Social Security & the Family Law Practitioner
Social security can come up as an issue for consideration in at least four instances: bifurcation, child support and spousal support, property division, and paternity. This article will deal with Social Security Retirement (SS), Social Security Disability (SSDI), and Supplemental Security
Income (SSI) This article will briefly highlight some tips related to social security for the family law practitioner.
Former spouses may be eligible for derivative benefits based upon working spouse’s work record if they were married for 10 years (measured from date of marriage to the date the marriage status is dissolved). This may be a reason not to agree to an early termination of marital status- be sure to advise the client if it’s close. Failure to do so may be considered malpractice. Consider requesting a delay in entry of judgment to allow for the tenth anniversary of the marriage
Where a child’s parents are not married, the child will not be entitled to survivor benefits arising from father’s death unless a judgment of paternity is entered prior to death or the father was living with or contributing to the support of the child at the time of the death [Casserino v. Sullivan]
Division of Property
Social Security benefits are NOT a divisible property interest (Marriage of Nizenkoff and Flemming v. Nestor and IRMO Kelley). Rationale: SS is insurance rather than deferred compensation for past labor.
However, a former spouse may receive their own benefit OR up to 50 % of their ex’s benefit without reducing the beneficiary’s receipt if the following conditions are met:
- Must have been married for 10 years
- Former spouse must not remarry prior to age 60 (a remarriage before 60 terminates the right to derivative benefits. If the second marriage does not make it 10 years, the former spouse cannot collect benefits from either spouse. If they do not have a sufficient work record, they may not receive any benefits)
- Former spouse must be age 62
- Former spouse gets a benefit only if their own benefit is lower (not equal to or greater) than the worker benefit or if the former spouse is eligible for greater benefits via someone else’s work record.
- Derivative benefits are available if the former spouse qualifies for SSDI or retirement SS benefits. However, SSI benefits are not available to former spouses because SSI is needs based (means test used) not on a work record.
You may have multiple former spouses as long as the test above is met. This does not lower the benefit of the working spouse or any of the other former spouses.
If the working spouse has not applied for retirement benefits, but can qualify for them, former spouse can receive derivative benefits on their record if they have been divorced for at least two years.
If worker spouse dies, a former spouse receives 100% of the benefits of the worker spouse as a “surviving spouse”. This also applies to every qualifying former spouse.
Child and Spousal Support
Is it Income for Support?
- Yes, if SS or SSDI – Family Code section 4058 includes social security benefits as income for child support. While spousal support does not have a parallel definition of income, it is applied the same way for temporary spousal support orders. Disability/retirement/survivor benefits are income for calculating support
Marriage of Nizenkoff: Both primary and derivative benefits are includable for the purposes of determining spousal support.
- No if SSI – SSI: Not income for child support because SSI is a means based test (like welfare) [Family Code section 17516; Elsenheimer v. Elsenheimer] For the same reason, SSI is generally not considered income available for support when calculating spousal support
Is it Taxable?
Social Security income should generally be put in as “other non-taxable income” in the Dissomaster. However, social security retirement income is sometimes taxable so this should be verified. SSI and SSDI are non-taxable income
If the disabled parent is the obligor for child support, the benefit is a credit against the child support obligation [Family Code section 4504; IRMO Denney]
Excess of social security derivative benefits over current support may be applied to arrearages [IRMO Hall and Frencher] This is a complete departure from the prior rule articulated in IRMO Robinson. CCP section 695.211 provides guidance on the order of preference related to payment of outstanding obligations.
Children may be eligible for their own benefits (if disabled) or derivative benefits from a parent.
If the custodial parent or other child support obligee refuses to cooperate or apply for benefits when the child(ren) are otherwise eligible the noncustodial parent is entitled to a credit against child support in the amount of the benefit the children would have received (subject to proof). The A custodial parent may receive benefits on behalf of a child they provide care for are for (age 0-16) if they are a child of the spouse or ex-spouse who qualifies for SSDI
Adult disabled child: before age 22 may be eligible for child's benefits if a parent is deceased or starts receiving retirement or disability benefits. This is considered a "child's" benefit because it is paid on a parent's Social Security earnings record.