Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Does Disability Income Affect My New Jersey Child Support Payments?

As a New Jersey child support attorney for the past 20 years, I have noticed a tremendous increase in people who are on either state of federal disability.  Therefore, as a cutting edge New Jersey family lawyer, I determined it would be a good time to share how disability income may affect a parent’s New Jersey child support payments.  Let’s explore.

Everybody has heard of supplemental social security income and social security disability. Yet, what most people do not know is that the two are quite distinct in nature. Particularly, the two types of disability income differ when it comes to their impact on child support payments. Let’s explore.

What is the difference between supplemental security income and social security disability in the first place?

Supplemental security income is a means tested government benefit. In other words, it is meant to provide impoverished disabled people with a supplemental form of resources and income. This type of security income is not meant to replace income lost by a disabled person because he or she is unable to perform on the job. Rather, the supplemental security income is just additional help for the people who need it most.

On the other hand, social security disability is a non-means tested government benefit. That means that the income of the disabled person is not the sole determinant to see if one is entitled to the extra help from the government. Social security disability primarily differs from supplemental security income because it is funded from payroll deductions and replaces income lost by a disabled person because he or she is unable to perform on the job.

Who qualifies for these types of disability income?

To be eligible for either of the types of disability income, one must first be deemed “disabled” by the government. Pursuant to 20 C.F.R. §404.1505, disability is “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy.”

How does supplemental security income affect child support?

Supplemental security income is simply additional income that disabled people may qualify for. However, it is not considered income when determining child support payments. The leading case that illustrates this is Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004). In Burns, the issue presented was whether supplemental security income should be counted as income when determining child support payments if the benefits were the disabled parent’s primary source of support and income could not be credited to the parent.

The court held that since the father’s primary source of income and support was supplement security income, he should not have to pay child support because he would then have no additional money to live off of. Furthermore, the court found that “a child support order may be entered against a parent who is a supplemental security income recipient where it is determined that the parent is earning or has the ability to earn additional income.” Id at 50.               

How does social security disability affect child support?

Social security disability is a replacement for lost income by disabled people. Therefore, it is counted as gross income under the NJ Child Support Guidelines. It is important to note that if you are receiving social security disability, your child may too be eligible to receive benefits as well. If this is the case, the social security disability benefits will be subtracted from the payor parent’s child support payments.

Currently, there are three leading cases on this topic. The first is Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998). In Herd, the court held that since the child was receiving social security disability benefits because of a disabled parent, the amount of child support to be paid should be reduced. Since the child was receiving additional benefits from the government in this form, it was only fair and equitable to reduce the child support payments being paid by the non-custodial, non-disabled parent.

In the second case, Sheren v. Moseley, 322 N.J. Super. 338 (App. Div. 1999), the father’s child support payments for his two kids was $75 a week. However, after the divorce he suffered from medical disability and could not go to work, resulting in failure to pay his support obligations for his kids. A post-judgment order revealed that his child support arrearage was $5667.82 as of January 1, 1995. Id at 340. Over two years later, the father was granted retroactive children’s benefits totaling $8952, which was immediately sent to the kids’ mom. The court held that “the father was entitled to a $5667.82 credit against the arrearages that accrued during the period of his disability, but not entitled to a credit against his future child support payments when he was no longer disabled.”

The last leading and most recent case that addresses this issue is Diehl v. Diehl, 389 N.J. Super 443 (App. Div. 2006). The Diehl court held that when a child receives a lump sum payment benefit because his or her parent is receiving social security disability, the parent can only be credited for the amount of time he or she was responsible to pay child support and for that specific amount. The court stated “absent a special showing of inequity under the circumstances, an obligor should be credited with a retroactive payment of social security disability benefits that do not exceed the obligor’s support obligation during the benefit period.” Id at 450.            

If you or a loved one is on disability and either pays or receives disability income, please do not ever hesitate to contact my office