THE EFFECT OF SOCIAL SECURITY BENEFITS ON CHILD SUPPORT
Laura Wish Morgan
I. Social Security Benefits in General
Title II of the Social Security Act provides a federal grant of old-age and disability insurance benefits. 42 U.S.C. § 402. Upon satisfying the necessary age requirements, a fully insured Social Security retiree and a spouse or ex-spouse who was married to the retiree for at least 10 years are entitled to Social Security retirement benefits. Further, both fully insured workers who become disabled and their dependents are entitled to Social Security benefits.
Social Security benefits are not a vested right. Congress retains the right to alter, amend, or repeal any provisions of the Social Security Act.42 U.S.C. § 1304. Indeed, in Fleming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367 (1960), the Court refused to analogize Social Security benefits to an accrued property right in the form of an annuity. The Court stated:
Feming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 1371-72 (1960). Accord In re Marriage of Nizenkoff, 65 Cal. App. 3d 136, 135 Cal. Rptr. 189 (1976) (Congress's retention of Section 1304 f the Social Security Act reaffirms the view that Social Security benefits are not property); see also Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254 (1971) (the expectation of public benefits under the Social Security Act does not confer a contractual right to receive the expected amounts).
Thus, Social Security benefits may not be treated as a property interest because Congress has retained the power to alter, amend, or repeal the benefits. The fact that Social Security benefits are not a vested right plays an important part in the courts' determination that Social Security benefits are not subject to division on divorce.
Social Security benefits are also not transferable or assignable, and they are not subject to execution, levy, attachment, garnishment, or other legal process. 42 U.S.C. § 407(a). This section applies to benefits received as well as future benefits. Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S. Ct. 590 (1973). The anti-assignment provision, however, does not apply to legal process brought for the enforcement of an individual's legal obligation to provide child support and spousal support. 42 U.S.C. § 659(a); see, e.g., Mariche v. Mariche, 243 Kan. 547, 758 P.2d 745 (1988). Thus, by the clear terms of the federal statute, Social Security benefits are to be considered funds available for the support of children.
II. Social Security Benefits Received by a Parent
For purposes of child support, Social Security benefits received by a parent constitute income. E.g., In re Marriage of Simon, 856 P.2d 47 (Colo. Ct. App. 1993) (Social Security disability is income); Forbes v. Forbes, 610 N.E.2d 885 (Ind. Ct. App. 1993) (Social Security disability benefits are income); In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1991); In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992); In re Marriage of Callaghan, 19 Kan. App. 2d 335, 869 P.2d 240 (1994); In re Marriage of Durbin, 251 Mont. 51, 823 P.2d 243 (1991); In re Marriage of Stringham, 124 Or. App. 626, 863 P.2d 504 (1993); Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994). Indeed, 42 U.S.C. § 659(a), providing an exception to the anti-alienation provision of 42 U.S.C. § 407 for support, may be read as expressly authorizing state courts to consider Social Security benefits as income for purposes of spousal support and child support.
III. Social Security Benefits Received by a Child
A. Received on Account of the Child's Own Disability
Social Security benefits received by a child on account of the child's own disability do not reduce the parental support obligation. The courts have held that the parents must continue their support obligation, rather than shift the burden to the public. E.g., Hall v. Hall, 677 So.2d 91 (Fla. Dist. Ct. App. 1996); Hammett v. Woods, 602 So. 2d 825 (Miss. 1992); Hollister v. Whalen, 244 A.D.2d 650, 663 N.Y.S.2d 918 (1997).
B. Received on Account of a Parent's Retirement/Disability/Death
A child may also receive Social Security benefits due to a retirement, disability, or death. Federal law provides that a child of an individual entitled to such disability, old-age, or death benefits shall be entitled to a child's insurance benefit provided the child has filed an application, has not reached age 18 and is not married, and is dependent on such individual. 42 U.S.C. § 402.
