San Diego Divorce Attorneys Blog
When I talk to clients about what constitutes income available to pay for child support I ask them to imagine an umbrella…a very BIG umbrella. Everything underneath that umbrella is income available to pay child support. In California, this has been codified in Family Code Section 4058, which states;
“The annual gross income of each parent means income from whatever source derived…and includes, but is not limited to, the following:
Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.”
I emphasized “social security benefits” because that is the theme of this blog. Specifically, I want to address how social security benefits affect your income available for support, when those benefits can be garnished for past due support payments, and how dependent social security benefits impact a payor’s child support obligation.
Before I get started here is a quick rundown of the types of social security benefits that matter in child support cases:
Retirement Benefits: This is the traditional benefit one would receive after they retire at age 62 as long as they have met the work requirements for benefits
Disability Benefits: If a party has not reached 62, but has met the work requirements and is considered disabled, they can receive benefits close to full retirement benefits.
Dependents Benefits: Minor children of a retired or disabled worker who qualifies for Social Security retirement or disability benefits, may be entitled to benefits based on the worker’s earning record.
There are other benefits, including survivor benefits and supplemental security income (SSI) that are not relevant to this blog. For more information, go to ssa.gov
As set forth in Family Code 4058 above, regular retirement benefits are ordinary income that is considered in any child support obligation. It is no different than any other income a party might receive. Similarly, disability benefits (also called SSDI) are income for child support purposes since they are given as a substitute for lost income. It is worth noting that SSI is not income for child or spousal support. Why? Benefits are paid based on need and not as a substitute for lost income.
Seems pretty easy so far right? Now is when it gets a little complicated. As mentioned above, minor children of a retired or disabled worker may qualify for dependent benefits. This is a separate payment from the payment received by the worker. In California, any payments received by the children will offset a parent’s child support obligation.
Here is an example: Let’s imagine a worker is receiving SSDI payments based on a disability. Due to his receipt of this benefit, he has a child support obligation of $750. If the minor child receives dependent benefits of $500, that payment will be credited against the $750 obligation, and the payor parent will only be required to pay $250. ($750-$500=$250). The same scenario would occur if the paying parent was receiving retirement benefits instead of disability benefits.
Another issue that comes up often is whether social security benefits can be garnished to pay for an ongoing child support obligation or a past due child support obligation. The answer in California is both yes and no. When it comes to Social Security benefits, retirement and SSDI benefits can be garnished to pay for an ongoing or past due child support obligation since they’re considered part of a parent’s income. However, SSI benefits can’t be garnished since they’re not considered part of a parent’s income.
Social security benefits are generally not complex, but there are times when determining a party’s income for support (including their receipt of social security benefits) can be tough. That is why it is always important that you discuss the specifics of your case with a qualified family law attorney.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child support. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.