Do Social Security auxiliary benefits reduce child support?

Several people have asked if the auxiliary Social Security benefits (benefits paid the the spouse and children) of a disabled person receiving Social Security Disability Insurance reduce child support or spousal maintenance payments.

Colorado Springs family law lawyer Yolanda Fennick tackles this topic in today’s guest article:

Child support is paid on behalf of minor children who are entitled to support by their mother and father, despite disability. When courts calculate child support, judges initially look at the gross income of mom and the gross income of dad. When one or both parents are disabled, the judge will want to know the amount and source of the Social Security benefit the parent is receiving to begin the analysis in either a child support or maintenance case. The amount of Social Security received may or may not be used to calculate child support.

C.R.S. Section 14-10-115 (a) (I) says that “gross income” includes income from any source, except as otherwise provided in subparagraph (II)” of the statute. Gross income does NOT include child support received by a parent, benefits from a means-tested public assistance program, e.g. SSI, food stamps and general assistance; income from additional jobs beyond full time/40 per week employment and social security benefits received by a child, or on behalf of a child because of the death or disability of a stepparent.

Said another way, if a parent receives SSI and food stamps, this parent would not have to worry about their benefits being used in the calculation pay child support as this is contrary to the law; however, they would be exposed to paying the child support minimum payment which is currently $50 per month.

When a parent is disabled and receives Social Security Disability benefits (SSDI), this amount will be used to calculate child support. If the custodial parent receives Social Security payments on behalf of the child, the noncustodial parent’s share of the total child support obligation may be reduced by the custodial parents receipt of the child benefit if the needs of the child are reduced by receiving the social security benefit. See IRM of Quintana, 30 P.3d 870 (Colo.App. 2001). If the noncustodial parent receives the Social Security, IRM of Wright, 924 P.2d 1207 (Colo.App.1996) tells us that when the noncustodial obligor (the person who owes child support) qualifies for Social Security benefits, a motion to modify child support must be filed with the Court before any offsets to child support can occur. The noncustodial parents receipt of disability payments will offset his/her child support obligation dollar for dollar. C.R.S. Section 14-10-115(11)(c).

In other words, if the noncustodial parent owes $400 in child support and the child receives $200 in disability payments, the noncustodial parent’s obligation would be reduced by the $200 received by the child and would owe $200 in child support.

Determining maintenance in divorce cases is another area where confusion can exist. Again, the judge will look to the amount and source of income each spouse has.

When a husband or wife receives SSI, there would likely be no payment of maintenance by the recipient of that benefit. If the SSI recipient is the lesser income earner, the issue that arises is whether receiving maintenance from the paying spouse outweighs the benefits of receiving SSI, which also includes the receipt of Medicaid. When a husband or wife receives SSDI ( Social Security Disability Insurance), the amount received will be used in the maintenance analysis as income because receipt of those funds is an ‘economic circumstance’. In maintenance cases, the judge has a list of factors found in Colorado law to consider in the analysis of this often complex issue. C.R.S. 14-10-114.

As each case is different, Social Security payments in the instances of child support and maintenance are fraught with exceptions. Talk to an attorney who has expertise the area of family law and who can fully advise you based upon your specific circumstances.

Yolanda Fennick Colorado Family Law LawyerBiography: Yolanda M. Fennick is a solo practitioner and has been practicing exclusively family law in Colorado for 15 years. She is currently the President of the El Paso County Bar Association’s Family Law Section. Yolanda Fennick can be reached at (719) 219-6250.

 

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Disclaimer: This is NOT legal advice. This site provides general information about Social Security disability cases in Colorado. To discuss your particular circumstances, please contact a lawyer in your area. Please review the full disclaimer .

About Tomasz Stasiuk

Tomasz Stasiuk is a Colorado Springs Social Security disability lawyer and the founding attorney of the Stasiuk Firm - a law firm specializing in Social Security disability cases in Colorado. Follow Tomasz Stasiuk on Google and Twitter

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  • jaime

    How can a a person lie to Texas child support and get away with it , not to mention she calls to any Texas,local,county,state and federal and has all my info. she has my son to act as myself and gets any and all information on me .may i would not be so mad if i really owed her money but she had me on child support  and i lived with her and this started fro a one week split-up and in that one week she filed child support and i went with her to file i was 17 she was 21 anyway they told us to go to the other room and talk about it and so if we can make things work , well we did and we made up ,,,,like if i really knew much about life ,,but now the children are all grown and married with their own children,well the point i want to make is that she never took child support off and now she is getting all my social security . Plz need held .

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  • http://www.Planet10Tech.com TomaszStasiuk

    I can see you are quite upset by all this. However, the only thing I can say is to encourage you to contact a lawyer in your state. A family law attorney should be able to help you figure out what options are available to you at this point. 

  • Anonymous

    In 2009 my divorce was settled with my ex. We have one child and he was ordered to pay me $541.00 he also was medically retired from the Army receiving social security and military benefits. My daughter began receiving SSI $629 a month.  I live here and he lives out of state and has recently married, and now has decided that he will only pay me $325 every other month in child support because he states social security is all I am entitled to for benefits for our daughter and he is being nice by giving me $325.
     
