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

Is Social Security Insurance Income Included In Calculating Child Support In N.J.?

No.  In Burns v. Edwards, the New Jersey Appellate Division held that Supplemental Security Income benefits are not countable income for child support calculation purposes.  Benjamin Edwards, a father, was disabled and his only source of income came from Supplemental Security Income benefits, which is a means-test based federal disability program that is administered by the Social Security Administration according to federal law 42 U.S.C.S §§ 1381-1385. His ex-wife, Carolyn Burns, in conjunction with the county social services board, filed an action against him and was awarded with an order that required him to pay child support every week, in addition to pay back a portion of arrears every week. As result, he filed a motion in the Family Part court of Camden County to terminate his child support obligation. The motion was denied and this appeal followed.

 The New Jersey Appellate Division held that under 42 U.S.C.S § 407(a), a parent’s Supplemental Security Income could not be used in the calculation of child support, when the Supplemental Security Income was that parent’s sole income, and he or she did not have the ability to generate any additional income, and income could not otherwise be imputed on to him. Therefore, the appellate panel reversed the part of the Family Part’s order that instituted a child support obligation against Benjamin.

Carolyn Burns and Benjamin Edwards had one child together. Carolyn had custody of the child and received public assistance benefits herself, through the child. Benjamin was forty-one years old at the time of this action and was diagnosed with schizophrenia. Due to his disability, he received Supplemental Security Income, which is a means-tested federal disability program, directed by the Social Security Administration. The Supplemental Security Income benefits he received were his only source of income, and there was no evidence in the record that suggested that he had any earning capacity with which he could earn any additional income. In fact, the record clearly suggested that he lacked any ability at all to earn income.

Benjamin received $ 576 a month in benefits while living in a boarding house for disabled people. As a result, $ 495.75 of his benefits would be paid directly to the boarding house, and he would receive a monthly personal needs allowance of $ 80.50. He attended a mental health counseling program five times a week, and on August 13, 2002, his doctor submitted a letter to the Family Part in which he stated that, Benjamin “has been diagnosed with Schizophrenia and is currently unable to be employed.”

On December 14, 1998, an order had been entered that required Benjamin to pay $ 15 a week in child support, plus $ 10 a week towards unpaid arrears. This order incorrectly listed Social Security Disability as his income source. On November 12, 2002, the Community Health Law Project, filed a motion to terminate Benjamin’s child support obligation on his behalf. They argued that Supplemental Security Income benefits could not be used as a basis for establishing a child support obligation. The motion was denied and this appeal followed.

The New Jersey Appellate Division started its opinion by explaining the nature of Benjamin’s benefits. Supplemental Security Income, which Benjamin received, is a means-tested benefit. This differs from Social Security Disability, which is a non-means-tested program. A means-tested benefit is based on the resources or income of the recipient. Social Security Disability benefits, on the other hand, are financed through payroll deductions, and represent money that an employee has earned throughout his employment. They are a substitute for earned income. Conversely, the purpose of Supplemental Security Income is make sure the recipients income is maintained at minimum level necessary to survive.

Supplemental Security Income benefits are exempt from all legal processes, and cannot be attached or garnished for alimony or child support. Social Security Disability benefits, on the other hand, may be attached or garnished to enforce alimony or child support obligations. In Burns v. Edwards, the evidence showed that Benjamin was completely disabled with schizophrenia, and was totally indigent, surviving on Supplemental Security Income alone. If the courts required child support to paid when the parent’s only source of income was Supplemental Security Income benefits, and that parent did not have the ability to earn any other income, it would contravene the very purpose of Supplemental Security Income in the first place.

Similarly, in the 2007 case of Crespo v. Crespo, the New Jersey Appellate Division held that a non-custodial parent is not required to pay child support when he or she is completely disabled and indigent, and survives at a legislatively-established minimum level of subsistence on Supplemental Security Income alone. However, a child support obligation may be entered against a parent who receives Supplemental Security Income, where that parent is earning or has the ability to earn additional income. But if the disabled parent does not receive any other income, and no other income can be imputed onto him or her, Supplemental Security Income should not be included in the child support calculation.

Social Security Disability benefits work a little bit differently, but in the end it boils down to the parent’s ability to earn income, and the evidence submitted to support that contention. This is a fact specific inquiry and must be based on credible evidence, including medical records and reports specifying the nature and extent of the disability. In the 2012 case of Gilligan v. Gilligan, the Honorable Judge Jones of the Superior Court of New Jersey, Family Part of Ocean County, found that Golian v. Golian, does not hold that an award letter of Social Security Disability, by itself, is enough for a Family Part court to conclude that a party incapable of earning income or working in capacity to pay child support or arrears. According to Gilligan, a party claiming that he or she cannot work because of a disability, must submit more proof to the court than just a Social Security Disability award letter to succeed.

Julie and Michael Gilligan got divorced in 2002. When the divorce was entered Michael had an obligation to pay $ 190 a week in child support. This obligation would increase to $ 237 a week due to cost of living adjustments. Michael would go on to miss many support payments, and accumulate substantial child support arrears over the next several years. He filed a motion requesting a court order to terminate his child support obligation, and reduce his responsibility to pay back his unpaid child support arrears to $ 5 a week. He based his motion on the fact that the Social Security Administration had declared him disabled. At the time of his motion, Michael owed $ 90,000 in unpaid child support.

Even though Michael attached the Social Security Disability award letter to his motion, the award letter failed to state the specific nature of his disability. He also failed to provide any medical records or reports that might have provided some insight his diagnosis, or his ability or inability to work and earn an income. The only thing that the Social Security Disability award letter noted was that he is entitled to $ 1136 every month in Social Security Disability benefits because of a disability. There was no proof that he ever provided his ex-wife with an authorization allowing her to get copies of his records directly from the Social Security Administration to review in the case. The Family Part held that a party responsible for paying child support must submit more proof then just the Social Security Disability award letter to show the extent and nature of a disability. Then, if the moving party provides the award letter, in addition to sufficiently supporting medical documents specifying the disability, then the evidentiary burden shifts to the opposing party to prove that the moving party is in fact not disabled and has the ability to earn income. If the moving party failed to meet this burden of proof, then a Family Part court can, under the sound discretion of the judge, impute income on to the moving party.

Please reach out to my office if are dealing with issues regarding child support.