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  1. #1
    Join Date
    Nov 2012

    Default Is a Lump Sum SSDI Payment Credited Toward Child Support Arrears

    My question involves child support in the State of: California

    My ex-husband and I separated in 11/2004 and have been divorced since October, 2010. A child support order was put in place in February of 2005.

    CS has been modified three times since - the last modification being in July of 2009, based on his then unemployment income.

    He has not paid on a regular basis and has an arrears of 54k. The arrears date back to 2005. A least half of the arrearages are from prior to his disability onset date.

    This past summer, I was notified by the police that he had a plan to kill our children, so I now have sole legal and physical custody with zero visitation to him.

    Recently, he was approved for SSDI, and when the written decision is completed I will apply for auxiliary benefits for our two children, ages 12 and 14.

    He will receive a substantial check for back pay, and the children will receive an amount equal to about half of what he will get.

    My issue, is that when I spoke to the local CS office, I was told that the entire lump sum of the children's back pay will be credited toward current support, then the TOTAL arrears. It seems to me that most states (see June 2012 Kansas appeals decision, marriage of Tobar) credit the arrears only to the time frame the lump sum covers.

    The reason, I am questioning this, is that I believe the prior arrears should be paid or of HIS lump sum back pay, and the kids check should only cover the time since the onset of his disability. If he did not have any arrears, any "extra" benefits received would still stay with the children and not be credited toward future support, so why should any "extra" (after covering arrears within the disability time frame) cover old arrears?

    Please understand, I have no problem crediting these benefits as child support, I just don't believe the kids should have to use their benefits to cover his old past due child support.

    The local office of CS has referenced me to SSA Assembly bill 2669, which passed in 2004, and a letter from the California DCSS (CSS Letter: 05-13) dated April 2005.

    Here is a cut and paste of the section that pertains to my question:

    Effective January 1, 2005, LCSAs shall credit a NCP whose children receive federal payments from SSA, RRA, or DVA with the full amount of the monthly payments, including any lump sum payments. Any excess amount may be credited to the non-IV-A arrears.

    Example: Child receives $500 per month from NCP’s Social Security Disability income. The child support court order is for $150 per month, leaving $350 to be applied monthly to the $5000 IV-D arrearage. If there is no arrearage, the child receives the total $500 payment per month. The NCP only receives credit for $150 current support.

    If the CP or other child support obligee receives a lump sum payment representing payments for more than one month, credit is given for each month for which the lump sum payment was made.

    On the statement: "If the CP, or other child support obligee receives a lump sum payment representing payments for more than one month, credit is given for each month the lump sum payment was made", it seems to make it clear that the credits should only apply toward the months the lump sum covers, and of course if those months were not previously paid, then it would cover those arrearages.

    Does anyone have any thoughts on this - or any reference to case law since 2005?

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Is a Lump Sum SSDI Payment Credited Toward Child Support Arrears

    Here's the statute:
    Quote Quoting California Code of Civil Procedure, Sec. 695.221.
    Satisfaction of a money judgment for support shall be credited as follows:

    (a) The money shall first be credited against the current month's support.

    (b) Any remaining money shall next be credited against the principal amount of the judgment remaining unsatisfied. If the judgment is payable in installments, the remaining money shall be credited against the matured installments in the order in which they matured.

    (c) Any remaining money shall be credited against the accrued interest that remains unsatisfied.

    * * *
    Here's the corrected example:
    Quote Quoting Example
    NCP is ordered by the court to pay $150 per month for current support. In addition, the NCP also owes $5,000 in child support arrears. The CP directly receives $500 per month from the Social Security Administration (SSA), based on NCP Social Security Disability benefits, for the support of NcP's dependent child. NCP receives a monthly credit of $150 to be applied towards NCP current support obligation and $350 ($500 minus $150) to be applied towards the reduction of NCP's $5,000 arrearage balance (IV-A and non-IV-A). In the event the NCP owes no arrearage, the NCP only receives a credit resulting from the federal payment towards the $150 current monthly support due.
    If the lump sum exceeds the support due over the period for which the lump sum was paid the surplus gets credited toward arrears.

  3. #3
    Join Date
    Oct 2006

    Default Re: Is a Lump Sum SSDI Payment Credited Toward Child Support Arrears

    My completely personal opinion is that any money the children receive should be counted towards current support and then towards total arrears...which appears to be the way they are going to do it.

  4. #4
    Join Date
    Nov 2012

    Default Re: Is a Lump Sum SSDI Payment Credited Toward Child Support Arrears

    I do agree that the child benefits should credit the monthly child support order AND that the lump sum child benefits should credit his arrears - however I believe the arrears should only be credited for the time period the lump sum covers. The old arrearges should be paid out of HIS lump sum. Here is my reasoning: When I receive (as representative payee) the benefit check for my children - I will then put it in an account in their name. What isn't spent on food, shelter, clothing, etc...I will have to save in an account for them. That is a wonderful idea - however in regards to the time frame before he was disabled, I have already spent a significant amount of money caring for the children over the years and had hoped to be reimbursed that money so I could use it to replace the retirement savings I had to sacrifice, my regular savings I had hoped to leave to all of my children, the house I wasn't able to purchase and other things I had to sacrifice while supporting my two youngest children entirely on my own. I do realize that I can use the benefit lump sum for a down payment on a home, but that home will have to be in their names and that isn't fair to my older children - since the money I spent on these younger ones was their future inheritance. The SSA rules are very specific in that any money I receive on their behalf must be spent directly on them - and they don't take into account that money was spent long ago - out of my pocket.

  5. #5
    Join Date
    Jul 2012
    So Cal

    Default Re: Is a Lump Sum SSDI Payment Credited Toward Child Support Arrears

    I don't think you'll have any say as to how the funds are applied with respect to back support. The DCSS will apply the monies received in accordance with state law. But you're free to retain a lawyer and present your position to the Court.

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