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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?

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Attorney answers 1

Posted

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.

Hillary Johns

Hillary Johns

Posted

I concur with Ms. Norton. After reading your question I actually re-researched it this afternoon and it really depends although it can be considered income in certain situations. You may want to refer to the Governor's proposed revisions to IHSS regarding this issue for 2012-2013. In addition, don't you already have a lawyer? It seems to me if you're represented by counsel that it would be more appropriate to address your concerns and any issues that you have with your counsel. I'm sorry that opposing counsel heckled you. That's inappropriate and unprofessional.

Asker

Posted

Thank you ladies for your help! I received some temporary help from a lawyer that offered advice for the initial paperwork and filing stages. Because I didn't list him as my attorney, the judge appointed counsel to go over the paperwork to make sure we agreed. My ex-husband and I initially agreed to everything that I wouldn't have IHSS counted as income because I didn't have a job (with our son on Protective Supervision, I don't have a choice but to stay home and help him) and our daughter was still not school aged but also battles autism though I don't get any county and state services for her yet. When the lawyer heckled me about the IHSS being support, my ex-husband thought I was trying to put one over on him and it all just went to hell from there. *Sigh* I wanted to bring this up with you all because I needed to know between my lawyer and the one appointed at court who was right. Am I correct in my understanding that IHSS is generally considered income but can be considered in certain situations? I failed to mention that I also have full legal and physical custody with the father only given visitation on every weekend. Would any of you recommend that I find a family law attorney with experience in special needs families & disabilities?

David Alexander Yomtov

David Alexander Yomtov

Posted

It's not clear whether you need an attorney with expertise regarding special needs, since you apparently already have custody orders that presumably address that. What you need is an attorney to make sure that your support calculations are based upon valid data. By the way, I want to clarify something, just in case: SSI is generally NOT included in a child support calculation. (I agree, however, that the IHSS payments would be factored in as income.)

Asker

Posted

Do any of you occasionally see the judge consider IHSS income and NOT factor it in for support calculation? The support obviously is going to my children whom I have full custody over so its not like they are not receiving any support...have you ever seen a judge consider other factors and be lenient in favor of the custodial parent with IHSS??

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