DuPage County Divorce Lawyer Blog
Normally, a non-custodial parent’s child support obligation is based upon a percentage of his net income, depending on how many minor children there are (for purposes of this blog, I will be sexist and assume the party paying child support is the father rather than writing “his or her” and “he or she” every time). The statutory guideline child support percentages are laid out clearly in 750 ILCS 5/505. However, what happens if he becomes disabled, and collects social security disability insurance (“SSDI”)? Does he still have to pay? Can his benefits be garnished? What if he owes arrearages which arose prior to receiving SSDI?
As long as a disabled person receiving SSDI has minor children, Social Security will pay what is called a dependent disability allowance. In short, it is an extra benefit each month which is intended to provide for the dependent children. In 1993, the Illinois Supreme Court decided the case of Marriage of Henry, 156 Ill.2d 541, 542, 622 N.E.2d 803 (1993), which set forth the general rule: Payment of a social security dependent disability allowance fulfills a father’s child support obligation for those months during which the allowance was paid.
In other words, as long as the custodial parent receives the dependent disability allowance from SSDI, the non-custodial parent does not have to pay any additional money for current child support. The dependent disability allowance completely satisfies his obligation. Since it is an extra benefit over and above what the disabled father receives for his own SSDI benefit, there is no need for a garnishment. The parents simply must provide the Social Security Administration with sufficient proof to show who the custodial parent is, and where the dependent allowance is to be sent.
Things become a little trickier if the disabled father owed a child support arrearage prior to receiving his disability benefits. Let’s say, hypothetically, he is a “dead bead dad” who should be paying $500 per month in child support, and he hadn’t paid for 20 months prior to being declared disabled and approved for SSDI. In other words, he owed $10,000 in arrearages before collecting SSDI. Now that he’s collecting SSDI, let’s assume that the mother is receiving a dependent allowance of $1,000 per month. Does the father still owe the $10,000 arrearage? If so, how can the mother collect?
The Second District Appellate Court addressed this issue in the case of Pinkston v. Pinkston, 325 Ill.App.3d 212, 757 N.E.2d 977 (2d Dist. 2001). It held that a child’s social security disability dependency benefits cannot be credited against a father’s child support arrearage when that arrearage accrued before the father was declared disabled.
In the Pinkston case, the parties were divorced in 1986, and thereafter, the father accumulated a child support arrearage. In 1999, the Social Security Administration found that the father was disabled and awarded benefits retroactive to March, 1996. The father received a large lump sum award, as did the child for child support owed from March 1996 to July 1999. As is often the case with dependent allowances, the amount of payments the child received in the Pinkston case while the father was disabled actually exceeded the amount the father had been ordered to pay for child support. In that case, there was an “overpayment” of $1,908. The father sought to have the $1,908 applied toward the arrearage, which accrued prior to March, 1996. The trial court ordered that a portion of that $1,908 be applied to the arrearage which accrued prior to the commencement of disability benefits.
On appeal, the Second District reversed the trial court. The court specifically held that “a child’s social security disability benefits cannot be credited against a father’s child support arrearage when that arrearage accrued before the father was declared disabled. The court further held that excess child support payments made to the child from social security disability dependency benefits are a gratuity, and cannot be applied as a credit against a child support arrearage which accrued before the father was declared disabled.
Applied to our hypothetical dead beat dad, even though SSDI is now paying a dependent allowance of $1,000 per month – double the $500 per month child support payment that had been ordered by the court – the father still owes the full $10,000 arrearage. Under Illinois law, he gets no credit for any of the “overpayments” of $500 per month. The mother can still come after him in court to collect the full $10,000. But if he’s disabled and out of work, how can she do it?
While generally speaking, SSDI payments cannot be garnished, there is an exception for child support. Federal law does allow SSDI to be garnished for unpaid child support arrearages. This makes SSDI benefits different from Supplemental Security Income (“SSI”) benefits, which cannot be garnished. See Lozada v. Rivera, 324 Ill.App.3d 476, 755 N.E.2d 548 (2d Dist. 2001) (since SSI payments are intended to provide only a “subsistence allowance” for the recipient, it cannot be garnished).
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