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Michael Bradley
Michael Bradley,
Category: Family Law
Satisfied Customers: 1057
Experience:  Owner at The Protection Group LLC
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If a NCP is recieving SSDI and children derivative payments

Customer Question

if a NCP is recieving SSDI and children derivative payments in the State of New York- are those benefits counted as the income for calculating child support in New York state
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: New York
JA: Have you talked to a lawyer yet?
Customer: I am pro Se
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 1 month ago.
Category: Family Law
Expert:  Michael Bradley replied 1 month ago.

SSDI is not considered income in a child support determination

SSDI is considered federal welfare

Customer: replied 1 month ago.
I am the custodial parent. The non custodial parent receives payments earmarked for the children . It seems that some state treat this as income that helps calculate the Child support payments. I cant find anything in New York though. Seems like a lot is on the Judges discretion.
Customer: replied 1 month ago.
are u there?
Expert:  Michael Bradley replied 1 month ago.

so the non custodial parent gets money that is earmarked for the children than live with you?

and the only reason he gets the money is because of the children?

Customer: replied 1 month ago.
I ( the father) have custody. She gets money earmarked ( derivative payments) for the kids. She is NCP
Expert:  Michael Bradley replied 1 month ago.

is there a child support order in place?

Customer: replied 1 month ago.
No order yet. I want the money to count as income for support calculation. Her lawyers are not using it to keep under the poverty level. She also receives Maintenance from me. I want Child support to offset .
Customer: replied 1 month ago.
Has anything in New york been done that would support me. I see it in Wyoming.
Customer: replied 1 month ago.
Anything? I have to go soon.
Expert:  Michael Bradley replied 1 month ago.

I am still looking

Expert:  Michael Bradley replied 1 month ago.

she is on SSDI, the kids gets a monthly amount as well and she keeps is and not you?

Customer: replied 1 month ago.
correct
Customer: replied 1 month ago.
That would be OK if I can count as income for her
Expert:  Michael Bradley replied 1 month ago.

in my opinion yes it is income since she is keeping both

you are supposed to get that and she a credit on child support she would owe

SSDI is income to her, the derivative is added as income as well and then deducted but should not be deducted since she is keeping it

Customer: replied 1 month ago.
Is there any case or something to support that
Expert:  Michael Bradley replied 1 month ago.

try this case

In a recent decision of the Appellate Division, Fourth Department, in Holeck v. Beyel, 145 A.D.3d 1600, 43 N.Y.S.2d 816, the court upheld a direction to a disabled father (the non-custodial parent) to apply to the Social Security Administration to change representative payee of the children’s social security disability (SSD) benefits from the father to the custodial mother. The appellate court also upheld the denial of the father’s request for a reduction in his support obligation by virtue of his loss of the SSD benefits for the children.

Generally, when a disabled parent is qualified for Social Security disability benefits, the children may also qualify to receive benefits on the disabled parent’s work-record. Eligible children can be a biological, adopted or stepchildren. Normally, benefits stop when the child reaches age 18 unless they are disabled. However, if the child at age 18 is still a full-time student at a secondary (or elementary) school, benefits will continue until the child graduates or until two months after the child becomes age 19, whichever is first.

The Fourth Department noted in a child support matter, the trial court has the discretion to consider everything available to support the child. Here, it was determined that the needs of the children would be best served by having the mother, who had primary physical custody, receive directly the SSD benefits for the children.

In 1996 it was held by the Court of Appeals in Matter of Graby v Graby (87 N.Y.2d 605), that Social Security payments received for the benefit of the child of a disabled parent are not to be included as the income of either parent when making calculations under the C.S.S.A. child support formula. Rather such payments are treated as resources of the child, to be considered only to determine whether the parents’ support obligations determined under the formula is unjust or inappropriate. Moreover, Social Security disability benefits paid to a child on the basis of a non-custodial parent’s disability are not to be credited against that parent’s child support obligation.

Here, moreover, the appellate court concluded that because the father failed to establish that he had previously used the payments for the benefit of the children, the Support Magistrate did not err when directing that the father pay to the mother the benefits he received after the mother filed her petition. Such post-petition benefits were not to be considered support arrears. Rather, appellate court validated that the Support Magistrate properly directed the father to provide the mother with funds that were for the children’s social security payment that the father received which he neither gave to the mother, nor used for the children’s benefit.

The father’s request for a reduction of his child support obligation was properly rejected. The father requested that reduction after the mother became the payee for the children’s SSD benefits. The father contended that he would be receiving less income due to the change in payee.

However, it is well settled that:

although a dependent child’s Social Security benefits are derived from the disabled parent’s past employment, they are designed to supplement existing resources, and are not intended to displace the obligation of the parent to support his or her children.

Therefore, the fact that the Support Magistrate directed the father to request that the Social Security Administration designate the mother as the children’s representative payee, together with the father’s resulting loss of the use of that money, did not provide a basis for a downward modification of the father’s child support obligation.

Expert:  Michael Bradley replied 1 month ago.

how did your case go?