It is often the case that when a parent receives SSDI benefits that the child receives a derivative benefit. The Court often considers SSDI benefits intended for the child when setting a child support order. If your child receives SSDI benefits it is important to know how these benefits can affect a child support order for both the payee and the payor.
First, it is important to note that the court does not have to consider the benefits intended for the child in setting the child support order, but may do so. DCF 150.03(5) states:
“The court may include benefits received by a child under 42 USC 402(d) based on a parent’s entitlement to federal disability or old-age insurance benefits under 42 USC 401 to 433 in the parent’s gross income and adjust a parent’s child support obligation by subtracting the amount of the child’s social security benefit. In no case may this adjustment require the payee to reimburse the payer for any portion of the child’s benefit.”
In addition to the above referenced code, the Wisconsin Department of Children and Families has published Child Support Bulletin No.: 13-02 dated February 7, 2013, which provides a more extensive explanation of the policy of considering the child’s benefits and provides several examples for calculating how the benefits affect the support order. Child Support Bulletin No.: 13-02 can be found at the following link:
In order to understand how the child’s benefits will affect your case the court must first determine which parent receives the child’s benefit, and whether the placement schedule is a primary placement schedule or shared placement schedule. These two elements will determine how the support order is set. The Child Support Bulletin No.: 13-02 will provide examples for how support will be calculated for both primary placement cases and shared placement cases.
It could be the case that there are compelling reasons why the court should not consider the child’s SSDI benefit in calculating a child support order. Some reasons might include the following:
- The income available to support the child is significantly lowered in one household before considering the benefit.
- The physical, mental, and emotional health needs of the child.
- The educational needs of the child.
If the child’s benefit is increased or decreased this could be considered a substantial change in circumstances that warrants modification of the child support order. The child support order will not be automatically increased or decreased because of a change in the child’s SSDI benefit. Either parent can file a Motion to Change Support to ask the court to modify the support order.
If you have questions regarding calculating or modifying your child support order, or any other family law matter, contact one of the experienced family law attorneys at Lawton & Cates.