Wednesday, December 3, 2008

Terminating a Child Support Order Because of Social Security Benefits?

Is it possible to receive SSDI (Social Security Disability Insurance) or SSI and still pay child support?

About Social Security Disability benefits and child support, take a look at my Indiana Child Support, Social Security Benefits, and the Indiana Court of Appeals.

Here is what the Child Support Guidelines say about including Social Security money:


A. Definition of Weekly Gross Income.

1. Definition of Weekly Gross Income (Line 1 of Worksheet). For purposes of these Guidelines, "weekly gross income" is defined as actual weekly gross income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon "in‑kind" benefits. Weekly gross income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen's compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance received from other marriages. Specifically excluded are benefits from means‑tested public assistance programs, including, but not limited to Temporary Aid To Needy Families (TANF), Supplemental Security Income, and Food Stamps.


(See Commentary to Support Guideline 3E and Support Guideline 6)

Effect of Social Security Benefits Received By Child Because Of Parent’s Disability. Social Security benefits received by a child because of the custodial parent’s disability do not reduce the child support obligation of the noncustodial parent. However, Social Security benefits received by a child because of the noncustodial parent’s disability may be applied on a case by case basis as a credit to the noncustodial parent’s child support obligation.

SSI is a little different. The federal government calculates SSI at the federal poverty level. Indiana case law says that contempt cannot be used when paying the child support will drive the payor into poverty. Indiana law clearly comes down on the side of parental obligation to pay support unless parental rights are terminated.

Recently, I had an attorney file a petition to terminate child support because the other party was receiving SSI as her only income. First time to see this kind of petition during my twenty-one years of practicing law.

I argued that Indiana law did not allow for the termination of a child support obligation in this case. Opposing counsel argued that the cases where enforcement was not allowed for poverty reasons meant that the obligation ended also. The trial judge granted opposing party a modification of child support but did not terminate it.

A difference exists between the child support payor having an obligation to pay and the child support payees' ability to enforce the order. The court terminating a child support obligation for the reasons in this case ought not happen. If the opposing party gets a job or wins the lottery, she will have to pay the child support arrears. Until then, she has an obligation for which my client cannot collect.

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