Do Social Security auxiliary benefits reduce child support?

By Tomasz Stasiuk, April 11th, 2011 | Auxiliary Benefits | 13 Comments

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.

Biography: 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.

Tomasz Stasiuk is the founding attorney of the Stasiuk Firm - a law firm devoted to exclusively handling Social Security disability cases in Colorado. Contingent fees available.