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max713
max713, Lawyer
Category: Family Law
Satisfied Customers: 1893
Experience:  I am responsive, respectful, and relentless.
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SSDI Derivative benefits as income for child support calc

Customer Question

If a non custodial parent is receiving SSDI benefits, and the children get derivative benefits that are paid to the custodial parent - are those benefits counted as part of the non-custodial parents income for purposes of calculating child support? This is for CALIFORNIA
Submitted: 1 year ago.
Category: Family Law
Expert:  max713 replied 1 year ago.

max713 :

Hi. I apologize for your difficult circumstance, and thank you for choosing Justanswer for your legal question(s). My role as expert is to provide you with utmost service through providing legal information that is honest and truthful (and not overly rosy in nature). Notably, I do not provide advice.

Yes, if benefits derive from a non-custodial parent to a child - and the custodial parent receives for the child - that counts as the non-custodial parent's income. It is also used to reduce the child support obligation by the amount derived to the child.

max713 :

Does that make sense?

Customer: That absolutely makes sense. However, I'm told by the local office of child support that they will not count the benefits toward the NCP income to calculate a higher amount of support.....but they will credit what e kids receive toward the obligation....and then any extra will go toward his arrears. Is there a law or guidelines written that say they have to add that to his income to determine support?
max713 :

http://cssd.dc.gov/page/impact-ssi-and-ssdi-child-support

Above is one resource that should help. It is particulate to Washington DC, though. Where are you located?

max713 :

Texas is a little different:

"Under Texas law, if a child receives derivative benefits as a dependent of a disabled parent, then the noncustodial parent can request a credit for the child's benefits, according to Texas Family Code Section 154.132"

max713 :

What state are you located in?

max713 :

Upon review, I have discovered that you are located in California. I apologize for any confusion caused. Derivative payments are credited per IN RE: THE MARRIAGE OF Danny C. and Shannon HOPKINS.

max713 :

It would still seem to be treated as non-custodial parent's income for the amount credited in California.

Customer: Yes...the derivative payments are credited as per family code 4504.....I'm just w
Customer: yes, the derivative payments are credited to child support, as pw
Customer: yes, the derivative benefits are credited as per Family Code 4504 - and covers arrears as well....even prior to disability, but that is another argument. What I need to find is some caselaw, or regulation that says the child benefits - even when paid to custodial parent on behalf of the children - is credited to the non-custodial parents income when computing the amount of support.
Customer: There has been legislation passed and the FC has been revised since Hopkins.
Customer: Whoops...I wondered why my screen kept disappearing when I accidentally hit the return key...so sorry!!
max713 :

That's fine. Don't worry. As you may know, all social security benefits should be included in California per Family Code 4058.

Customer: Hmm....I didn't look at 4058.....
max713 :

The difficulty may be 4058 part (3)(c): Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need.

max713 :

But, part (1) says the following: "Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article."

max713 :

Of course, social security benefits would seem to be included in all forms per (1), though (3)(c) does create a limitation for "income" for child support payments received. That would seem to apply to payee only and not payor.

Customer: I see that. I've seen in other states that when they credit the derivative benefits to child support....the explanation is because the money "derived" from that NCP parent . They then use that money as income for the NCP to calculate. When I asked the local child support if they would include that in the computation, they looked at me as if I were nuts. So, now they will take the kids benefits, credit them toward his obligation and not include the money in his computation. Just doesn't seem fair.
max713 :

I certainly think your analysis is a strong one.

Customer: The reason I am looking at this is that I would like for his arrears to be taken out if his lump sum.....so I can reimburse myself for having to spend my proceeds I'd the sale of our home to support the kids while he refuse to pay.
max713 :

I'm certainly sorry to hear that.

Customer: I suppose I will just argue my point in court...I just needed some points and authorities....or a strait up, clear regulation.
max713 :

The law cited is the explanation of what is income and what its exceptions are. I'm sorry there's not something a little clearer.

max713 :

In family law, the family code is the basis of law (and not a different type of regulation).

max713 :

4058 is the relevant law herein - for the reasons shown above.

Customer: You are great...thank you so much!
max713 :

Thank you. And, you are most welcome. It's my pleasure to serve you.

Customer: I get it......I'm a little slow this time of the eve.....or morning!
max713 :

Not a problem.

max713 :

Please click the smiley face on your screen before exiting.

Customer: I need the money to go to law school :)
Customer: Anyway...thank you and good night!
max713, Lawyer
Category: Family Law
Satisfied Customers: 1893
Experience: I am responsive, respectful, and relentless.
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