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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Respondent recently approved for SSI, having undergone serious

Customer Question

Respondent recently approved for SSI, having undergone serious procedures (stroke, quadruple bypass, multiple angioplasties within the past year, and doctor also says can't work. Can Judge violate and incarcerate if petitioner (probation dept) requests dismissal and petitioner has no assets except for SSI (New York State).
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

I am sorry, but I am a bit confused as to what is going on here. Are you facing a probation violation for failure to pay restitution or a fine?

Is the probation and parole department seeking to not pursue the parole violation?

What is the DA's position on the matter?
Customer: replied 1 year ago.

This is a child support case brought by the probation dept. At one point in March, the petitioner (probation dept), counsel for the county and original petitioner (ex-wife) agreed that respondent could not pay at this point in time. Asked for dismissal which was granted in open court. Somehow, to the dismay of probation and county counsel, it was undismissed! At next court hearing, respondent reported that he was approved for SSI and submitted letter from cardiologist that he could not work at this time due to his cardiac and vascular issues. Court indicated that doctors would be supeonaed however that apparently wasn't done and at next hearing probation and county counsel again requested dismissal, court threw respondent in jail for violation.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your clarification.

I am afraid that for child support issues, the court can indeed jail the respondent for non-payment of the support. What I am unclear on, if the petitioner agreed to waive support and if the court dismissed the case and waived the arrears, the court could not just undo that without an appeal. You sound like you have grounds to appeal them convicting you on the probation violation for non-payment of support, since they cannot just undo the the dismissal without some court ordering it and you have to know why it was undone to know how to fight it and attack that.

Also, if you cannot pay support, it is your duty to file a motion to reduce or modify support and also to file with SSA to get your children dependent's benefits which would be credited against your support. Those are things you need to do if you have not done them already (as you have not said if you have or not).



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Customer: replied 1 year ago.

It is all arrears. At the time of the dismissal, it was agreed that barring any huge lottery win, they could wait until such time that his social security would kick in and they could garnish that. I understand that in NYS SSI benefits can not be considered income as does Federal law (Nicholson v Gavin, 207 A.D. 2d 402, 615 NYS 2d 458 (1994). Also probation dept (the petitioner) told me that it was actually dismissed twice! I can't help but feel something illegal is going on here.

Expert:  Law Educator, Esq. replied 1 year ago.
Than you for your response.

SSI benefits cannot be garnished, except for child support debts and also SSI benefits are considered income for the purpose of child support. Thus, when you are talking about child support the rules about SSI and SSDI not being subject to garnishment or calculation as income, this is an exception to that rule. All of the rules you have heard about SSI and retirements being exempt from everything do not apply to child support.

I do not know what the court did with this and why it allegedly was dismissed because I cannot see the case file, but it is imperative you go to the court where this happened and get the court file to read it to see what they have done here because again that is the only way to know how to attack it.
Customer: replied 1 year ago.

see 2nd question


 


http://www.acf.hhs.gov/programs/css/resource/attachment-of-social-security-benefits


 


and


 


http://www.acf.hhs.gov/programs/css/resource/garnishment-of-supplemental-security-income-benefits


 


and


 


http://www.divorcesource.com/research/dl/income/04apr71.shtml

Expert:  Law Educator, Esq. replied 1 year ago.
I still do not know what your point is, since what you just posted as links state just what I was summarizing for you.

I stated above about SSDI benefit, just what this says:

SSD benefits are attachable for child support purposes, because section 207 of the Act is expressly overridden by section 459(a) of the Act (42 U.S.C. 659(a)). Section 459 provides that payments from the Federal government, the entitlement to which is based upon remuneration for employment, are subject to income withholding or other legal process brought by a State IV-D agency or an individual obligee for purposes of enforcing child support obligations. Section 459(h)(1)(A)(ii)(I) of the Act (42 U.S.C. 659(h)(1)(A)(ii)(I)) specifies that payments under Title II of the Act, which includes SSD payments, are considered to be based upon remuneration for employment. In addition, federal regulations governing federal personnel at 5 C.F.R. 581.103(c)(1) specify that SSD is attachable for child support purposes.

SSD funds can be attached to satisfy child support obligations even if the support entitlement has been assigned to the State. The assignment does not change the nature of the debt, only the payee. See, Knickerbocker v. Norman, 938 F.2d 891 (8th Cir., Iowa,1991), Shepherd v. Shepherd, 467 N.W.2d 237 (Iowa 1991).


Furthermore, Some courts have held that, although SSI payments can not be attached through legal process for the enforcement of child support obligations, they can be considered income for purposes of calculating the child support obligation. See, Davis v. Office of Child Support Enforcement, 5 S.W.3d 58 (Ark. App. 1999), Commonwealth ex rel. Morris v. Morris, 984 S.W.2d 840 (Ky. 1998), reh. denied 2/18/99, Whitmore v. Kenney, 626 A.2d 1190 (Pa. Super. 1993).)

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Law Educator, Esq.
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