I live in CA. I am in the process of finalizing our divorce. Since we were married 19 years I'll probably have to pay spousal support at least until I retire, and since our daughter is severely disabled (Rett Syndrome) I'll probably have to pay child support indefinitely as well.
When my daughter turns 18 she will be eligible for Social Security based on her disability (SSDI?). I have been told that since this is not based at all on my employment that it is considered my daughter's income and therefore is _not_ considered in the calculation of the child support that I should pay to her mother.
I know that everything is not always fair, but this seems somewhat absurd. My daughter cannot walk, talk, read or write. This payment will go directly to her mother.
Is it correct that this will not affect the amount of child support that I am required to pay?
I have already included the advice that I have received to date. Other web searches have not produced an answer to this somewhat specific question.
your question is an excellent one and one that has been in debate for quite some time.
let me provide you with the decision from the Court of Appeals in Gaby vs. Gaby:
The Court of Appeals pointed out that granting the non-custodial parent a credit might, in many cases, effectively abolish the child support obligation of that parent who has regular and consistent income and at the same time disproportionately reduce the resources available to the children. And a credit for such payment would run afoul of the goal of protecting children ''as much as possible from the overall decline in living standards that results from parent's maintaining two households.''
The Court stated that absent such an explicit direction by the Legislature in its child support guidelines it would decline to reduce the resources ultimately available to children by treating Social Security disability payments as income of the disabled parent or as a credit against the parent's support obligation, as has been done by other states such as California and Utah.
So in others words, the court will refuse to reduce the child support payment based on SSI for a child. This would reduce the resources available to the child and relieve the non-custodial parent of their obligation to pay child support.
My advise to you is that if you feel that your payment is unfair based on your financial circumstances you can fight back with that argument but it does not look like you would win with the argument based on SSI payments to mother in care of the child.
Thank you I hope this information helps you make a good decision for your future.
To be perfectly honest, I had hoped for a reply from a lawyer. I have found that even family law lawyers are often not very aware of the differences of dealing with a special needs child...
More specifically, I have found that most states actually do count a child's SSD benefit toward the non-custodial parent's obligation when the benefit is paid due to that parent's disability, as the intention of that benefit is to replace that parent's income. The problem is that I am talking about disability benefits being paid for the adult child's disability.
I am also concerned about "... other states such as California and Utah." I'm in CA. Is that why this case turned up in your search? (but not really a match) Family law is very state-specific.
I don't think that this really addresses my question.
So now my question has been reclassified under Finance? That doesn't seem correct. Is there something that I can do about that?
Hi, no, you are in Family Law and I am a Family Law Lawyer and practice in California. I think that I see what part of the problem is - you say your child will be getting SSDI? Or do you mean SSI? Pam Priest39983.1210091782
I'm not exactly sure --
Whatever it is that she will draw as a disabled adult. Or should I say handicapped? I know as a child it's typically referred to as 'special needs,' but I'm not sure of the terminology for adults.
At any rate she will surely qualify as permanently disabled.39983.733056331
Okay - I think that's part of the problem. I do think that it's hard to get an answer about this because it's such an unusual question. I'm wondering whether you tried the Family Law Facilitator - this is the kind of thing where they would be more knowledgable than many private attorneys, because they encounter it more often. In any case, it's clear that you understand the distinction between derivative benefits (the money that would be paid as a result of a parent's disability) and the money that the child receives as a result of his own disability. I am assuming that what your daughter will be receiving is SSI, and it's akin to welfare for the child. This is why you have been told that you would not be credited for the amount that is paid out for the child; it's because the amount is usually so small that it's really not sufficient to support the child, so the noncustodial parent still has to pay child support in full without receiving a credit.
I know all of the money will go directly to the mother, but in theory she is putting a roof over the child's head (that's part of supporting the child) and feeding her, clothing her, etc....and that's what the money you pay is going for.
Sorry - I know this is not what you want to hear and I don't blame you. You could certainly still go to court and ask the judge to give you a credit for the amount she receives from SSI - what do you have to lose? Some judges might do it - they might not get the distinction between the derivative benefits and SSI. It's probably worth a shot, but I wouldn't be too optimistic. Again, I'm really sorry.
17 years of experience as a family law attorney, including 2 1/2 years as a family law facilitator
Thanks for the info. It's good to have an answer that refers specifically to the situation that I am about to encounter -- and I shall definitely accept this answer.