    I am contemplating opening up a child support case but not sure if this is true or if  it is even worth my time … and if I do will they pay me back for the months he has not paid in full ?

  • Anonymous

    In 2009 my divorce was settled with my ex. We have one child and he was ordered to pay me $541.00 he also was medically retired from the Army receiving social security and military benefits. My daughter began receiving SSI $629 a month.  I live here and he lives out of state and has recently married, and now has decided that he will only pay me $325 every other month in child support because he states social security is all I am entitled to for benefits for our daughter and he is being nice by giving me $325.
     
    I am contemplating opening up a child support case but not sure if this is true or if  it is even worth my time … and if I do will they pay me back for the months he has not paid in full ?

  • K8e1

    Im in a similar situation. My ex thinks that the ss auxillary check that my son gets based on my ssdi EXEMPTS him from child support. Boy is he wrong.

  • CBD

    What if father AND stepfather is on SSDI but child lives with mother and stepfather. Child receives auxiliary benefits from stepfather. Is father exempt from paying child support or can he also receive auxiliary benefits for the child?

  • http://www.Planet10Tech.com TomaszStasiuk

    Child support is a matter of state law. You need to contact a family law attorney in your area to help figure out how this would work.

  • Saa

    I have a question…My ex was awarded soc sec dis, our daughter is also entitled to it. Does he still have to pay child support, child support is 543.00 her dis will be 897.00. He does not have insurance in her any longer, per our divorce decree he has to have that. Our daughter was diagnosed ADHD/ ODD. Do I have tom turn around and send him back his child support?

  • Lindzenheimer

    My ex(wife) recently started to receive ssdi and as a result I have received 3 payments so far due to her child support arrears, I was awarded full custody several years ago.  Our children are now both over the age of 18 and she is telling the children that she is going to try and get for them the auxiliary lump sum payment for them directly and that they can pay me what she  owes in back support and arrears, instead of the garnishment of her ssdi.  We are both located in Florida and I was also just notified of a hearing to determine arrears and repayment schedule in a child support hearing. 

    Is this legal and is this something I have to agree to in order for her to do this? I am not going to voluntarily agree to anything since this is the first time I have received any monetary support from her in many years.In fact I had pretty much given up hope of ever collecting any thing from her, I had taking her back to court, with my lawyer and several times she was told she was in contempt of court and ordered to begin paying her child support, yet nothing changed. I accrued over 10K in legal fees, AFTER my divorce was final and due simply to trying to collect support with no closure or results. 

  • bebe

    If I just got approved SSDI and not divorced yet will my wife get benefits while married to me if she is in her 3os and a employed nurse?

  • http://www.stasiukfirm.com/ TomaszStasiuk

    A Spouse, or ex-spouse, may be entitled to auxiliary benefits if he or she is 62 years old or has in their care a child who is either under 16 years old or disabled. See http://www.socialsecurityinsider.com/2010/01/what-are-social-security-auxiliary-benefits/ 

    For specific information about auxiliary benefits in your case, I encourage you to contact Social Security

  • http://www.stasiukfirm.com/ TomaszStasiuk

    As noted in the article, “The amount of Social Security received may or may not be used to calculate child support.” I encourage you to talk to a lawyer in your area.

  • mamaw

    have you been able to get both

  • itsmehurricaneb@hotmail.com

    i am disabled and a single mom. my child recieves an auxillary ss check based off my benefits. This did have a bearing on child support in the means of it all mine and my childs check go towards my gross income on figuring what the child support amount would be. And it made my income more than her fathers so it was figured in fl the cost of one childs monthly support needed is 720 a month with my ss it made me liable for 60 percent of 720 and him for 40 percent so he was ordered to pay me 288 per month. and he is SUPPOSE to carry health ins. on her too. He only had ins for 1 month on her and the state has not helped with this!! ( I feel this is too low!!) but to answer your question YOU SHOULD GET CHILD SUPPORT TOO unless he is on SSI ssi and ssd and ssa are all different

  • http://www.facebook.com/profile.php?id=1102851195 Michelle Mills

    My kids father is $38,721.17 behind in his child support.He recently recieved disability and our girls get 270.plus from the SSI he paid into I also collect a court ordered 524.60.He now wants a modification to lower his child support. He only receives $45 less then he did when he worked.Does he stand a chance at wining in court??

  • D Kidd

    I have a question . If the child is going to receive back payments off of the non-custodial’s SSDI record, and the auxiliary benefits are not applied for, how does the judge credit the payments to the child? In California, I stopped the support payments while my SSDI case was being determined. I won my SSDI case and my daughter will receive a lumpsum when she applies. If she doesn’t apply, what does the judge do about this? In California, credit is given against child support by the child receiving auxiliary benefits, but if she doesn’t apply for them, what happens? Why she doesn’t apply is another story, but that is what’s happening.