Can a Child Receive SSD & Child Support?

By Beverly Bird

Divorce is difficult enough when parents are hale and healthy. When one is disabled, this can potentially affect decisions and rulings ranging from custody to support. If your spouse receives Social Security Disability Insurance and your child is entitled to derivative benefits based on his eligibility, it can affect the amount of child support he will have to pay when your divorce is final. If your child is disabled, she would receive Supplemental Security Income or SSI, not SSDI. Different rules apply to SSI.

Noncustodial Parent’s Income

If you’re the custodial parent and your spouse is disabled, his SSDI benefits represent income to him for purposes of calculating child support. SSDI is not a need-based benefit determined by financial resources. It does not require that your spouse have limited or no assets or unearned income. If he does have other sources of income, support is based on this as well. He must have worked at least five of the last 10 years and be disabled for SSDI eligibility.

Derivative Benefits

When a child receives SSDI derivative benefits from her noncustodial parent, these funds are also counted as income to that parent for purposes of calculating child support. If these payments to your child were ignored, your spouse’s support obligation would increase to more than he actually owes. For example, if your spouse earns $50,000 a year from all sources, and if the court orders him to pay 20 percent of that income in child support but $10,000 already goes directly to his child in the form of SSDI derivative benefits, she would actually receive $20,000. She would receive 20 percent of $50,000 or $10,000, plus the $10,000 she receives directly, which is twice the amount of the support obligation.

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Support Calculations and SSDI

Most states adjust for SSDI derivative benefits made directly to the child by subtracting them from the noncustodial parent’s support obligation. A support obligation of $10,000 a year works out to roughly $833 a month. If your child is already receiving $10,000 a year in derivative benefits – about $833 a month – your spouse would not pay child support because your child is already receiving the correct amount of support from the derivative benefits. If the support obligation were $1,000 a month and her derivative benefits came to $500 a month, he would pay $500 in support – the difference. Some states leave this calculation to the discretion of the judge, however. For example, California won’t subtract a child’s SSDI benefits from her parent’s support obligation if they were already taken into consideration when calculations were made. If they were already subtracted from his income and support was calculated on the balance, the payments would not again be subtracted from his obligation. Wisconsin courts can override the general rule regarding SSDI derivative benefits under extraordinary circumstances, such as if a child has special needs that require additional support.

Payment of Benefits

The Social Security Administration is authorized to pay derivative benefits directly to the custodial parent when parents divorce. It’s a relatively simple process – you can visit your nearest SSA office for the necessary paperwork and to meet with an employee who will walk you through the steps to apply. Some states’ family law codes include deadlines by which you must apply, because of the effect these benefits have on child support. In California, you have 30 days to apply after you learn that your ex is collecting SSDI. If he’s already collecting benefits at the time of your divorce, you may also have a limited period of time to divert the derivative benefits to your child, so check with a lawyer to find out what the rules are in your jurisdiction.

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Social Security Benefits in Lieu of Child Support Payments
 

References

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