I would like to request some clarification. The monies could really be considered 3 ways:
a) attributed to the non-custodial parent. there's really no reason for this -- but of course I would not mind...
b) attributed to the adult child. which would really make sense if she had 'personal' needs in addition to room and board. in this case there is no way for her to really effect any such desires.
c) attributed to the custodial parent.
situation (a) always seemed unlikely.
situation (b) seems like it might be relevant in some situations. but even if the adult child contributed some portion to room and board, wouldn't that have to be considered as a form of income to the custodial parent?
situation (c) seems like the factual situation here. in this case the monies can only be under the complete control of the custodial parent. all I'm suggesting is that this should be considered as income to the parent receiving it.
the only other possibility that I can see (naively?) is that it could be split between the parents in the ratio of their time caring for the child.
Finally, thanks for your suggestion about a family law facilitator. I'm surprised that I had not heard of this before.
If you can tell me a little bit more I will gladly accept again.
I am shocked that you have not heard of the Family Law Facilitator - what county are you in? They need to do more outreach! You can find your local Facilitator here: <a href="http://www.courtinfo.ca.gov/selfhelp/lowcost/flf.htmr" target="_blank">http://www.courtinfo.ca.gov/selfhelp/lowcost/flf.htmr</a>
<br />DCSS also should be able to answer unusual support related questions, but the problem is that it's very difficult to reach an actual attorney - you have to wade through caseworkers, who may not be able to answer, or worse, sometimes answer incorrectly.
<br />Okay. I'm trying to understand what you mean by "attribute" to. Also, when you say "monies", do you mean the money from SSI, or the money you pay, or both?Pam Priest39983.8081662037
Santa Clara County -- I'm already at http://www.scselfservice.org/fam/clinic.htm, so I'm with you there!
I'm speaking about the child support calculation. My (naive?) understanding is that the amount of child support will always be calculated by 'the program' (I forget the name), and that the only way to effect changes in the output is by changing the inputs, which consist mostly of the info from form FL-150.
So I'm suggesting that this amount be counted to the custodial parent's income. Does this make sense, or am I barking up the wrong tree? I know that the law tries to be somewhat fair, but it doesn't always work out that way...
Also, could you make a guesstimate of the amount of this type of payment? I'm assuming this is enough to make some difference. You can be as precise or imprecise as you need to be...
I guess I should say California State "guideline" child support.
This is always accepted as the amount owed?
Sorry, I still didn't define "monies."
I was referring to the child's SSI payment that will presumably flow directly to the custodial parent. Will/can that amount then be considered as income to that parent for the purposes of calculating the the child support to be paid?
I think our posts are crossing....anyway, the SSI payments would not be considered income to the custodial parent because it's like welfare for your daughter. Yes, it will help to support her and I understand why it seems unfair, but for whatever reason it does not affect the Dissomaster calculation (or rather, it does, but it has no effect on the outcome).Pam Priest39983.8696152778
Well, of course you would think that the program would determine child support - I bet 99% of lawyers would think the same thing. It's not naive in the slightest! (It's the Dissomaster program - or a newer one, X-spouse - they are pretty much identical). And you would be absolutely right in the vast majority of cases. But - yours is obviously not in the majority.
The dissomaster does not ALWAYS apply once a child is over 18, because the once the child is an adult, the court no longer has the jursisdiction to award custody or visitation - the timeshare would not apply to an adult (even a severely disabled one). And of course in most cases there would not BE any child support once a child has reached the age of 18.
However, it is not mandatory that the Dissomaster be used for a disabled adult (it is mandatory for children under 18). And yes, you are right, when the dissomaster IS used, the court mostly looks at the info that is on the Income and Expense Declaration and whatever numbers you put into the Dissomaster determines what number it spits out for guideline child support.
The judge has the discretion to either use the Dissomaster or, instead, to look at the actual expenses of the child. I have included the code section at the very bottom - it says that the judge uses the guideline (which means the Dissomaster), but that the court can depart from it, which essentially means that the use of the Dissomaster is not mandatory. I decided to check with some colleagues and most had never had this issue come up, but one, who is a certified specialist, said that he's had the issue 3 times in the last 4 years and not once did the judge use the Dissomaster. However, this was in Alameda county, not Santa Clara - and as I said, it's discretionary.
Please note that I have been making some assumptions about your case; I am assuming that your daughter is living with her mother (your ex). If this is not the case and your daughter is living in a care facility, the dissomaster would not be used.
I am also assuming (or maybe you actually stated this) that you do not know how much your daughter will be receiving. Finally, I am assuming, just based on my experience with "the system", that what she will receive is SSI, and will not be a lot of money.
So please correct me if any of those assumptions are wrong.
