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Social Security Child’s Benefits and How They Factor Into Child Support Calculations In Florida

Posted by attorney John Tucker

On January 6, 2010, Florida's Third District Court of Appeal (‘DCA’) addressed a lingering issue in child support calculations: how to treat Social Security Child’s Benefits paid as a result of a disability suffered by one of the former spouses. Very often in these cases, one former spouse is approved for Social Security Disability under Title II of the Social Security Act or receives Social Security old-age benefits, and that person’s minor children receive a Child’s Benefit which is sent directly to the former spouse, who is often the majority time sharing parent. This article explains how the Third DCA’s decision in Valladares v. Junco-Valladares, [1] aligns 4 of the 5 DCAs and succinctly provides a roadmap for how to factor these payments into child support calculations. [2]

By way of background, the minor child(ren) of a person who is adjudicated disabled under Title II of the Social Security Act or who reaches retirement age is/are entitled to receive Child’s benefits based on their parent’s disability or entitlement to old-age benefits. [3] Eligibility is based upon a parent-child relationship, dependency and unmarried status of the child. [4] The child must also be under age 18 or still in the 12th grade, whichever occurs later. [5] It is important to note that there are no Child Benefits under the Social Security Administrations indigent disability program, Supplemental Security Income (‘SSI’) found in Title XVI of the Social Security Act.

If there is only 1 qualifying minor child of a person receiving Social Security Disability or Retirement benefits, that child will receive a Child’s Benefit equal to 50% of the primary account holder’s benefit. [6] The total amount of benefits that multiple children may receive is limited to a maximum determined by a formula in Social Security’s governing policies, currently 50% more than the disabled or retired person’s monthly benefits (i.e., 150% of the disabled or retired person’s benefit amount). [7] As a general rule, that means that multiple children will evenly split the 50% Child’s benefit. [8] For example, if a father of 2 children is approved for a Social Security Disability benefit of $2000 per month, his 2 children each will receive $500 per month (for a total of $1000 – 50% of $2000) until they become 18 or graduate high school, whichever occurs later. When the oldest child no longer qualifies due to age, the younger child will receive the full 50% benefit ($1000) per month until they turn 18 or graduate from high school.

There are 2 child support issues that arise when Child’s Benefits are paid to the children of someone receiving Social Security benefits: First, which spouse should have the Child’s Benefits included in their income for purposes of calculating child support obligations? Second, if Child’s Benefits are sent directly to the former non-disabled spouse, does the disabled spouse get a credit toward any child support obligation that is owed? Unfortunately, the child support guidelines found in Florida Statute §61.30 do not address these issues.

In Valladares, the former husband began receiving Social Security old-age retirement benefits, and the 2 minor children from the marriage received a combined Children’s Benefit from Social Security in the amount of $1430 per month ($715 to each child). [9] The Children’s Benefit was paid directly to the former wife. The trial court refused to factor in the Children’s Benefits when it calculated the husband’s child support, instead including the $1430 in the wife’s income for purposes of calculating support. [10] The Court also did not offset the husband’s child support obligation by the amount of $1430 paid by Social Security to the former wife on behalf of the children based upon the husband’s earnings record. [11]

On appeal, the Third DCA, relying upon the Fourth DCA’s 2001 decision in Sealander v. Sealander, [12] held that both the primary Social Security benefit received by the husband and the Children’s Social Security benefit paid to the mother must be included as part of the husband’s income for purposes of determining the amount of child support owed. [13] The court also held that the $1430 in Child’s Benefits paid by Social Security must also be used to offset the husband’s child support obligation. [14] The Children’s Benefit is “deemed to be paid on the husband’s behalf" and the “husband is responsible for paying the remainder of the monthly child support obligation." [15]

This conclusion is not new. In fact, the issue has come up for years. In addition to Valladeres and Sealander, the First DCA’s 1990 decision in Williams v. Williams [16] and the Second DCA’s 2000 decision in Wallace v. Dept. of Revenue [17] reached the same holding. As the Second DCA stated the rule in Wallace, a case which involved Social Security Disability:

In sum, when a parent is receiving social security disability income due to a disability and, as a result, his or her children receive dependent benefits, the total benefits received by or on behalf of that parent are attributed to the disabled parent as income in the child support guideline calculation. The dependent benefits are then credited toward the disabled parent’s obligation, that is, they are a payment of the obligation on behalf of the disabled parent. If the benefits are less than the support obligation, the disabled parent must pay the difference. If they are more, the benefits pay the obligation in full, but any excess inures to the benefit of the children. [18]

Now that 4 of the 5 District Courts of Appeal have ruled on this issue over a 20 year period, hopefully any remaining confusion has been eliminated.

[1] ___ So. 3d ___, 2010 WL 22716; 35 Fla. L. Weekly D134 (Fla. 3d DCA January 6, 2010).

[2] This article does not address the receipt of Supplemental Security Income (‘SSI’) benefits by a minor child based upon the child’s disability. As a general rule, those are not credited against a parent’s child support obligation. See Ford v. Ford, 816 So. 2d 1193 (Fla. 4th DCA 2002).

[3] 20 C.F.R. § 404.350(a).

[4] 20 C.F.R. §§ 404.350-404.368.

[5] 20 C.F.R. §§ 404.367, 404.352.

[6] 20 C.F.R. § 404.353(a); Social Security Administration Program Operations Manual System(“POMS") § RS 00203.025

[7] Under current law, the family maximum is 150% of the disabled or retired person’s benefit amount. 20 C.F.R. § 404.403(d-1). See POMS §§ RS 00615.730, RS 00615.736.

[8] 20 C.F.R. §§ 404.304(d), 404.403.

[9] 2010 WL 22716 at *2.

[10] Id. at *5.

[11] Id. at *1-2.

[12] 789 So.2d 401 (Fla. 4th DCA 2001). NOTE: Sealander receded from Gomez v. Gomez, 736 So. 2d 119 (Fla. 4th DCA 1999), which erroneously relied on statutory language in Fla. Stat. §61.30 to reach a different conclusion.

[13] 2010 WL 22716 at *5.

[14] Id.

[15] Id.

[16] 560 So. 2d 308, 310 (Fla. 1st DCA 1990).

[17] 774 So. 2d 804, 808 (Fla. 2d DCA 2000).

[18] Id.

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