By Melissa Linebaugh , J.D. University of Baltimore School of Law
Updated by Diana Chaikin , Attorney Seattle University School of Law
Nolo was born in 1971 as a publisher of self-help legal books. Guided by the motto “law for all,” our attorney authors and editors have been explaining the law to everyday people ever since. Learn more about our history and our editorial standards.
Each article that we publish has been written or reviewed by one of our editors, who together have over 100 years of experience practicing law. We strive to keep our information current as laws change. Learn more about our editorial standards.
When you become disabled and can no longer work, it can become difficult to meet financial obligations—especially for parents who are responsible for child support payments. Once you begin receiving Social Security disability, these benefits are likely to have an impact on any current child support duties you may have. Keep in mind that Social Security is a federal disability program, while child support obligations are governed by state-specific law. All states have formulas in place for modifying a child support order, generally based on a combination of the parents' "changed circumstances" (such as a significant decline in income) as well as the child's needs.
Social Security administers two types of benefits—Social Security Disability Insurance (SSDI) for people who've earned enough work credits to become insured under the program, and Supplemental Security Income (SSI) for people who have limited means.
Whether your child support can come out of your disability check (be "garnished," in legal terms) depends on the type of benefit you're receiving. Additionally, states differ on whether SSDI or SSI benefits count as income for purposes of modifying your child support order to lower your payments.
Under the Social Security Act, the agency is permitted to withhold current and continuing SSDI payments in order to enforce your child support obligation (42 U.S.C. 659). If you disagree with the garnishment, you should contact an attorney in the jurisdiction where the court issued the child support order, not the Social Security Administration.
Because SSDI is an employment-based benefit—meaning the amount of SSDI you receive is calculated from your wage history—most states include SSDI payments as "income" when determining how much you owe in child support. So, you may be eligible for a child support modification if your SSDI benefits are lower than your income when the order was issued.
How Garnishment Withholding Is CalculatedSSDI payments can be garnished in different ways. The garnishment order may specify a numerical amount, or it may be based on a percentage of your disability payments, as limited by state law or the federal Consumer Credit Protection Act (15 U.S.C. 1673(b)). Under the federal Act, as long as you're current on your child support payments, the amount of garnishment can't exceed 50-60%, depending on how many children are involved.
SSI benefits, on the other hand, can't be garnished to make child support payments (5 CFR § 581.104). That's because SSI is intended to help you meet your basic needs, such as food and shelter.
Most states don't count SSI payments as income for child support purposes. (Illinois law explicitly lists SSI as income, while Florida statute includes "disability benefits" more broadly.) Because people who qualify for SSI must show that they have little in the way of income or assets, it shouldn't be too difficult for an SSI recipient to get a child support order modified.
Child support arrears means any unpaid or past-due support payments you owe. If you have child support arrears that stacked up while you were waiting to be approved for Social Security disability, you may have a portion of your back due benefits withheld in order to cover them. Federal law allows for a larger percentage (55-65%) of garnishment if your child support payments are 12 weeks or more in arrears.
Current child support takes priority over child support arrearages. Garnishment orders for child support are no longer paid on a ‘first come, first served" basis—some money must be paid on each order for current child support if there is more than one withholding order (5 CFR 581.303).
To avoid garnishment, it's important that you keep up your child support payments until your support order has been modified to reflect your new income level on disability benefits. You could also face jail for failure to pay child support, even if you move out of the state that issued the order.
If you get SSDI, your child may be eligible for Social Security dependents benefits based on your earnings records. Either you or the other parent should apply for benefits for your child as soon as you're approved for SSDI (the SSI program doesn't provide any dependents benefits). Some states, such as Washington and Maryland, credit the amount of the benefits towards any child support obligations. So if you owe $400 per month towards child support and your child gets $250 per month in dependents benefits, you'd only be responsible for the $150 difference.
If you've just been awarded SSDI or SSI and need to make changes to the amount of child support you pay, you'll have to go through the court system that has jurisdiction over your case. This is usually, but not always, the state where your child lives. Below are some examples of how child support obligations might be modified after one parent has been granted disability benefits.
Doug is the noncustodial parent of two children. Before Doug became disabled, he was required to pay $1,110 per month in child support based on an income of $5,000 per month. Louisa, the custodial parent, was earning $2,000 per month. After Doug was awarded disability benefits, his income—which consisted solely of his SSDI payment—dropped to $2,000. Louisa's income remained the same. Based on this change, Doug's monthly child support was reduced to $520.
Melba is the noncustodial parent of one minor child, Aaron. Before becoming disabled, Melba earned $4,000 every month and was ordered to pay $675 per month in child support. When Melba began receiving $1,000 in SSDI benefits, she applied for dependents' benefits for Aaron. Aaron was granted $500 per month in SSDI. Based on this change, Melba had the $500 in benefits for Aaron credited towards her child support obligation, which was then reduced to $175.
Lemmy is the noncustodial parent of two children who previously paid $1,000 per month in child support. Following an accident at work, Lemmy fell on some hard times and applied for the needs-based SSI disability benefit. Lemmy was approved and began to receive $943 per month in SSI. Because SSI isn't counted as income in Lemmy's state and can't be garnished, he was able to get his child support greatly reduced to $57.
You'll need to ask for a hearing so that you can argue to have your child support obligation reduced to an amount you think is fair. Some factors that courts usually take into consideration when determining whether child support payments should be modified include the relative earnings of both parents, a change in childcare expenses, and custody arrangements.
If you get along well with your child's other parent, you can also arrange a modification between the two of you. Consider bringing a copy of your SSDI or SSI approval letter for review. When you come to an agreement, make sure to put it in writing and ask a judge to approve the change. You aren't required to get the courts involved, but it can be very difficult to enforce any modification if you don't.
Disability and child support are complex areas of law. Family law can vary considerably between states, and Social Security's many rules and regulations are difficult to wade through without experience. It's typically a smart idea to hire an attorney who can walk you through the process and give you sound advice on how to manage your disability benefits along with your child support obligations.