing child support offices. If you cut payments without official approval, it may lead to legal problems and possibly even an arrest.

The legislation, which is being considered by the Judiciary Committee of the state Senate, would withhold casino jackpot winnings from parents who are behind on their child support payments. For example, winners of slot-machine winnings of $1,200 or more would be checked for delinquent child support when they try and cash their prize.

Over 165,000 non-custodial parents each owe more than $2,000 in child support, which equals over $2 billion in child support delinquencies, according to the state Department of Child Services, which is pushing the legislation. In a state where only 58 percent of child support payments are collected, the proposed bill is gaining support.

Stuart Showalter, of Indiana Shared Parenting, does not believe that parents who are having difficulty paying child support should be gambling with their money. Indiana Department of Child Services Spokesperson Ann Housworth believes that the custodial parents that are owed money, and their children, could benefit from any money collected with the proposed legislation.

Obviously, there are two sides to the issue. Indiana casinos are not in favor of the bill and worry that the legislation will cause too much of a delay on casino floors while names of big winners are checked for delinquent child support. According to Mike Smith, President of the Casino Association of Indiana, the delay will customers since casinos are fast-paced environments and winners want to be paid quickly. Smith also argues that because 70% of business comes from out of state, he’s not sure how successful the collections would be.

Regarding an argument that the casinos should not have to do the government’s dirty work to collect child support, an unsympathetic Indiana Sen. Scott Schneider (Indianapolis) says the state created the gambling industry, and casinos need to play by its rules.

I frequently get questions from custodial parents (usually moms) who want to know if there is any way to find out if the non-custodial parent has applied for or is receiving Social Security disability.  The answer to this question is “not directly from Social Security” as privacy laws prevent Social Security employees from revealing this information.

Although SSA will not reveal any information about disability benefits to a third party, that information is a matter of public record if the Social Security recipient files for bankruptcy.  Bankruptcy petitions are publicly accessible documents and can be reviewed by anyone.

Further, under the 2005 changes to the bankruptcy laws, any Chapter 7 debtor who is currently paying child support must reveal that information to his Chapter 7 trustee.  The trustee then sends out a form letter to both the custodial parent and any child support enforcement agency.

Child support debt is not dischargeable in bankruptcy.  However, a bankruptcy petition may serve as a source of information about assets, other sources of income.   You can access bankruptcy petitions and associated paperwork in person by visiting the office of the Clerk of Bankruptcy Court where the debtor filed, or you can access this information electronically using a system called PACER.

hi i am 17 i have been on disability since i was twelve i have a few questions. 1 my parents give me no money from it, nor do they allow me to do extra curricular activites with the money, archery, tae kon do art sculpting etc, is this legal of them? 2 they frequently use the money for the truck payement on a truck that is not neccasary nor running, they dont keep track of the money nor do they keep recepts. is that legal? 3 they wont let me work because it cancels the disability yet they give me no money from it, am i entitled to some money also can i turn them in or set up a confrence or court date to stop the ssi income since i am capable of working desire work and get no benefit from the check??? please i ask for your time soon cause i have to pay for damages and court costtts and cannot accuire work nor income fromm ssi to do so and i will be in comptemt thank you very much

Here are my thoughts: Generally when a benefits are awarded to a minor child, those payments are sent to the that child’s parents or legal guardians who serve as the “representative payee” for that minor child.  The funds should be used for the health, education and welfare of the child.

Social Security rules provide that the representative payee may only use the child’s SSI benefits for the following purposes:

• medical treatment
• education or job skills training

The following expenses may also be paid from the child’s SSI account if they benefit the child and are related to the child’s impairment:

• personal needs or assistance (i.e. in-home nursing care)
• special equipment
• housing modification
• therapy or rehabilitation
• other items that are approved in advance by the local Social Security office

Social Security requires the representative payee to complete an annual report detailing how and where the child’s money was spent.   Based on what my reader writes, payments on a parent’s truck would not be an appropriate expense.

If my reader or anyone who is receiving SSI or Social Security disability benefits through a representative payee and the disabled person suspects that the payee is misusing funds, the claimant should contact his or her local Social Security office and ask that an investigation be commenced.  You can also call Social Security’s national toll-free number of 800-772-1213 for assistance.

Let me stress that reporting suspected misuse of funds by a representative payee is a very serious charge and can lead to fines or even criminal charges if the allegations are correct.  For this reason, payees should keep detailed and accurate records and claimants who have a payee should not make frivolous allegations against their payees.

The accusations set out by my reader are serious and, if true, would likely result in action by SSA against her parents.