How Disability Can Change Child Support Obligations

Divorce is difficult enough to navigate when both parents are healthy. When one of you is disabled, this can impact decisions and rulings ranging from custody to support, as well as the mechanisms used to force payment of the noncustodial parent’s support obligations. If you live in the Charlotte region and have a child support question, Contact us here or call us at 704-370-2828. We are proud to offer three convenient locations in Charlotte, Mooresville and our new office in Monroe to make the consultation process as convenient as possible.

Disability payments provided through both the Social Security Administration (SSA) and the Department of Veterans Affairs serve to provide financial support to disabled workers and their families. Either type of disability payments can have an impact on child support obligations. The amount of Social Security Disability benefits a noncustodial parent receives, for example, can be subject to income withholding, or garnishment, if that parent falls behind on his or her monthly child support payments. In certain circumstances, the noncustodial parent’s disability payments paid by the Department of Veteran’s Affairs can also be subject to garnishment to force payment of his or her child support obligation.

Social Security Disability

Social Security Disability benefits are intended to provide disabled workers and their entire families with financial support. These benefits are not need-based and do not require that the disabled person have unearned income or limited assets. Rather, initial Social Security Disability benefit eligibility is based on whether the disabled person worked long enough and recently enough at a job covered by Social Security.

• Auxiliary/derivative payments. The following is true of Social Security benefits received on a child’s behalf as a result of either parent’s disability or retirement.
  • The Social Security Administration also typically pays monthly auxiliary benefits on behalf of children not living with a disabled parent to provide financial support for the children’s everyday needs in the place of child support payments. In North Carolina this benefit is attributed as income to the noncustodial parent because the amount is then deductible from that parent’s child support obligation. The same is also true of benefits paid through Veteran’s Affairs.
• Garnishment.
  • It is true that in general, Social Security Disability benefits are exempt from being garnished, or withheld, to force payment of some legal obligation. This provision is to prevent debt collectors from taking the majority of monthly benefits a disabled individual depends upon for survival.
  • However, this anti-garnishment provision does not apply to child support payments or spousal support. These two types of financial obligations can still be withheld from the monthly amount of Social Security Disability benefits the noncustodial parent receives.
  • In some cases, the auxiliary Social Security Disability payment may not be sufficient to cover the monthly child support obligation due to the custodial parent. For example, if the noncustodial parent is behind on child support, and the past due payment amounts together with the current payments add up to more than the amount of the monthly auxiliary Social Security Disability benefit, then the noncustodial parent’s disability benefits can be adjusted in order to provide more support for his or her child(ren).

Veteran’s Affairs Disability and Garnishment

Similar to the Social Security Administration, Veteran’s Affairs also pays disability benefits to qualifying veterans and their families.

Benefits paid by Veteran’s Affairs to veteran noncustodial parents are generally excluded from garnishment for child and spousal support, with one important exception. The exception occurs when a veteran eligible to receive military retirement or retainer pay waives a portion of that pay in order to receive disability compensation through Veteran’s Affairs. In such a case, only the portion of the waived Veteran’s Affairs retirement/retainer pay is subject to income withholding.

If you have a legal issue involving disability benefits and child support, it is important to consult with an attorney in your state experienced with handling both. The attorneys at Arnold & Smith, PLLC handle a wide variety of family law matters for clients throughout the Charlotte, North Carolina region ranging from adoption to separation and divorce, child custody and divorce, alimony, and equitable distribution. Arnold & Smith, PLLC is proud to offer two attorneys that are Board Certified Family Law Specialists and one attorney that is a Board Certified Child Welfare Specialist. Contact our office today for a consultation with one of our dedicated family law attorneys about your unique situation.