Where a child receives such retirement or disability benefits on account of the custodial parent's retirement or disability, the payments made to the children are credited to the custodial parent's gross income. They are not credited to the noncustodial parent's support obligation. Mich. C.S.G., II(D); Dinkel v. Dinkel, 598 So. 2d 918 (Ala. Civ. App. 1992); In re Marriage of Lang, 668 N.E.2d 285 (Ind. Ct. App. 1996); Jendreas v. Jendreas, 664 N.E.2d 367 (Ind. Ct. App. 1996) (noncustodial parent can't use excess benefits from custodial parent to offset obligation); State ex rel. Pfister v. Larsons, 569 N.W.2d 512 (Iowa Ct. App. 1997) (father was not entitled to offset for Social Security income received by mother); Phillips v. Phillips, 673 So.2d 333 (La. Ct. App. 1996); see also In re Foley, 501 N.W.2d 497 (Iowa 1993) (adoptive father who owed support was not entitled to credit for Social Security benefits received by children due to biological father's death); In re Mudrak, 23 Fam. L. Rep. (BNA) 1150 (Ohio Ct. App. 1/22/97) (obligor may not get dollar-for-dollar credit for child's receipt of Social Security benefits received on account of custodial mother's death); Lovett v. Lovett, 311 S.C. 279, 428 S.E.2d 874 (1993) (father not entitled to offset for amount child receives on account of mother's disability); Jensen v. Bowcut, 892 P.2d 1053 (Utah Ct. App. 1995) (court not required to offset father's child support obligation due to child's receipt of Social Security benefits on account of child's mother's death). But see In re O'Brien, 23 Fam. L. Rep. (BNA) 1392 (Iowa Sup. Ct. 6/18/97) (noncustodial parent may receive credit for Social Security disability that child receives on account of stepfather's disability); Previte v. Previte, 99 Ohio App. 3d 347, 650 N.E.2d 919, appeal denied 71 Ohio St. 3d 1503, 646 N.E.2d 1127, reconsideration denied, 72 Ohio St. 3d 1422, 648 N.E.2d 515 (1994) (court granted noncustodial father's petition to offset support obligation by amount of Social Security benefits child began to receive due to custodial mother's disability); Carpenter v. Reis, 109 Ohio App. 3d 499, 672 N.E.2d 702 (1996) (benefits paid on account of stepfather's disability are deviation factor).
Where a child receives such retirement or disability benefits due to a noncustodial parent's retirement or disability, and this noncustodial parent is obligated to pay child support, the social security retirement or disability payments are considered income to the obligor parent. Further, the courts have adopted essentially three approaches to the question of how to treat the receipt of these benefits with regard to the retired or disabled parent's child support obligation:
First, the overwhelming majority of states that have considered the question of how a court should consider a child's receipt of Social Security dependency benefits in the determination of an individual's child support obligations have allowed the child support obligor a dollar-for-dollar credit against the amount of Social Security benefits received by the child. Harbison v. Harbison, 688 So. 2d 876 (Ala. Civ. App. 1997) (Social Security received by child on account of former husband's disability is income to him, and he is entitled to credit); Self v. Self, 685 So. 2d 732 (Ala. Civ. App. 1996) (it is an abuse of discretion to deny father credit for Social Security benefits received by child on account of father's disability); Miller v. Miller, 890 P.2d 574 (Alaska 1995); Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962); Lopez v. Lopez, 125 Ariz. 309, 609 P.2d 579 (Ct. App. 1980); In re Marriage of Denny, 115 Cal. App. 3d 543, 171 Cal. Rptr. 440 (1981); Williams v. Williams, 560 So. 2d 308 (Fla. Dist. Ct. App. 1990); Perteet v. Sumner, 246 Ga. 182, 269 S.E.2d 453 (1980) (citing Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963)); In re Marriage of Henry, 156 