December 19, 2014

Your Lump Sum Payment for Past Due Benefits may be at Risk from Child Support Collection Companies

auxiliary benefitsRecently the Social Security disability lawyer discussion group on LinkedIn contained an interesting thread about child support issues.  Child Support and Social Security disability matters tend to draw a lot of attention from both custodial and non-custodial parents, so I try to write about any developments I note in this area.

The poster on LinkedIn reported that she represented a claimant who was a non-custodial parent who owed several thousand dollars in past due benefits.  The child support collection office (state not named) had apparently contracted with a private collection agency.  The collection agency notified Social Security about the child support lien and the minute that the past due benefit award was issued, it was grabbed by the collection agency.  Child support claims are one of the few types of claims that can garnish SSDI (but not SSI) benefits – see the federal statute here.

One of my colleagues, attorney Erin Schmidt from Cleveland, Ohio added a very salient point to this discussion.  Collection agencies do not account for auxiliary benefits.  Since auxiliary benefits (which can amount to 25% of a disabled claimant’s monthly benefit amount and are paid in addition to the claimant’s benefit), a favorable decision could result in the payment of thousands of dollars to the auxiliary.

If the auxiliary (via the non-custodial parent) is receiving both the auxiliary payment and the entire past due payment for the actual claimant, it is very possible that the custodial parent could end up being overpaid.

Erin further points out that a disabled non-custodial parent could save himself a great deal of aggravation by filing a motion to modify child support payments and request that auxiliary benefits be counted towards his child support obligation and should offset that obligation dollar for dollar.  Do not assume, by the way, that auxiliary benefits automatically reduce the non-custodial parent’s child support obligations – in some states, this offset is given automatically, while in other states no offset is presumed.  The safest course of action is to get a state court order that specifically permits an offset.

Further the non-custodial parent could request that any Social Security disability funds awarded should be paid into the state court registry rather than being released directly to the non-custodial parent.  This could avoid the problem of trying to get overpaid funds back from a custodial parent.

The takeaway from all of this – if you owe child support and are applying for disability, please tell your lawyer.  Taking proactive action could save you a lot of pain in the future as you avoid overpaying a child support recovery office or the custodial parent.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. Dawn Reed says:

    My husband became permanently disabled Nov.2009. All arrears in back support was paid to custodial mother out of his back pay from social security. he is current with his obligation of support, because his daughter receives benefits from his SSD. And that takes care of his obligation of support. Now five years later we receives four letters, three from Child support Enforcement stating he owes about $3,800 in back support. One letter from Family Support stating they will be taking $92.50 out of each monthly check to pay back support. My husband then called Jefferson City Mo. main office of Child Support Enforcement and they stated they made a mistake and over paid his daughters mother $20,000. , and that he must pay the $20,000 back . We have no written letter stating the $20,000 over payment, yet tell my husband he is reliable to pay it or they will be taking my federal tax return for their over payment mistake.

  2. I have a question someone my know. In California, SSDI auxiliary benefits are offset against the non- custodial parent’s support obligation; However, if the court uses the auxiliary benefits in calculating the new support amount, the auxiliary benefits are not offset against the non custodial parent’s support obligation. My question is this: Who decides if the auxiliary benefits are used to calculate the new support order? I’m assuming that when they say that they are using the auxiliary benefit as a means to calculate the new support order, they mean that the benefit is added to the income of the custodial parent. If this is true, who makes that decision? I would not want that to happen….I would want the auxiliary benefit to offset the support order dollar for dollar. Does anyone have an answer to this?

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