Derivative Social Security Benefits and Child Support in California

Frequently asked questions about derivative social security benefits

Questions about Social Security derivative benefits? We wrote this article for the benefit of the disabled and noncustodial parent who is paying child support.

Derivative social security benefits and its impact on California child support requests and orders, whether or not the parents are going through a divorce, is an interesting topic that most married and unmarried parents do not fully understand.

In this article, we are going to address one aspect of this issue and that is help for the disabled and noncustodial parent and what impact derivative benefits can have on that disabled parent’s child support obligation.

When a parent suffers from a disability and that parent starts receiving Social Security disability benefits, there is often a derivative benefit that is paid for the benefit of any minor children.

According to the Social Security Administration, over four million children with a disabled, retired or deceased parent receive this benefit and the total benefits are over two billion dollars each month.

What happens in a situation where the disabled parent is not the custodial parent and has a child support obligation?

First, hopefully the disabled parent’s noncustodial status has not resulted from discrimination against him or her. California Family Courts are not permitted to base child custody decisions solely on a parent’s disability.

Since such a social security benefit is generally considered income for child support purposes, the disabled parent may have a child support obligation to the other “custodial” parent. The less time the disabled parent has with the child or children, the more his or her child support obligation may be. That obligation, even if it is only a few hundred dollars, can present the disabled parent with financial difficulty.

Fortunately, there is good news.

Derivative social security benefits can be paid by the Social Security Administration to the custodial parent. This is separate and apart from the money the disabled and noncustodial parent receives.

The process starts with the disabled parent notifying the custodial parent of his or her receipt of social security benefits. Then, the custodial parent applies for the derivative Social Security benefits directly through the Social Security administration. It’s not a complicated process and generally involves completing forms and having a meeting with the SSA employee assigned to the matter.

Note that the same set of rules applies to child support payments through the Railroad Retirement Act or from the Department of Veteran Affairs although a discussion about that is beyond the scope of this article.

The amount of the derivative Social Security benefits is then credited toward the child support obligation. In other words, the Family Court will typically give a dollar for dollar reduction against the disabled parent’s child support obligation to the custodial parent by the same amount as the derivative Social Security benefits.

As a hypothetical, if the derivative Social Security benefits are $300.00 per month and the set child support obligation is $300.00 or less per month, the child support obligation is zero. This may not have any impact on child support “add ons” such as certain child care or uninsured medical expenses of the children if they exceed the derivative amount and you should speak with an experienced family law attorney about your specific facts and issues.

One oddity in California Family Code 4504(b) is the statement that the Court can give the credit “unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid.” This is not explained and it is a unique situation where the Social Security Derivative benefit is not simply credited. However, if the Court has another means, within the law, to take it into consideration, that is something that can also be explored.

What happens in a situation whereby the custodial parent refuses to apply for the derivative Social Security benefit?

It seems like an unusual question because who in their right mind would refuse to receive such a thing to which they are entitled as a matter of law and is for the benefit of the kids? Unfortunately, emotions sometimes get the better of parents and parents whose emotions drive them may look at the derivative Social Security benefit as more of an advantage to the noncustodial parent by reducing his or her support than an advantage for him or herself in receiving the benefit. In other words, some parents will simply refuse to do anything that will help the other.

The California Family Code has anticipated this problem and states in Family Code 4504(a) that the custodial parent must contact the Social Security Administration within 30 days of receiving notification from the noncustodial parent. The purpose of the contact is to determine eligibility to receive the derivative benefits. Section 4504 states the custodial parent must apply for and cooperate with the SSA if he or she is “potentially” eligible for the derivative payments. The legislature has used this word “potentially” to avoid a custodial parent from claiming a lack of eligibility based on ill motives or a lack of good faith. It essentially takes absurd excuses away from the custodial parent.

If the custodial parent refuses to apply or fails to cooperate, the amount of monthly derivative Social Security benefits he or she would have received is then credited toward the noncustodial and disabled parent’s monthly child support obligation. The noncustodial parent does need to provide evidence of the benefits that would have been received if the custodial parent would have done what the law requires.

This is especially important for the non-custodial parent to understand and enforce in a situation where the custodial parent acts in bad faith and does not apply for the benefits or refuses to follow through, thereby forcing the disabled and noncustodial parent to continue to pay child support out of his or her pocket.

Of course, if the parent’s child support obligation is greater than the derivative benefits then the child support obligation in excess of it will remain absent the Court finding another statutory reason (such as a hardship deduction as one example) to lower the disabled parent’s support.

Issues over derivative Social Security benefits and their impact on child support in a California divorce or paternity case should be resolved outside of Court

Such child support issues should never see the inside of a court room if the parents are dealing with each other in good faith. If the custodial parent forces court intervention and attorney fees are expended, the disabled parent should seriously consider seeking attorney fees and costs against the custodial parent.

We hope that this article was helpful to you and gave you a starting point for understanding the application of derivative Social Security benefits to a situation that involves a disabled and noncustodial parent who is the child support obligor.

If you have any questions regarding your specific factual situation and are ready to retain a lawyer, whether you are the custodial or noncustodial parent, please give us a call at our Orange County family law office. Use the contact us form at the top right of the webpage to get in touch.

For related reading, check out our page on California child custody and visitation laws. It gives you a terrific overview of how family courts decide custody cases and the procedure to get your custody case from start to finish.

Comments

  1. Susan says

    Hello…what if a couple is still married and the wife is receiving disability and derivative benefits?. They get divorced but compute the standard of living including the derivative amount and count it as income.How does the work when determining support or when the child turns 18 and the custodial parent loses derivative support as well as child support totaling almost 40% of her total income? It doesn’t seem right that the total amount is counted when the divorce happens but then it’s considered child support when trying to get more spousal support when the child turns 18. it’s a part of the total income.
    Please, your thoughts?

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