Ill. 2d 541, 622 N.E.2d 803 (1993); Childerson v. Hess, 198 Ill. App. 3d 395, 555 N.E.2d 1070 (1990); Newman v. Newman, 451 N.W.2d 843 (Iowa 1990) (citing Potts v. Potts, 240 N.W.2d 680 (Iowa 1976)); In re Marriage of Dyer, 21 Fam. L. Rep. (BNA) 1591 (Iowa Ct. App. Sept. 22, 1995); Ellis v. Berry, 19 Kan. App. 2d 105, 867 P.2d 1063 (1993); Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975); Miller v. Miller, 929 S.W.2d 202 (Ky. Ct. App. 1996); Folds v. Lebert, 420 So. 2d 715 (La. Ct. App. 1982); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975); Frens v. Frens, 191 Mich. App. 654, 478 N.W.2d 750 (1991); Mooneyham v. Mooneyham, 420 So. 2d 1072 (Miss. 1982); Weaks v. Weaks, 821 S.W.2d 503 (Mo. 1991) (en banc); McClaskey v. McClaskey, 543 S.W.2d 832 (Mo. Ct. App. 1976); In re Cowan, 279 Mont. 491, 928 P.2d 214 (1996); Hanthorn v. Hanthorn, 236 Neb. 225, 460 N.W.2d 650 (1990); Griffin v. Avery, 120 N.H. 783, 424 A.2d 175 (1980); Romero v. Romero, 101 N.M. 345, 682 P.2d 201 (Ct. App. 1984); Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D. 1989); McClure v. McClure, 22 Fam. L. Rep. (BNA) 1566 (Ohio Ct. App. 9/27/96); Young v. Young, 105 Ohio App. 3d 701, 664 N.E.2d 1232 (1995); Nazworth v. Nazworth, 931 P.2d 86 (Okla. Ct. App. 1996); Wilson v. Stenwall, 868 P.2d 1317 (Okla. Ct. App. 1992); Preston v. Preston, 435 Pa. Super. 459, 646 A.2d 1186 (1994); Children & Youth Services v. Chorgo, 341 Pa. Super. 512, 491 A.2d 1374 (1985); Pontbriand v. Pontbriand, 622 A.2d 482 (R.I. 1993); Lovett v. Lovett, 311 S.C. 279, 428 S.E.2d 874 (1993); Grunewaldt v. Bisson, 494 N.W.2d 193 (S.D. 1992); Hawkins v. Peterson, 474 N.W.2d 90 (S.D. 1991); Johnson v. Johnson, 948 S.W.2d 835 (Tex. Civ. App. 1997); In re Interest of Allsup, 926 S.W.2d 323 (Tex. Ct. App. 1996); Brooks (Nunley) v. Brooks, 881 P.2d 955 (Utah 1994); Davis v. Davis, 141 Vt. 398, 449 A.2d 947 (1982); Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994); Farley v. Farley, 186 W. Va. 263, 412 S.E.2d 261 (1991); Hinckley v. Hinckley, 812 P.2d 907 (Wyo. 1991). The courts have based their decisions on the premise that Social Security benefits paid to children represent substituted income that is otherwise due to the obligor parent. In essence, a payor spouse is entitled to a credit for Social Security disability benefits received by that spouse's children, because the benefits represent a substitute for the payor's income. The benefits are thus substitute support, as support is derived from income.
This approach has also been adopted in the majority of states that addressed the issue in the guidelines themselves. Colo. Rev. Stat. § 14-10-115(16.5) (in cases where the custodial parent receives Social Security benefits on behalf of the children due to the disability or retirement of the noncustodial parent, the noncustodial parent's share of the total child support obligation shall be reduced in an amount equal to the amount of such benefits); Conn. C.S. and Arrearage G. (noncustodial parent receives credit for any Social Security benefits payable under such parent's account on behalf of the subject child); Idaho R. Civ. Pro. 6(c)(6)(sec. 11) (when disability or retirement benefits are received by child, the amount of compensation paid for the children shall be treated for all purposes as if the disabled or retired person paid the compensation toward the satisfaction of the support obligation and any arrearage); Mich. C.S.G., II(D) (when children receive dependent benefits based on the earnings record of the noncustodial parent, those benefits shall not be considered income to the custodial parent, but shall be considered payment toward the noncustodial parent's obligation of support); Utah Code Ann. § 78-45-7.7 (Social Security benefits received by a child due to the earnings of a parent may be credited as child support to the parent upon whose earnings record it is based).
