my friend was recently awarded $770.00 per month in disability social security . the court is taking $575.00 of it in child support. can they take this much?
Usually, your Social Security is exempt from garnishment. One exception is for child support.
This response is meant to be information only and should not be considered to be legal advice. This information is not meant and should not be construed to be the formation of an attorney client relationship. I practice Virginia Workers compensation law and Social Security Disability law.
You need to ask this in the family law forum. While your question does not state this, I imagine that the amount of child support was set when your friend was still working. Therefore if there has been a change in income, they need to hire an attorney and go back to court to get the amount change to reflect their new income.
Actual legal advice can only be provided by an attorney licensed in your jurisdiction, with experience in the area of law regarding your question. The information provided is for informational purposes only and is not legal advice.
Generally, Social Security Disability (SSD) payments under Title II of the Social Security Act are not subject to attachment or other legal process, pursuant to section 207(a) of the Act (42 U.S.C. 407(a)). No other provision of law can override this protection "except to the extent that it does so by express reference to this section." Section 207(b) of the Act, 42 U.S.C. 407(b).
SSD benefits are attachable for child support purposes, because section 207 of the Act is expressly overridden by section 459(a) of the Act (42 U.S.C. 659(a)). Section 459 provides that payments from the Federal government, the entitlement to which is based upon remuneration for employment, are subject to income withholding or other legal process brought by a State IV-D agency or an individual obligee for purposes of enforcing child support obligations. Section 459(h)(1)(A)(ii)(I) of the Act (42 U.S.C. 659(h)(1)(A)(ii)(I)) specifies that payments under Title II of the Act, which includes SSD payments, are considered to be based upon remuneration for employment. Reading these sections together provides that child support is one of the few obligations that can attach to your Social Security disability check. As to the amount taken, as someone else noted, the court may not be able to take as much as they are. Federal law, 15 USC 1673 , limits garnishment regarding child support to a maximum of 65% in most cases. Your friend needs to get back to court to show the court that he is only receiving $770 per month in Social Security disability and hopefully the judge will reduce the amount taken from it for child support.
Disclaimer: the above does not constitute legal advice and is only an opinion of the author as to current law. You should consult an attorney with questions about your particular situation.