Thursday, March 28, 2013

Issues with Supplemental Income & Social Security Disability in Support Cases


Supplemental Security Income (“SSI”) and Social Security Disability (“SSD”) affect spousal support and child support in different ways. The existence of a disability is the common requirement in order to receive either SSI or SSD. The Social Security Administration defines “disability” as an inability to do substantial activity because of a medically diagnosed physical or mental impairment that can result in death or an impairment that lasts for no less than twelve months. The impairment must make the person unable to do work that they used to be able to do in the past or any other work in the existing economy.

SSI provides disabled indigents with the most basic of resources. It is calculated using any existing income or the resources of the party. SSI benefits are designed to supplement the recipient’s income so that the person receiving it has an income that Congress deems to be the minimum necessary to live on. SSI will only be given to someone who cannot meet his or her basic needs. The amount of SSI will only be sufficient enough to cover that person’s basic needs.

The dependent children of a person receiving SSI benefits are not entitled to receive benefits of their own. SSI benefits are only paid to the qualifying person based upon his or her individual needs. Additionally, courts do not use the SSI benefits a person receives when calculating income for child support. However, a court can enter a support order against a person who receives SSI if the court determines that the parent has the ability to earn additional income. Furthermore, if a child is disabled and receiving SSI on his or her own, the child support amount cannot be reduced by the amount of SSI the disabled child receives.

Spousal support can affect how much a person receives from SSI. Because SSI is based on a person’s income and assets, spousal support is included in the applicant’s resources. Thus, an award of spousal support could make a person ineligible to receive SSI benefits wholly or partially. 

SSD, on the other hand, is not determined by the income and/or resources of the person requesting the benefits. SSD benefits are used to supplement income lost due to the requesting person’s disability and loss of work income. SSD payments are money the requester has earned through employment and to which the employer has contributed under the Social Security Act. 42 U.S.C. §405. If a person is determined to be ineligible for SSD benefits, he or she may still be eligible for SSI. 

When a parent is receiving SSD, a dependent child may also be able to receive SSD benefits without affecting the amount of SSD benefits the parent receives. The amount the child receives will depend on the parent’s work history. SSD benefits are payable if the person satisfies the disability requirement and has sufficient lifetime earnings with contributions into the Social Security fund. Additionally, the dependent child receiving SSD benefits does not have to be in the custody of the parent receiving SSD benefits. Furthermore, any SSD payments made to the dependent child will reduce the amount of the child support obligation before it is apportioned between the parties. 

A parent receiving SSD must include those benefits as gross income for purposes of determining child support in New Jersey. Additionally, Section 207(a) of the Social Security Act states that SSD benefits are attachable for child support purposes. This means that the payments are subject to income withholding or other legal process in order to enforce a child support obligation. The receipt of spousal support does not impact a party’s eligibility for SSD benefits or the amount of SSD benefits a person receives. 

If you have questions about how disability could impact your child or spousal support order, you should contact an attorney. 

Written by Allyson Lutley, former law clerk at The Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

2 comments:

Anonymous said...

Beware, if you are the disabled parent, and you have full custody of your child, your child support will be reduced by the derivative amount of your SSD. In other words, your disability benefits your child, but it also allows the other parent a huge financial break. My disability is benefits HIS obligation.....ridiculous. And what is worse, is that IF we (the parents) were together, the derivative amount would remain unchanged. In my case, it gave a deadbeat a huge break, and breaks my heart that my son has to live in poverty because of a stupid calculation....and because his mother is disabled. In my case, the deadbeats child support was reduced by 900 dollars monthly....so instead of paying 1300 of which he could easily afford with a gross over 6000 monthly, he was ordered to pay 276 bucks!

Anonymous said...

Beware, if you are the disabled parent, and you have full custody of your child, your child support will be reduced by the derivative amount of your SSD. In other words, your disability benefits your child, but it also allows the other parent a huge financial break. My disability benefits HIS obligation.....ridiculous. And what is worse, is that IF we (the parents) were together, the derivative amount would remain unchanged. In my case, it gave a deadbeat a huge break, and breaks my heart that my son has to live in poverty because of a stupid calculation....and because his mother is disabled. In my case, the deadbeats child support was reduced by 900 dollars monthly....so instead of paying 1300 of which he could easily afford with a gross over 6000 monthly, he was ordered to pay 276 bucks!