What You Need to Know About the Social Security Disability Exception
An area of domestic law Ciyou & Dixon, P.C. attorneys observe clients sometimes very upset relates to Social Security Disability payments. For a long time, the Child Support Rules and Guidelines and controlling case law was vague and undeveloped as to whether such lump-sum awards could be applied to child support at all.
In fact, despite the breadth of decisional law, this matter was not resolved in any definitive way until 2006. At this time, the Indiana Supreme Court issued its Brown decision (Brown v. Brown, 849 N.E.2d 610 (Ind.2006)). In Brown, the Indiana Supreme Court considered crediting a lump-sum SSD benefit payment against a child support arrearage and toward future support obligations.
The Supreme Court allowed the SSD benefit to be considered to future support obligations. However, it held that a parent must petition the trial court to modify child support viz-a-vie SSD and any award could only be credited retroactively to the date the parent filed his or her petition to modify support.
In fact, this is one of the rather bright line rules in child support modification: A trial court may make a retroactive modification of child support based on the litigant (payor) meeting his or her burden under the modification statute (MacLafferty v. MacLafferty, 829 N.E.2d 938 (Ind.2005)). But this modification may only be retroactive back to the date of filing of the modification petition (Donegan v. Donegan, 605 N.E.2d 132 (Ind.1992)). If this is months or years after the change, this may still leave a parent with substantial child support arrearage.
Critically, while this is still a rather rigid rule as to retroactive modification of child support, a slight exception was carved out with a revision to the Indiana Child Support Rules and Guidelines effective January 1, 2010 and its statutory authority to modify child support (Ind.Code § 31-16-8-1). Under Indiana Child Support Guideline 3, it specifically addresses SSD payments.
This is further elucidated in the commentary, Comment 3(G), which provides, in relevant part, “A lump sum payment of retroactive Social Security Disability benefits shall be applied as a credit against an existing arrearage if the custodial parent, as the representative payee, received a lump sum retroactive payment, without the requirement of a filing of a Petition to Modify Child Support.”
Clearly, this should not be the course taken if possible, and a child support modification petition should be filed early on with a change in circumstances that triggers the statute. Where it is not, however, at least in the case of a child support arrearage, it appears there is a logical exception.
This money, obtained by disability for the benefit of the children during a period approximating the time support was not paid, is a logical exception. Presumably, if the parent who is disabled had worked during this period of time, he or she would have paid something akin to the child’s portion of his or her disability to support.
Child support is an emotional area and hot bed of litigation. As domestic advocates, we hope this blog post helps you understand the issues a little better to be a more informed legal consumer. Ultimately, this will help you help your lawyer to the end of your legal objectives. If this blog post has done so, it has met its objectives.
Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou.