Okay - so let's go back to the Dissomaster. I now think I understand the confusion; the money that you pay in support is not considered income to the custodial parent. The money that goes into the slot for her income is only income that she receives from working - or another source that is not you. This is a hard and fast rule when using the dissomaster. So...if you want me to use the Dissomaster to do a support calculation for you, I'd be happy to - it would only take a minute. And there is a slot in there (you have to know how to find it, though) for just this situation; SSI. But because I can do this with my eyes closed, I know what happens when you put in the SSI; nothing. It has no effect on the number that the dissomaster spits out - because, of course, it's regarded as welfare and therefore just does not affect how much support you would pay.
If you'd like me to do a calculation, send me your gross income, the mother's gross income and the timeshare, if it applies (I'm assuming that it does not - that she is with her mother 100% of the time, but of course I could (gasp) be wrong).
Most likely the best way to approach this is to run the Dissomaster and find out what it spits out for child support and then look at your wife's Income and Expense Declaration and figure out what she says the expenses of the child are - then take the amount that your daugter will receive and deduct it from the expenses and compare that with what the Dissomaster dictates - see which is less and offer that amount as support to settle the case.
And - here is the law dealing with this issue (some of it does not apply, like the interstate stuff, but scroll down to the 2nd paragraph from the end bottom and there's a section that does talk about how support is calculated)
Adult Indigent Children
Both parents of a child have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.13 Children for whom support is authorized under Family Code Section 3910 are generally referred to as ''adult indigent'' children. Parents may not, by agreement, abrogate their statutory duty to support an adult indigent child or attempt to divest the court of jurisdiction to order support for an adult indigent child14 (see § 40.04).
This continuing duty of support runs contrary to the general rule that a parent's support obligation terminates when the child attains majority or is otherwise emancipated.15 It is primarily intended to protect the public from the financial burden of supporting an individual whose parents are able to provide the requisite support.16 It does not provide for a right of action by a provider of services against the parents of an adult child.17 Nor does it provide for any liability to a public agency for reimbursement of benefits provided to the indigent child.18
The language ''incapacitated from earning a living and without sufficient means'' comes from former Civil Code Section 242(d), which defined ''child'' under the former Uniform Civil Liability for Support Act as including such a son or daughter of whatever age. This language has been held to be synonymous with that of another former statute, Civil Code Section 206, which imposed a duty of support on a parent of ''any person in need who is unable to maintain himself by work.''19 This language requires the child to demonstrate an inability to be self supporting because of a mental or physical disability or proof of inability to find work because of factors beyond the child's control.20 Thus, a child's indigence alone does not give rise to a parent's obligation of support under Family Code Section 3910.21
Under this limitation, adult indigent children may include the developmentally disabled,22 the emotionally disabled,23 and the mentally ill.24 They do not include incarcerated adult children25 or adult children whose resources are otherwise insufficient to allow them to attend college.26
In the interstate enforcement area, one court of appeal held that the (now former) Uniform Reciprocal Enforcement of Support Act (URESA)27 required application of the law of the state in which the alleged obligor was present,27.1 even if the obligee resided in another state. Thus, it held that a California resident was required to support his adult indigent daughter residing in New York, which also had adopted URESA.27.2 For discussion of current interstate enforcement law under the Uniform Interstate Family Support Act (UIFSA), see Chapter 151.27.3
Support for an adult indigent child may be ordered in a proceeding for dissolution of marriage.27.4 The duty to support adult indigent children may also be enforced in an action under Family Code Section 4000 (see § 40.41). For a form of complaint to obtain support for an adult indigent child, see § 40.101.
In determining the amount of support a parent is required to pay for an adult indigent child under Family Code Section 3910, a judge must use the statewide uniform child support guideline set forth in Family Code Section 4050 et seq. (see § 41.05, et seq.). To the extent that the guideline embodies assumptions that are true of minor children, but not of adult disabled children, the guideline permits a trial court to adapt or depart from the basic child support formula in accordance with the ''special circumstances'' of the adult disabled child or the child's parents.27.5
Insurance that covers dependent children up to a limiting age must allow continuation of coverage beyond that age for seriously disabled children who meet certain criteria.27.6 A support order must require a parent who provides health insurance coverage for a supported child to seek continuation of coverage if the child meets these criteria and the continuation coverage is available at no cost or at a reasonable cost.27.7
All of the assumptions that you mention are correct, except for the fact that my visitation is currently 15%.
1. I'm curious what you mean by "timeshare would not apply to an adult" is there a box for that on the dissomaster? or it goes 50/50, or ... ?
