Can Child Support Be Taken from Disability?
When someone is obligated to pay child support, an issue that often arises is whether certain disability benefits are impacted by the child support order. This typically occurs when the individual ordered to pay child support is receiving Social Security Disability payments, VA benefits, or other disability insurance benefits.
To be clear, if you are disabled and receiving disability benefits, you are still obligated to pay child support. This means you must adhere to, and comply with, the child support order that has been issued by a California court.
Unable to Afford Child Support Payments
Even though a disability does not halt the collection of child support payments, it is important to note that you retain the right to request a modification of the court-ordered child support payments if you are unable to maintain a basic standard of living and pay for both essential living expenses and child support.
To get the support payments modified, you will need to file a motion with the court to lower the amount of the child support you are responsible for to properly take into account your current income and the amount being requested in child support. It is important to note that if you currently owe unpaid child support, the amount that you owe cannot be modified or adjusted. This holds true even when the amount you have to pay going forward is modified.
Garnishment of Disability Payments
The garnishment of disability payments depends primarily on two key factors: (1) the type of disability benefits you are receiving and (2) whether or not your child support payments are current.
For example, if you are receiving SSI (Supplemental Security Income) disability payments, then you do not need to worry about garnishment. Why? Because SSI payments are issued to people who have a very low income. These payments cannot be garnished for unpaid child support.
On the other hand, if you are receiving SSDI (Social Security Disability Insurance) payments and have unpaid child support, then those benefits may be garnished to fulfill child support obligations.
Overview of Allowance Benefits and Child Support
When you receive disability benefits, your dependents may also be eligible to receive auxiliary benefits under your name. Some people mistakenly believe that the disability payments their children receive will go toward the child support that is owed. This is incorrect. There is no law in place in California stipulating that the family allowance may be used to satisfy any unpaid child support. Any money that your dependents receive from disability benefits is in addition to what you owe in child support. The two are not one in the same.
Veterans Disability Benefits and Child Support
In addition to SSI and SSDI disability benefits, there are various disability benefits available to veterans. This means a military veteran who is going through a divorce, or recently had their divorce finalized, may be wondering whether their VA disability payments will be impacted by a child support order.
Generally, VA benefits may be garnished to cover unpaid child support. It is also worth noting that any disability benefits should be considered when calculating child support or alimony payments during a divorce.
Garnishment of your VA benefits can apply to your military retirement or an equivalent amount to your retirement if you elected for compensation over retirement.
Understanding Apportionment
When veterans are not fulfilling their obligations to their former spouses or to their children, the Veterans Administration (VA) maintains the legal authority to reduce the disability compensation payments using a rule known as “apportionment.” When the VA decides to apportion your disability benefits, the following people are eligible to receive those funds:
- A child in an estranged spouse’s care.
- A dependent parent.
- A child or children who are not living with the veteran, and the veteran is not paying child support.
- An estranged child and spouse.
The VA will also divide a veteran’s benefits if the veteran is in jail or if they are deemed incompetent and are hospitalized without a guardian.
Federal law states that “all or any part” of a veteran’s benefits can be apportioned to cover unpaid child support. However, apportionment is not allowed under the following circumstances:
- the child of the veteran has been legally adopted by another person
- the child to which divided benefits are claimed is under 18 and is in active military service
- the total amount of benefits payable to the veteran does not allow payment of a reasonable amount to anyone else
- the former spouse of the veteran has lived with someone else and publicly is a spouse to a different person and believed the marriage to the veteran was legally ended
Amount of Military Disability Benefits that Can Be Garnished
The Veterans Administration (VA) is responsible for determining the amount of benefits that can be garnished. It will consider the following factors:
- your former spouse’s available income;
- Your former spouse’s current circumstances
- the number of children involved.
Generally, if the VA proceeds with a garnishment, the funds will be divided equally between the number of children.
Impact of 100% VA Disability Rating on Child Support
If you are a veteran who received a 100 percent disability rating, you may be wondering if you are able to simply stop working in order to reduce your child support obligations. Here is the answer – no. Simply because you have a combined disability rating of 100 percent does not necessarily mean that you are unable to maintain any gainful employment. This means that a 100 percent rated veteran who is responsible for paying child support retains the legal obligation to make those payments, depending upon whether they are able to work full-time. This means choosing to stop working will not do anything to reduce your child support obligations.
Have Questions about Your Disability Benefits and the Ability to Have Those Benefits Garnished for Child Support? Contact Castro Law Offices, P.C. Today for Answers
Castro Law Offices, P.C. is a respected and recognized California law firm specializing in child support issues, divorce, child custody, and all other issues concerning domestic relations. The Marin County child support attorneys with Castro Law Offices, P.C. have experience analyzing issues associated with child support orders and the impact they have on the recipients of disability benefits.
Castro Law Offices, P.C. is based in Novato, California, but is ready and able to provide legal services and advice to clients in and around Marin County including Novato, San Rafael, Greenbrae, San Anselmo, Fairfax, Sausalito, Larkspur, West Marin, Ross, Mill Valley and Corte Madera, as well as Sonoma County and Napa County. Contact Castro Law Offices, P.C. today to schedule a confidential consultation.
