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Disability doesn’t end support obligation

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Q. My ex was injured at work a couple of years ago.  At that time, he had to stop working and got a reduction in his child support to next to nothing. He applied for SSDI but it took two years to get anything. I recently learned that he is now receiving $30,000 per year. Someone told me he probably also gets money for our son but, naturally, he has not been forthcoming with this information and is still fighting with me about paying any part of Jake’s braces and extracurricular activities, which are his only support obligations now. He hasn’t even offered to take Jake more now that he isn’t working to help out and I am still paying for after-school child care.

Can I ask the court to make him pay some child support now that he has some income even if it isn’t much? I don’t know how this works but I assume I shouldn’t just believe him when he says he does not have to pay because he is disabled.

A. You are right not to believe him as he is not giving you the full picture. You should file a complaint for modification right away asking that the court enter a new child support order now that he is receiving disability income. There is a case on point that says if he receives SSDI, he has an obligation to pay child support on that money. The sooner you act on this point, the sooner you will get support reinstated. Also, be sure to ask that the order be retroactive to the date he was approved for benefits.

Once you serve the summons and complaint, you should send him a request for documents. In your request ask for his application and all communications with Social Security regarding his application and receipt of benefits. Ask in particular for all documents reflecting any retroactive award he may have received. Often times, because it takes so long to get the application processed and approved, the benefits are awarded retroactively to the date of the application. Finally, ask for the breakdown between how much of his benefits are awarded directly to him and how much are awarded on account of Jake. SSDI recipients with minor dependent children typically receive a child benefit as part of the monthly payment.

Once you know what he received for benefits and retroactive award, you can ask the judge to make further orders. For example, if your ex received a retroactive award for Jake at a time when his support had been reduced as described, you should ask for the retroactive check for your son. At the very least, the judge should order that the ongoing monthly checks attributed to Jake be paid to you as child support.  And, if the application of the child support guidelines on the amount of the award attributed to your ex results in more support than Jake’s benefit, your ex should be ordered to pay the difference.


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