Child Support
Social Security and Child Support

Social Security and Child Support

February 11, 2016

Not All Social Security Benefits Are the Same.

Family Code section 4058 broadly defines income “from whatever source derived.” And in its non-exclusive listing of various types of income, it specifically lists “Social Security benefits.” Nevertheless, the last paragraph of the same section (subsection c), specifically states that “[a]nnual gross income does not include any income… derived from any public assistance program, eligibility for which is based on a determination of need.

Social Security benefits fall under one of three broad categories: (1) retirement benefits (SSA), (2) disability benefits (SSDI), and (3) Supplemental Security Income (SSI). While the 1st two are benefits that an employee earns by having worked 40 quarters during his/her lifetime, SSI benefits are basically welfare for adults. So for you to get SSA benefits you have to have worked the requisite number of quarters and you have to get to your retirement age (somewhere around 65). For you to qualify for SSDI, you have to have worked the requisite number of quarters and became disabled prior to retirement age. And for you to qualify for SSI, you are either of retirement age OR disabled but you lack the requisite number of quarters.

While SSA and SSDI are considered income under section 4058, SSI is specifically excluded. So if an individual’s sole money is SSI and no other income or ability can be proven, they will lack the ability to pay support. On the other hand, with SSA and SSDI, one will run guideline using that as income. With SSA and SSDI, if a parent qualifies for benefits, so will the children. These benefits are called “derivative benefits.” These are benefits “derived” from the parent’s benefits and exist as an additional benefit and are separate from the parent’s benefit. The part that gets tricky is that once the guideline child support is calculated, then under Family Code section 4504(c), the obligor is entitled to be credited for derivative benefits received by the obligee. If the amount of guideline support is more than the derivative benefits, the obligor must pay the balance. If the guideline is less than the derivative benefits, then the balance shall be credited against the obligor’s arrears (if any). Under no circumstances will the obligor be refunded money. (NOTE: The derivative benefit credit is a California law and not necessarily available in every state (e.g. not available in Oregon)).

What happens if the child is receiving SSI due to his/her own disability? In most scenarios the money will go to the custodial parent to take care of that child. However, what if the parents have 50/50 timeshare and comparable income? The problem in that scenario is that Social Security Administration does not allow for two payees. Therefore, whoever beat the other to the Social Security office gets the money. But that is not fair. Can that money be used in the guideline calculation? No. It is not income (especially since it is the child’s money!). The best way I think it should be handled is to run guideline per parties’ actual income and have the court deviate from guideline to equalize the amount of money available in each household.

As you can see though, this is a highly specialized area of law where the presentations of your unique facts are of paramount importance. Please call our office for a free initial consultation. We have offices in RiversideTemeculaAnaheim, and Palm Desert.


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