How to Get a Child Support Order Modified Because of a Disability
If you can't work due to disability, ask for a child support modification.
When a person becomes disabled and can no longer work, it can become difficult to meet financial obligations. This is no less true for a parent who is responsible for child support payments. Fortunately, if you become disabled and begin to get Social Security benefits, you may be able to modify the amount of child support or alimony you are required to pay.
Child Support Modifications Through the Courts
Child support is governed by state law (though it can be enforced at the federal level). This means that if you want to make changes to the amount of support you are ordered to pay, you must go through the court system that has jurisdiction over your case; this is usually, but not always, the state where your child is living.
You'll need to ask for hearing so that you can argue to have your child support obligation reduced to an amount you think is fair, given the fact that your income has been greatly reduced. Although it varies from state to state, here are some examples of factors that courts usually take into consideration when determining whether child support payments should be modified (either increased or decreased):
- whether one of the parents has lost a job or begun a new one
- whether one of the parents is experiencing a financial hardship (due, for example, to an illness or job loss)
- whether a parent has become disabled
- the relative earnings of both parents
- custody arrangements
- whether extraordinary expenses are being paid on behalf of the child (for example, all medical expenses)
- a change in child care expenses
- changes in household size (for example due to a new marriage), and
- changes in the cost of living.
Your state may use other criteria when deciding whether support should be modified, so be sure to check on this before asking for a modification.
Negotiating a Modification With the Other Parent
If you and your child’s other parent are able to communicate well, you can also arrange a modification between the two of you. If you can come to agreement, make sure to put it in writing and ask a judge to approve the change. While there is nothing that requires you to get the court system involved, without an order signed by a judge, it can be very difficult to enforce any agreement that you and the other parent may come to.
It may be helpful to explain to the other parent why you need the modification; for example, you could provide him or her with a doctor's statement about your condition. You could also offer to provide non-financial support to your child, such as before or after school child-care (if it is appropriate and your are able to). Many times the non-custodial parent has objections to child support modifications because the custodial parent perceives that the non-custodial parent is simply trying to get out of his or her responsibilities to the child.
SSI Versus SSDI
Social Security administers two types of benefits: Supplemental Security Income (SSI), for those with low income, or Social Security Disability Insurance (SSDI), for those who are eligible for Social Security retirement benefits. It is usually much easier for a person getting SSI to be awarded a modification.
When your wages changes to SSI because of a disability, you will no doubt be eligible for a child support modification because your income will be lower. Some states count your SSI check as income (including Florida and Illinois) when recalculating your benefits, while other states (such as Colorado) don't even count your SSI as income when determining child support obligations. This is because it is a means-tested benefit awarded to people with little or no income or other resources.
If you get SSDI, you may be eligible for a modification based on your lower income. SSDI isn't usually treated differently than other income, however (except for the fact that it's not usually taxable). Here are some examples of how several different states treat child support obligations after SSDI benefits are awarded.
- Maryland. Before he became disabled, a non-custodial father of two was required to pay $1,086 a month in child support based on a gross income of $5,000 a month. The custodial mother was earning $2,000 a month. After he became disabled, the father's income (consisting solely of his SSDI payment) dropped to $2,000. The mother's income remained the same. Based on this change, the father's monthly child support obligation was reduced to $518.
- D.C. The mother was the non-custodial parent of two children. Before she became disabled, the mother's income was $5,000 a month and she was ordered to pay $1,086 a month in child support. However, after the mother became disabled, her income, including SSDI benefits, was reduced to $3,500 a month. Her two children also received benefits based on her earnings record, which, under D.C. law, were also counted as income against the mother and included in this total. Based on this reduction in her income, the court modified her child support amount to $447 a month.
- California. The father was the non-custodial parent of one child. Prior to becoming disabled, he earned $4,000 a month and was ordered to pay $675 a month in child support. After becoming disabled, his income was reduced to $1,750 a month, the amount of his SSDI benefit. Based on this reduction in his income, he filed for a modification, which the court granted. His new child support payments were subsequently reduced to $430 a month.
Each state treats SSDI benefits, including your child's benefits, differently. For example, some treat child's dependents benefits as your income, and some don't. For more information on other factors used for determining child support obligations and modifications based on your SSDI, contact your state's child support agency.
Garnishment of Your Disability Payments
If you are awarded SSI, your benefits cannot be garnished to make child support payments.
If you receive SSDI and have been court-ordered to pay child support (or alimony), your benefits can be garnished to satisfy your legal obligation. To avoid this, make sure that you continue to pay the child support until a modification to your child support or spousal support obligation is in effect.
Another reason it is important to keep up with your child support payments is that you could face jail for failure to pay. This is true even if you move out of the state where you were ordered to pay the child support.
Child Benefits in Lieu of Child Support
If you get SSDI, your child may be eligible for Social Security dependents benefits based on your earnings records. You should make sure that either you or the other parent apply for benefits for your child as soon as you are approved for SSDI. In some states, dependent child benefits are credited towards any child support obligations. This means, for example, that if your child support obligation is $400 a month, but your child gets $250 a month in dependent benefits based on your earnings record, you would only be responsible for the $150 gap. In some states, if the child's benefits are greater than your support obligation, you wouldn't be required to pay child support at all. This is true, for example, in the District of Columbia and in the state of Maryland.
Child benefits may also be used to cover any arrearages (past due child support) you may have accrued after you became disabled. Check your state’s laws to see how dependent child benefits and child support are handled, or speak to a family law attorney.