Child support is a very tricky situation. For those who are dealing with the process, you probably think it’s fairly straight forward. The courts says the non-custodial parent owes child support and therefore they should pay. Unfortunately, it gets a little complicated when the non-custodial parent is not working and is going through the disability process. This situation takes on a whole new life.
So the big question is “Can your ex get out of paying child support while they are going through the disability process?”
Unfortunately, as an attorney, I will always says “It depends”. Here are a few things you should consider:
1) Child support is based on STATE law. So it’s important to know how the states view someone who applying for disability.
2) Typically the state COURTS modify child support obligation. I think some people worry SSA will modify child support obligation because they are applying. Unfortunately, that’s not how it works. The responsibility typically falls on the state court that issued the child support order.
3) The Courts don’t always know if the person is applying for disability. SSA doesn’t tell the state court that someone is applying for disability. So, unless the non custodial parent brings this information to the attention of the court, there is no way for them to know.
4) Child support is a state FAMILY LAW question not a federal DISABILITY LAW question. I get a lot of questions from people wanting to know if the non-custodial parent can get out of paying child support because they are applying for disability. I feel bad telling them that this is a family law question because in essence, it is.
Family law is tough and child support is even tougher when you’re dealing with someone who you believe is not fulfilling their obligation. Just understand that this is a state law issue. Not a federal disability law issue.
You have gone through a long and difficult process of getting disability. You have finally received it. You know that you’re going to have your disability reviewed every few years but you are willing to accept it.
But now, you have a new worry. Since nobody really understands why you’re disabled, you wonder if someone is going to contact SSA because they THINK you’re not disabled. You are getting disability for something that may not be readily understood. However, since someone sees you going to the grocery store, or the post office, or church, they think you’re taking advantage of the system. Now, not only are you worried about keeping your benefits, you’re also worried that you may be investigated by SSA because someone who doesn’t know anything about you condition reports you because they THINK you may be committing fraud.
Unfortunately, the harsh reality is that you have an ongoing duty to prove you’re disabled. This duty doesn’t stop after you’ve been found disabled. You, also, have to realize that, unless you tell everyone you meet about the conditions of your disability, you are going to have people who think that you are not disabled because of the things you are still able to do.
Is there anything you can do to stop this? Probably not. You can’t really control anyone’s perception of you or your condition. You can’t run into SSA and tell them that anyone who reports you for fraud is lying. The only thing you can do is be prepared to address any concerns that comes up.
You know you’re disabled. Just continuing proving it.
So, you find out that the non-custodial parent of your children is applying for disability benefits. You heard somewhere that the kids may be eligible for benefits. Even more, the non-custodial parent owes child support. Now, you’re thinking “how do I find out if my kids will start getting money?” or “how do I get child support from his disability?”.
Here are few things you need to know:
- The Government KNOWS already!! Child support is one of the few programs that actually can be garnished from Social Security. The Child Support Agency and SSA work closely with each other so SSA will notify Child Support regarding any approval for disability benefits.
- Some Disability programs may not be garnished! Typically, Supplemental Security Income is not normally garnished. So, if the parent gets SSI, you may not be able to garnish those money.
- It’s all in how you ASK your question. You don’t have RIGHT to know if the person is approved. SSA is not going to give you that information. However, if your CHILDREN are eligible to receive benefits based on the non-custodial account, they will typically take your children’s information and NOTIFY YOU once the children becomes eligible (in other words, if the non-custodial parent is approved and the kids are eligible, you can apply for the kids). All you have to do is notify SSA that you believe the non-custodial parent has applied for disability and you believe the children may be eligible. SSA will tell what you to do.
- You may not have any options so you need to speak with Child Support or a Family Lawyer. Sometimes, you may need to speak with a Family lawyer to best determine what you need to do if there is nothing to obtain from Disability.
I know it’s frustrating but if you don’t know if you can get any benefits for your children relating to the non-custodial parents disability, you need to either contact 1) child support agency, 2) SSA, or a 3) a family lawyer.
You may be surprised by the fact how your life has changed since you have become disabled. You do a lot of things differently. Don’t ignore these differences. Keep track of these little things. They help you paint a picture of how your life has changed. This information is important for you to provide to the Social Security Administration. Don’t just overlook it or brush it off. It is important.
