Child support is vital to ensuring that a child’s basic needs are met — and it’s often a source of contention in divorce. By law, both parents must financially provide for their children. However, if a parent cannot work because they have become disabled, their ability to satisfy their financial obligations to pay child support can be significantly affected. But even if they receive Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), or other disability benefits, a parent still cannot avoid paying child support.
In California, child support is typically paid by the non-custodial parent to the custodial parent. It is meant to cover basic necessities like food, clothing, and shelter, as well as medical and education expenses. Child support continues until the child has turned 18, or 19 if the child is still attending high school.
There are various factors that the court may look to when determining child support, including the gross income of both parents. The court will also consider:
Most importantly, California courts will always decide child support cases based on what is in the child’s best interests.
If there is already an order in place for one parent to pay child support, a parent who becomes disabled may be able to modify it. Specifically, a downward modification can be requested if there has been a substantial change in financial circumstances. Losing a job or experiencing economic hardship due to disability are just a few of the factors a court may consider when determining whether to grant the modification. However, it’s critical to be aware that a modification cannot be applied retroactively; you will still owe any arrears that have accrued prior to the date of filing the modification.
A modification may be temporary or permanent. For example, if the disability is expected to last a certain number of weeks or months, the court may modify the order until the parent is able to return to their employment and pay child support normally again. If the disability lasts longer, the parent can request a continuation of the modification. When a disability is permanent, the court will take this consideration when granting a modification.
In some cases, it might also be possible for the parents to negotiate a modification, rather than go through the court system. If both parents can reach a settlement regarding the amount of child support to be paid, they can document their agreement in writing and ask the judge to approve it.
There are two types of benefits administered through Social Security: Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI). SSDI is based on work history and whether you earned enough credits to be eligible for the benefits. If you can no longer work because of a disability, SSDI is meant to replace your lost income. The monthly amount you will receive is based on the average covered earnings you have earned over a certain period of time.
In contrast, SSI is a public benefit. It is based solely on income, rather than previous employment. Specifically, to be entitled to SSI benefit payments, you must establish that you have little to no assets or income. Unlike SSDI, SSI does not count as income for the purposes of child support. In addition, payments provided by SSI cannot be garnished to pay child support obligations.
Children of a person receiving SSDI may be eligible for derivative benefits, due to their parent’s disability. These benefits are counted as income for the parent paying child support. Any amount the child would receive is subtracted from the support obligation. The amount that remains is owed as child support.
If you receive SSDI benefits, it’s important to notify the custodial parent. They must apply for derivative SSDI benefits payments for the child directly through the Social Security Administration. A child may be eligible to receive up to 50% of the total SSDI benefits.
Child support can be complicated and it’s essential to have a skilled family law attorney on your side who can help you navigate the legal process. The Law Offices of Rick D. Banks provides dedicated counsel and diligent representation for a wide variety of family law matters and helps clients achieve positive outcomes that are in the best interests of their children.
The Law Offices of Rick D. Banks has been assisting clients throughout Fresno and the surrounding area in their divorce and family law matters for more than 20 years. To schedule a no obligation consultation, call (559)222-4891.