Social Security Benefits and Child Support

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 received by a child support recipient or payor. There are two types of Social Security benefits that a person can 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 a child support award.

Social Security Disability (SSD) payments consist of the money which an employee has earned during his employment and which was paid for the employee’s benefit into a common trust fund under the Social Security Act. The purpose of SSD payments is to replace 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 therefore considered to be income under the child support guidelines.

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 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 recipients will not have their monthly benefits and past due benefits garnished. The reasoning applied by the federal government is that 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 Child Support Guidelines treat Social Security benefits in calculating child support?

The guidelines specify that SSI is a means-tested benefit and it is only meant to replace the lost earnings of the parent, paid in addition to the worker’s benefits. Therefore, SSI benefits are not considered as income in determining child support awards. See Appendix IX-A, 10 (c). 

4. If a child receives SSD benefits on 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. De 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 SSD benefits reduces the parents’ contributions toward the child’s living expenses. If the SSD benefits received by the child are greater than the total support obligation, then no child support will be ordered while the child is receiving the benefits. The SSD benefits will continue to be paid by the government to the custodial parent in lieu of child support. However, if the total obligation is greater than the benefits received by the child, the non-custodial parent will have to pay some additional child support.

5. What is the status of New Jersey case law 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 Supplemental Security Income (SSI) is a means-tested federal disability program and it should not be included to determine child support where 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 where 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 SSI payments can’t be garnished.