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    Family Law Legal Research Blog

    Social Security Dependency Benefits and Alimony

    Posted by Brett R. Turner on Wed, Jul 18, 2018 @ 12:07 PM

    Brett Turner—Senior Attorney, National Legal Research Group

         Persons who suffer from serious disabilities can apply for and receive Social Security Disability ("SSD"). When a parent receives SSD, dependency benefits are also paid to the parent's dependents.

         In the context of child support, a majority of states consider the noncustodial parent's SSD dependency benefits to be a form of child support, paid to the child from amounts previously withheld from the income of the parent. They are treated as income for purposes of child support, but the noncustodial parent then gets a dollar-for-dollar offset against child support for the amount of dependency benefits received by the child. See, e.g., Sealander v. Sealander, 789 So. 2d 401 (Fla. Dist. Ct. App. 2001); Mooneyham v. Mooneyham, 420 So. 2d 1072 (Miss. 1982); Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994). See generally Laura W. Morgan, Child Support Guidelines: Interpretation and Application § 4.07[J][2] n.117 (2d ed. 2013).

         Does the same offset apply to alimony? In Harris v. Harris, No. 2016-CT-00532–SCT, 2018 WL 653178 (Miss. Feb. 1, 2018), the husband agreed in a property settlement agreement to pay the wife $2,755 per month in alimony. After the divorce, the wife began receiving $1,035 per month in dependency benefits, based upon the husband's disability. The husband argued that he should receive an automatic $1,035 reduction in his monthly payment, without any need to prove changed circumstances, because the $1,035 payment to the wife was essentially another way of using his earnings to pay alimonyCa form of substantial compliance with the alimony award. The trial court agreed, and the Mississippi Court of Appeals affirmed.

         But the Mississippi Supreme Court reversed. When dependency benefits are paid to a child, they are paid to the parent who earned them if both parents live together. If the parents separate, the check is then sent to the custodial parent. Thus, where the noncustodial parent earned the benefits, for every dollar in dependency benefits paid to the custodial parent, the noncustodial parent receives one dollar less.

         But disability benefits paid to a former spouse are different. The wife's successful application for benefits did not cause any drop in the husband's benefits. Rather, the wife received an entirely new $1,035 which had never before been awarded to either spouse. Because the wife's receipt of benefits did not cause the husband to lose an equivalent amount of benefits, the court held that the dependency benefits were not simply a new method for paying alimony. Therefore, the benefits were not a form of substantial compliance with the existing alimony order. The court cited decisions from several other states reaching the same result.

         The benefits were a new source of income to the wife, of course, and they could therefore constitute a material change in circumstances. (Mississippi is among those states permitting modification of agreement-based support unless modification is expressly waived.) But there is no automatic right to reduction. The case was remanded for application of the material-change-in-circumstances test.

    Topics: family law, Disability, alimony, dependency benefits as child support, Social Security benefits

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