How Divorce Impacts A Disabled Child’s SSI

By Regina Brandow, Esq.
disabledFamilies and individuals impacted by disabilities quickly grow accustomed to delving deep into the rules and regulations of government programs to ensure maximum participation in the programs to which they’re entitled. However, the complexities of these rules can make them confusing, thus the families and the programs can suffer. Take, for example, the rules that govern social security income (SSI) and its relationship to child support payments.

An adult child (age 18 or over) with a disability may qualify for social security income SSI even though they may be receiving child support. The SSI program functions as an income source of last resort for elderly or disabled individuals, including blind or disabled children. ‘Any time the adult child lives with two parents the potential for a reduced SSI grant based on the inability to pay “fair share” is highly likely unless the parents are charging rent via a room and board agreement.

For those single parents with child support, the Social Security Administration (SSA) excludes one-third of child support payments from countable income. The remaining amount is considered unearned income and it offsets the monthly benefit amount. That reduction in benefits too often comes as an ill-timed surprise. Not many families with children with disabilities, who have gone through or are possibly considering divorce, are aware of the impact that the mandated child support payments may make on their child’s monthly SSI benefit. Under current law, the SSA considers two-thirds of child support payments received in a month on behalf of a child on Supplemental Security Income (SSI).

This policy can have a major negative impact on adult children who receive monthly SSI benefits. The non-custodial parent makes the payments and in New York these payments can continue up until the adult child reaches the age of 21. When an eligible adult child receives child-support payments (including arrearage payments), the payments are considered unearned income to the child.  According to the SSA POMS #00830.420, SSA policy excludes the one-third of the amount of child support that the eligible child receives in the form of food and shelter, but the remaining two-thirds are now unearned income to the child. Any in kind child support payment that is not for food and shelter (e.g. for health insurance) is not income to the child.

Generally, public policy is best served if the absent (non-custodial) parent pays child support. However, the SSA policy, on its face, seems to serve as a disincentive for the custodial parent to pursue enforcement of the child support. According to SSA, though, the one-third deduction is intended to encourage the non-custodial parent to pay support as that parent will see the child benefit rather than seeing the federal benefits be reduced by the entire amount. Of course, children with larger child support payments have higher net unearned income than those with smaller payments; SSI is a means tested program for the adult child. It considers the assets, income and resources of the adult child. When a parent receives the current child support payments for an adult child, the countable income is computed as belonging to the child despite the fact the adult child may never have received it.

The real problem is the lack of clarity for too many parents already dealing with the stress of divorce. Too many parents find out when they are assisting their adult son and daughter in applying for SSI. Brian McIlvain – Director of Employment and Benefits Advisement Services from the Suffolk Independent Living Organization (SILO) says “Divorced single parents who are providing the adult child with a disability shelter and support with daily living feel they are not receiving a fair share of benefits as compared to non-divorced parents who are receiving the full benefit.“

Whether that’s true or not, it highlights the need to know the nuances of SSI and other government programs if you have a child with a disability and are contemplating divorce. Advance knowledge of the regulations will help the parents draw up child support payments and or other payments accordingly. It’s important to note that SSA procedures require a review of the actual legal document that describes the support payments. So it’s important that families impacted by divorce have these documents prepared by a family law attorney familiar with the SSA policy.

Lloyd C. Rosen, Esq. of the Law Firm of Wisselman, Harounian & Associates, P.C. states, “Unless there’s some kind of agreement otherwise, these situations end with a child receiving a diminished amount of SSI,” says Lloyd “So it’s imperative to have all the relevant information and to plan carefully with an experienced family law attorney.”

As is always the case with families coping with disabilities, knowledge is power. A carefully considered and carefully worded child support agreement will eliminate most surprises and allow for better implementation of government programs. The transition to adulthood is a crucial time in the care of a child with disabilities. New costs are often incurred along with the need for additional services and technologies. A carefully worded child support agreement is the best way to provide the additional funds without jeopardizing the adult child’s SSI.

 

Regina Brandow of Brandow Law concentrates her practice on Elder Law, Special Needs Planning, and Trust and Estates and is an advocate for families and individuals with disabilities. Based in Stony Brook, NY, she can be contacted at (631) 675-2540 or regina@brandowlaw.com.

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