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 a divorce or family law matter, 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. Our firm practices law in Southern California only and predominately in Orange County. Our firm does not handle social security law or legal matters. If you have specific social security related questions or a case, please consult with an experienced attorney who practices that area of law. Our law practice is limited to divorce and family law cases in California.

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?

  2. David says

    4504(b) has a passage that if the auxiliary benefit was considered in the calculation of the child support, then no credit is given. I figured out what they mean by this. Your existing support order before disability was not calculated using the auxiliary benefit because you weren’t disabled. So, once you became disabled, the credit applies to your existing support order. If you were to modify the existing order because you’re disabled, they would recalculate the new order using the auxiliary benefit and you would not get the credit…..at least this is how I understand it.

  3. David says

    I have a question that really is confusing. If the non custodial parent is waiting for a disability determination from the SSA, and the support is in a zero pay status because the court has been made aware of the situation, and then the SSA determines the non custodial parent is disabled, are the auxiliary benefits the child will receive retroactively applied to all the months the support was in a zero pay status? If so, what happens if the child was 17 during this period and the determination of disability was completed after the child turned 18 and graduated high school? The 18 year old would now be responsible to apply for the benefits. Once this happens, are the benefits still applied retroactively? Does the court not care that the custodial parent can’t apply for those benefits?

    • B. Robert Farzad says

      I have never had to deal with your situation before. I cannot answer your question. Perhaps you should speak with an attorney experienced in social security related matters. We deal with such issues on a very limited basis in family law cases.

      • susan says

        Attorneys in family law are only interested in cookie-cutter cases that won’t strain themselves too much. Disabled individuals have to be their own advocates. Hopefully you will never have to go through what we do on a daily basis…but maybe you should. Shame on all of you.

        • B. Robert Farzad says

          That is a pretty strong reaction to me simply stating I did not understand your question. I represent persons with disabilities. I find them to be kind, reasonable and I go out of my way to help them (often offering discounted rates and flexibility with payments) and also empower them to help themselves. To wish a disability on a person is a pretty harsh thing to do, especially from a person who knows the challenges that come with it. I am hopeful that was not intended how it came out. I do wish you the best Susan and I am sorry I did not understand and could not answer your question. Hopefully, you will find someone that can.

  4. Susan II says

    AB 891 and CA Fam 4504(b) apply to disabled non-custodial parents, but what about disabled *custodial* parents? I’m researching this for my husband in preparation for his child support hearing. Nearly every resource I’ve found–including, “The Effect of Social Security Benefits on Child Support,” by Laura W. Morgan, Family Law Attorney and author of, “Child Support Guidelines: Interpretation and Application, Second Edition”; and, “Disability and Family Relationships: A Look at Legal Financial Consequences,” by Robert E. Rains, Director, Disability Law Clinic; Co-Director, Family Law Clinic; The Penn State Dickinson School of Law, Carlisle–state that derivative SSDI benefits paid on behalf of a disabled *custodial* parent are considered income to that *custodial* parent in calculating child support. DCSS disagrees. They can’t tell me under which law their policy is based; instead, they replied, “That’s our current policy. If you disagree, ask the judge to consider including it as income to the obligee…but I’ve never seen them agree to do this before.” I’ve posted my question to other sites. One attorney actually said derivative payments aren’t considered income to *either* parent. Another misread my question and said I was wrong. So, my question is: why does DCSS exclude from a disabled obligee’s income when calculating guideline child support the derivative payments received by that disabled obligee as his/her children’s representative payee? If derivative payments are not considered income to the disabled parent, then why are they included as income to a disabled obligor in calculating child support pursuant to AB 891 and CA Fam 4504(b)?

    • B. Robert Farzad says

      Any question that starts with “why does DCSS” can cause frustration for the person asking and the one answering. I have had the experience with DCSS where they had their “policy” that in my opinion was contrary to the law and I very much had to take it to Court and lay out why such a policy was irrelevant and did not change the law. I still recall very well when DCSS in Orange County thought it had the power to get involved in hearings regarding establishing spousal support (as opposed to just enforcing it). Regarding your specific question, I would have to look into case law to answer it. If you wish to retain us to look into that, call me at the office.

  5. Michelle G. says

    Can a non custodial father receive a child support credit (his child support amount obligation reduced) for a child receiving a monthly Social Security Disability Insurance benefit that is derived from the custodial disabled mother who is receiving SSDI? In other words, can the father, who is not disabled nor on SSDI, get his child support obligation reduced since the child is receiving SSDI benefit money from the mother’s SSDI case?

    • B. Robert Farzad says

      First, is your case in California? If so, then what you have to figure out is whether the type of social security being received by the disabled custodial parent is considered income to her. Depending on the answer to that, other questions will come up that will lead you to the right answer. We don’t give advice on the comment section of this site.

  6. Donna says

    My daughter’s father who is the non-custodial parent (NCP) has been pressuring me for the last 2-3 months to give my daughter’s social security number to him. The reason for this request is because the NCP says he has applied for social security disability benefits and he wants my daughter to receive what is called the “derivative” benefit. Unlike my daughter and I (the custodial parent [CP]), the NCP resides in California. There is also an existing child support order in California.

    Would it be beneficial for I, the CP, to apply for derivative benefits for my minor daughter at the local Social Security Administration office? Would this derivative benefit be a separate benefit from the child support benefit? Or will the benefits be combined? Also if there is child support arrearage owed, will the derivative benefit be applied to that amount or only to the current child support monthly payment amount? Will the NCP be exempt from paying any or all child support arrearage once he his social security disabilty is approved?

    I just want to ensure that my minor child receives any and all benefits due to her.

    In my opinion, it may be beneficial for the NCP, not my minor child should I apply for the derivative benefit?

    I hope I explained my current child support situation with clarity.

    Sincerely,

    • says

      Many of your questions should be directed to an experienced social security attorney. Regarding the ones that are directly child support related, if you are in Orange County or Los Angeles, contact us. Once we are retained, we can research your issues specifically to figure out the answers. Please understand that we cannot give legal advice over a comment like that here.

      • Donna says

        Mr. Farzad, again thanks for responding to my post comment regarding social security disability benefits for minors with emphasis on child support.

        Can you delete all post comments from Donna. Thank you.

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