I can't really supply enough numbers to do a dissomaster calculation (esp. her income), but thanks for the offer.
2. You state "that what she will receive is SSI, and will not be a lot of money." Can you make any estimate of the dollar amount? Or even a range? As I stated, she is completely disabled WRT any possibility of self-support.
3. Lastly, you stated "I know what happens when you put in the SSI; nothing." which is good information, but what about my conjecture "even if the adult child contributed some portion to room and board, wouldn't that have to be considered as a form of income to the custodial parent?" (FL-150, section 12) Or would this ONLY come into play in calculating the the actual expenses, as you have already mentioned?
I realize that this becomes less important if we can get the judge to consider actual expenses over the output of the dissomaster. I'm assuming (hoping?) that the actual expenses would be the lesser of the two -- is this correct? (My daughter has very few 'exceptional' expenses that are not covered by insurance and/or medi-cal.)
Sorry -- I forgot to say GREAT answer.
I have accepted twice. Please let me know if I'm asking too much more so we can work it out.
Well, thank you - I aim to please.
Unfortunately, I really can't guess how much she would receive from SSI....in the case I just tried, it was the mother who was getting SSI directly (and it did not go in as income in that case, either). So even if the mother was actually getting government aid in the form of welfare or AFDC, it still would not go in as income to her.
I think that part of the problem is that you are a little ahead of yourself - I mean, you are trying to figure out what support will be when you don't have the info (like how much she will get or how much the mother's income is.). It does seem as though you should be able to get an idea of how much the SSI will be by contacting SSA directly - that would help you a lot, I think.
Until you are brought back into court, you won't be ordered to continue to pay child support. I mean, if you were in court, the judge would order you to pay it and if you want to just agree without going to court (or without the mother filing a motion), I think that's fine. But if she wants support to continue by court order, she will have to file a motion with the court.
Okay - yes, there is a place in the Dissomaster where you put in the timeshare. Once the child turns 18, it goes in as zero.
As for the SSI being treated as income - the thing is, it's income to your daughter, not to the mother. And of course if your daughter turned 18 and was working and earning money, then all of this would be moot, because then your child support obligation would be over. You can certainly make the argument to the judge. Since the judge has discretion once the child turns 18, it's definitely a worthwhile argument; I just kind of doubt that you would win.
Really what I think is that the amount that she will be getting will be small enough that it would not make much of a difference. For example, my guess (it's a wild guess) is that you have a somewhat high income and your soon-to-be ex wife has a lower one. If this is the case, additional income to her probably would not matter much, if at all, in the outcome of the dissomaster calculation.
So, just for an example, if I put in your income as 10K per month and hers as 5K per month, child support would be $1,282. If she had an additional income of $1,000 per month, your payment would only be reduced to $1,257 per month, for a savings of $25 per month.
I know, I know - you are cringing. Sorry.
But what I'm getting at is that you need to weigh whether it's worth it to you to fight about something in court. If you end up spending tons of money in attorney's fees and lots of hours in court when your best case scenario is just a few dollars a month, you may not think it's worth it, financially.
And yes, without knowing any of the incomes involved, my guess is that the acutal expenses will end up being less than the guideline - but that's a wild guess, since I really don't have the information on the incomes or on the expenses.
Ok, thanks for the clarification. That's exactly why I was pressing for a dollar amount, even an estimate, to see if it was enough to have any effect.
Interesting example for her change in income (your estimates are very close) -- but her recent job loss is going to cost me more than that! But once the numbers start flying I have a hard time tracking SS vs. CS as they are effectively the same (other than tax deductibility).
When my income went up by $650/month I had to pay her $350 (again SS/CS combined). Hard to believe that her income changing by $1000/month would have no effect...
You're right -- I'm cringing. I don't mind paying my obligations, but the fact that this amounts to her life plan and I can NEVER escape is the really frustrating part. I have feared this situation for some time.
But actually you have given me some hope that we could transition to a situation where I pay the required expenses rather than a share of my income.
Thanks for all your help.
You are welcome. And yes, if she's recently lost her job, that's bad for you, but she can be ordered to seek and maintain employment. If she doesn't do this, the court can impute income to her. And don't forget - there are circumstances under which you won't have to pay forever - she could get remarried....win the lottery....get a higher paying job...
But the reason that the additional money to her would have no effect is partially the timeshare and partially because of the discrepancy in incomes. The underlying philosophy of the child support guideline is to equalize the living situations between the households for the benefit of the child.
So - sorry about the cringing part! I don't blame you - those are some tough circumstances. Best of luck to you.
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