Divorce FAQ's
1. How are social security benefits treated when calculating child support?
It is critically important to differentiate between the different types of social security benefits that are received by the recipient or the child support payor. There are two types of social security benefits that a person can receive. A recipient can either receive Social Security Income (SSI) or Social Security Disability (SSD).
Social Security Income (SSI) is considered to be a means-tested benefit. A government benefit is “means-tested” if the eligibility for the benefit or its amount is determined on the basis of the income or the resources of the recipient. Therefore, SSI benefits are not considered to be income to the recipient for the purposes of determining any child support award.
The other type of social security benefits is called Social Security Disability (SSD). SSD payments consist of the money which an employee has earned during his employment and that which his employer has paid for the employee’s benefit into a common trust fund under the Social Security Act. The purpose of SSD payments is to replace any income that is lost due to the employee’s inability to work after becoming disabled. Therefore, SSD payments are considered as a substitute for earned income and constitute a non-means-tested benefit. SSD payments are considered to be income under the child support guidelines.
Any children of a recipient of SSD benefits may also be eligible to receive additional benefits until they reach the age of eighteen. If a child receives any additional benefits under SSD, then these payments may be deducted from the payor’s child support obligation. If the SSD benefits received by the child are greater than the total amount of the child support obligation, then the child support amount should be zero under the New Jersey Child Support Guidelines. Thus, no child support is due and owing.
2. Can SSI or SSD benefits be garnished to satisfy a child support award?
Only SSD benefits can be garnished to pay for child support. SSI benefits can’t be garnished to pay for child support. Therefore, SSI recipients will not have their monthly disability benefits and past due benefits garnished. The reasoning applied by the federal government is this: since SSI is essentially a public welfare benefit and does not derive from a claimant’s earnings record, SSI benefits cannot be taken for other purposes, just as food stamps and AFDC funds, likewise, cannot be seized.
3. How does the New Jersey Support Guidelines treat social security benefits to calculate child support?
The New Jersey Child Support Guidelines specifically hold that SSI benefits are not considered as income to determine child support. See, Appendix IX-A, 10 (c). The guidelines specifically specify that SSI is a means tested benefit and it is only meant to replace the lost earnings of the parent, and it is paid to in addition to the worker’s benefits. There, any SSI benefits are not considered as income to determine any child support award.
4. If a child receives SSD benefits on the behalf of a disabled father, is the payor entitled to any type of child support credit?
Yes, SSD payments are considered to be non-means tested benefits. The guidelines provide that these benefits must be deducted from the basic support obligation. See, Potter v. Potter, 169 N.J. Super. 140 (App. Div. 1979), De La Ossa v. Da La Ossa, 291 N.J. Super. 558, (App. Div. 1996), Pasternak v. Pasternak, 310 N.J. Super. 483 (1987), Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998).
The deduction is provided because the receipt of these SSD benefits reduces the parent’s contributions toward the child’s living expenses. If the SSD benefits received by the child are greater than the total support obligation, then there is no child support award that is ordered while the child is receiving the benefits. The SSD benefits will continue to be paid by the government agency to the custodial parent in lieu of child support. However, if the total obligation is greater than the benefits received by the child, then the non-custodial parent will have to pay some additional child support.
5. What is the status of New Jersey caselaw with regard to the interplay of SSI benefits and child support?
The major case is Burns v. Edwards, 367 N.J. 29 (App. Div. 2004). In this case, the Appellate Division specifically held that the Supplemental Security Income (SSI) is a means tested federal disabilty program and it should not be included to determine any child support, wherein the recipient has no other source of income and is unable to work. However, the court did note that a child support order can be entered against a disabled payor who receives SSI income wherein the court concludes that the parent is earning income or has the ability to earn additional income. Id. at 50. In summary, SSI benefits are exempt from being garnished from probation, and you can’t have your SSI payments garnished.