DuPage County Divorce Lawyer Blog
There are two types of social security benefits, namely SSI (supplemental security income), and SSDI (social security disability income). SSI is available to low-income individuals who most likely do not have a job or have not worked enough to qualify for SSDI. To qualify for SSI, you must have less than $2,000 in assets and a very limited income. On the other hand, SSDI is available to employees ages 65 or younger who have accumulated a certain amount of work credits and have paid Social Security taxes. If a party receives SSDI income, that party’s spouse and children are entitled to benefits which are called “auxiliary benefits” or “dependent benefits.” This is additional income every month to cover the SSDI recipient’s dependents.
Can social security benefits be garnished? The short answer is that SSI income cannot be garnished, because it is exempt from the IRS for child support. On the other hand, SSDI dependent benefits can fulfill and satisfy a payor’s child support obligation during the period of time that the recipient is receiving SSDI income and dependent benefits. A parent who receives SSI income cannot be ordered to pay child support on that income pursuant to the case of Lozada vs. Rivera. In that case, the court determined that Congress’ intent in providing SSI to low-income individuals was to satisfy that recipient’s minimum needs only. To order the recipient of SSI income to then pay child support and reduce their income even more would be greatly against public policy. The Court also determined that it would put a huge burden on the recipient of SSI income to live far below the minimum standard of living decided by Congress.
Conversely, SSDI income and dependent benefits can satisfy a payor’s child support obligation. The issue is addressed in In Re Marriage of Henry, where the court determined that the SSDI dependent benefit could constitute and fulfill an obligor’s child support obligation. This is due to the fact that the right to SSDI benefits is earned through work credits, and the dependent benefit received is not merely gratuitous (as the court distinguished from SSI income). The Court also determined that the entire purpose of the SSDI dependent benefits is to support minor children and other dependents, and therefore, the dependent benefit satisfies the obligor’s child support obligation. The Court’s decision in Henry was then codified into the Illinois Marriage and Dissolution of Marriage Act. Pursuant to 750 ILCS 5/505, the statute now provides that “gross income” includes social security disability income received by an obligor parent for purposes of calculating child support. The SSDI benefit is not “garnished” in the same way that child support is deducted from a person’s wages. The person receiving SSDI simply directs the Social Security Administration where to direct the dependent benefit (the payor’s children).
However, it is very important to remember that if you have a current child support obligation in place, and you apply for and begin receiving SSDI and SSDI dependent benefits, your child support obligation does not just automatically change. You still must petition the Court to modify your child support obligation based on the substantial change in your financial circumstances. You could be liable for back child support and arrears with interest if you do not meet your court ordered child support. Once you petition the court for a modification of your child support, your (lowered) child support obligation (dependent benefit received) will be retroactive to the date that you filed your Petition to Modify Child Support.
The same thing goes for any child support arrearages that you may have prior to receiving the SSDI income. If you failed to make child support payments while you were gainfully employed, those arrearages do not go away once you begin receiving SSDI and dependent benefits. You are still be responsible for paying back those child support arrearages and the 9% annual interest. If you have a child support arrearage, the recipient spouse may bring a Petition for Rule to Show Cause and for Adjudication of Indirect Civil Contempt before the court and ask that you be held in contempt for the non-payment of support. If the court finds that your failure to pay support was a willful and contumacious violation of a court order, you could be sent to jail until you pay a “purge” (the child support arrearage). The court also has the ability to suspend your driving privileges and suspend the usage of your passport. Make sure this doesn’t happen to you!
If you have questions regarding social security income and child support or find yourself in a similar situation, please contact one of our experienced attorneys for a free 30-minute consultation.