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Is IHSS income I collect on behalf of my disabled son considered when calculating child support?

San Jose, CA |

I'm receiving IHSS support through the Waiver Plus Program and Protective Supervision on behalf of my autistic son. California State Law and Federal Law say this is exempt income from personal income tax (IRS Sec 3121(b)(3)(B). I also receive a small check from Social Security under SSI for my son and that's based on my current support for him AND the IHSS I receive. I had a family law lawyer at the courthouse heckle me about my IHSS being attributed to the child support calculation but MY family lawyer assures me that this is not that kind of income to be used in calculating my percentage. Who is right here? Right now we have an agreement to not have any of the IHSS considered but now my ex wants to change the agreement. Could you please clarify what is legal?

Attorney Answers 1

  1. While reasonable attorneys can disagree, I am of the opinion that your IHSS is considered "income" for calculating child support. As I understand it, you are paid an hourly wage for a certain number of hours per week to care for your son. That work could be outsourced to someone else, but typically a family member provides the services needed--that is the limited knowledge I have on the IHSS program.

    Just because something is not considered "income" for purposes of the IRS does not mean that a family law judge cannot consider it "income" for calculating child support. The definition of "income" under California law is more broad than the definition of "income" as defined in the IRS tax code, and it is not binding on a family law judge in California.

    There is a rather complicated explanation for why this is the public policy of the State of California, but the short and simple explanation is we want children to have as much child support as they are entitled to under the guideline formula.

    If you found this answer helpful, let me know by clicking the "Mark as Good Answer" button or "Best Answer" at the bottom of this answer. By answering this question, the Law Offices of Cathleen E. Norton does not intend to form an attorney-client relationship with the asking party. The answers posted on this website should not be construed as legal advice. The Law Offices of Cathleen E. Norton does not make any representations about your family law matter, but rather, seeks to provide general information to the public about family-law related matters. You should consult with an attorney to discuss the specific facts of your case. Thank you.

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