Social Security Disability Benefits in an Illinois Divorce

 Posted on October 01, 2013 in Family Law

In an Illinois divorce, child support may be paid from many types of income received by the other parent not having custody, such as Social Security disability.

Social Security Benefits

The father or mother of your minor child who receives retirement Social Security benefits has income that can be used to pay child support. But, Social Security disability benefits reduce the paying parent's child support obligation.

Under Social Security law, a dependent child may claim "auxiliary benefits" when a disabled parent receives SSDI benefits. These payment are usually received by the custodial parent.

In Illinois, the law provides that these auxiliary benefits received by the custodial parent due to the disability of the paying parent reduce or "offset" the child support owed by the paying parent for the period that such benefits are received. [In re Marriage of Henry, 156 Ill2d 541, 622 N.E.2d 803 (1993).]

In the Henry case, the paying parent asked the trial court to reduce his child support payments because of these SSDI payments. The court held that Social Security dependent disability benefits replace support the child loses upon the disability of the parent wage earner, responsible for the child's support.

Nationwide SSDI Child Support Cases

For purposes of child support, Social Security benefits received by a parent constitute income in many states, e.g.:

• In re Marriage of Simon, 856 P.2d 47 (Colo. Ct. App. 1993) - Social Security disability is income)
• Forbes v. Forbes, 610 N.E.2d 885 (Ind. Ct. App. 1993)  - Social Security disability benefits are income)
• In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1991)
• In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992)
• In re Marriage of Callaghan, 19 Kan. App. 2d 335, 869 P.2d 240 (1994)
• In re Marriage of Durbin, 251 Mont. 51, 823 P.2d 243 (1991)
• In re Marriage of Stringham, 124 Or. App. 626, 863 P.2d 504 (1993)
• Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994)

On another note, Social Security benefits received by a child on account of the child's own disability do not reduce his parent's support obligation. The courts have held that the parents must continue their support obligation, rather than shift the burden to the public.

For more information on child support or SSDI benefits, contact knowledgeable Illinois attorneys at Martoccio & Martoccio. Call our Hinsdale office 630-920-8855 for a free consultation.