Disability Payments and Child Support

In Illinois, does a parent who is receiving social security disability payments (SSDI) still obligated to pay child support?

In Illinois, child support is typically based on the non-custodial parent’s income. The payor is obligated to pay a percentage of his/her income. For one child, it’s 20%; for two children it’s 28%; for three children it’s 32%; for four children it’s 40%; for five children it’s 45%; and for six or more children, it’s 50%.

A problem arises when the payor of the support becomes disabled. Does the non-custodial parent/payor still have an obligation to pay support? If so, can the payments be garnished?

When the non-custodial parent becomes disabled and has minor children, Social Security provides for what is known as a “dependent disability allowance.” Each month, this benefit is paid to the custodial parent. In 1993, the Illinois Supreme Court decided that payment of this social security dependent disability allowance fulfills the non-custodial parent’s obligation to pay child support. In other words, this payment made by Social Security takes the place of the payor’s child support obligation and he/she does not have to make any other child support payments. And because the dependent disability allowance is an extra benefit above and beyond what the disabled parent receives from SSDI, there is no need for a garnishment. The parents of the child must simply provide the Social Security Administration with proof of who the custodial parent is and where this dependent allowance is to be sent. It’s that easy.

What happens, however, if the disabled parent owed a child support arrearage prior to receiving the SSDI? For example, what if the parent who is receiving SSDI was supposed to pay $500.00 per month and he missed 10 months of payments. He would owe the custodial parent $5,000.00. If the custodial parent is now receiving $1,000.00 per month from the dependency allotment, does the disabled parent still owe the $5,000.00 arrearage? If yes, how does the custodial parent collect? Case law states that a child’s social security disability dependency benefits are not to be credited against the non-custodial’s child support arrearage when the arrearage accrued prior to the parent becoming disabled. The same case further held that any excess child support payments made to the child form the social security disability dependency benefits are a gratuity and cannot be applied as a credit towards the child support arrearage (so long as the arrearage accrued before the parent became disabled).

The exception to this general rule regarding the garnishment of SSDI payments is when there is unpaid child support arrearages. In this case, federal law does allow for the SSDI to be garnished and forwarded to the custodial parent. This is one difference between SSDI and Supplemental Security Income (SSI) benefits, which are not allowed to be garnished.

If you have any questions regarding child support and Social Security Disability Income, contact the attorneys at Taradash Given, P.C. for a free consultation. Our divorce and family law attorneys have the experience and knowledge necessary to handle any family law issues which may arise. Taradash Given, P.C. serves clients in and around Chicago, including DuPage, Will, and Lake Counties. Contact us online, or call (312) 775-1020 to speak to an experienced attorney today.

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