While the discussion thus far has focused on disability and retirement benefits, the courts have applied the same rationale to survivor benefits as well. E.g., Bowden v. Bowden, 426 So. 2d 448 (Ala. Civ. App. 1983) (applying North Carolina law); In re Marriage of Meek, 669 P.2d 628 (Colo. Ct. App. 1983) (Social Security benefits paid to children on account of payor spouse's death satisfied decedent's support obligation, since such benefits represented money earned and contributed through efforts of working parent that substituted as income to worker's family on worker's death and as such constituted payments in the nature of support); Board v. Board, 690 S.W.2d 380 (Ky. 1985); Brewer v. Brewer, 244 Neb. 731, 509 N.W.2d 10 (1993); Gilford v. Wurster, 24 Ohio App. 3d 77, 493 N.E.2d 258 (1983); Pessein v. Pessein, 68 Wash. App. 893, 846 P.2d 1385 (1993). But see In re Marriage of Bertrand, 33 Cal. App. 4th 437, 39 Cal. Rptr. 2d 151 (1995) (survivor benefits received by child on account of parent's death cannot be used to satisfy parent's support obligation, rejecting argument that death is the ultimate disability). See generally Annotation, Right to Credit on Child Support Payments for Social Security or Other Government Dependency Payments Made for Benefit of Child, 34 A.L.R. 5th 447 (1995) (stating majority rule, listing cases).
Second, some states have held that a child's receipt of Social Security benefits does not per se require a dollar-for-dollar credit against an obligor's support obligation. Rather, these courts have stated that the proper procedure is for the court to carefully consider the effect of the receipt of benefits on the needs of the children at issue. If appropriate, the court must then make written findings of fact that the obligor's current obligation is unjust or inappropriate, and then offset the benefits received. Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995); DeLaOssa v. DeLaOssa, 291 N.J. Super. 557, 677 A.2d 1157 (App. Div. 1996); Graby v. Graby, 87 N.Y.2d 605, 641 N.Y.S.2d 577 (1996); Nibs v. Nibs, 625 P.2d 1256 (Okla. 1981); In re Marriage of Lawhorn, 119 Or. 225, 850 P.2d 1126 (1993); In re Marriage of Krompel, 129 Or. App. 394, 879 P.2d 223 (1994); Miller v. Bistransky, 451 Pa. Super. 433, 679 A.2d 1300 (1996); Chase v. Chase, 74 Wash. 2d 253, 444 P.2d 145 (1968). One state has adopted this approach in the guidelines. N.C. C.S.G.; see also Or. Admin. Reg. 137-050-0405.
Third, some courts have stated that a child's receipt of Social Security benefits is but a factor in considering the needs of the child. Ouellette v. Ouellette, 687 A.2d 242 (Me. 1996) (not entitled to offset; is deviation factor); In re Marriage of Haynes, 343 N.W.2d 679 (Minn. Ct. App. 1984). This same court has declared, however, that these payments to the children must be considered in measuring children's need for support. Green v. Green, 402 N.W.2d 248 (Minn. Ct. App. 1987). See also Kight v. Kight, 242 Ga. 563, 250 S.E.2d 451 (1978) (while the court disallowed a dollar-for-dollar credit, the court did state that the trial court must consider the wife's receipt of these funds as additional income available to the children in husband's modification action).
In sum, counsel must remember that Social Security benefits received by a child may be credited to the obligor's child support obligation if the benefits are received on the obligor's account, but in some states, the credit is not automatic.