After a long and tough wait, you finally get a letter in the mail from the Office of Disability Adjudication and Review (SSA Hearing Office) that lets you know that you have a “Notice of Hearing”. You are excited because you finally have your hearing date. Now, you are stressing because of two things:
- What does the letter mean?
- What do you do next??
Fortunately, the notice is fairly straightforward but here are a few things you should remember. If you have a NOTICE of HEARING, my discussion mirrors the way your notice is explained:
- It is important that you attend your hearing.
- Make EVERY attempt to attend the hearing. I know it’s tough if you don’t have any transportation but if, for some odd reason, you can’t attend, CALL them before the hearing date to see if they can make any accommodations. You DON’T want to miss this date.
- Bring a picture ID. I have actually seen people turned away because SSA couldn’t verify the person’s identity.
- Bring your CURRENT medications. It’s important that you bring the medications that you are currently taking. NOT medications that you taken in the past. Also, think about what side effects of the medications. Remember, your medications are a big part of your case.
- If you worked since your disability began, be prepared to discuss the work and bring pay stubs and tax returns if you have them.
- Complete the Enclosed Form. Make sure you return the acknowledgement form. SSA wants to know that you are definitely coming to the hearing.
- Submitting more evidence and reviewing your file. Review your file and Submit every piece of evidence that relates to your disability. Here’s where it can get tricky. If you don’t know what’s in your file, you won’t know what send. SSA is moving away from paper file so you need to request a copy of a compact disc (better make sure you have a computer you can access). You can access your file at the court using one of their conference rooms. If you have problems getting medical records, let SSA know IN ADVANCE with the name of the doctor, the address, the phone number, what they are treating you for, and what records are missing. Remember, you want to notify SSA as far in advance as possible.
- Issues I will consider. The notice will tell you what application the court will focus on so if you know you filed earlier, you may need to clarify. Some people have filed earlier. In some RARE instances, SSA may consider the earlier application but it depends. If you’re not sure if you fall into one of those rare instances, speak to a representative.
- More about the issues. Pay close attention because in this section, the court may mention particular issues that they will discuss. You need to be prepared to address these issues.
- Remarks. Sometimes a vocational expert or medical expert will appear at your hearing. The vocational expert is there to speak about the work you have done in the past and the impact of limitations on doing certain work. The medical expert will speak about the medical evidence in the file and what limitations they reveal. You will have the opportunity to ask them questions but the questions should be presented in a certain way. If you don’t what to ask, you should speak to a represent.
- Your right to request a Subpoena. In some instances, at the discretion of the judge, the judge will issue a subpoena for a person to testify or submit records. Remember, you want to ask the judge, at least, 5 days before the hearing and be specific about what you need, who the person is, and where it can be located.
- What happens at the hearing? Remember, this is YOUR day. You may have been through the process for a year or longer and you may have NEVER had a chance to talk to anyone. This is your day to discuss case, explain any conflicts in the medical evidence, tell the court about your condition, and present your reasons for why you are disabled. Everything is UNDER OATH so be prepared to tell the truth.
- The Decision. Sometimes the judge will let you know whether they believe you are disabled at the hearing but most times they will not. The written decision is VERY important because it is what gets you paid if you win or what you need to appeal if you lose. Let me be clear. EVERY court and judge is different in terms of the time it takes to make a decision and it depends heavily on the evidence in your file and the back log of the court.
I hope this post helps. If you visit my www.youtube.com/ReevesLawFirm, starting 11/21/2016, I am doing a daily Step by Step guide to understanding your Disability hearing notice. If you have any questions or if you would like a particular video, please let me know.
After a couple of years in the disability process, your case probably will look like a series of tough outcomes. You applied. You got denied twice. You appealed to go before a judge. You waited a year and a half for a hearing. You went before a judge. You got denied. You appealed to the Appeals Council. You waited a year and a half for a decision. You get denied. You now have the right to file in Federal Court. By this time, you probably have been going through this process for over 3 years now. You’re frustrated. You’re upset. You have spent so much time trying to survive on your own that you decided that maybe you should try to go back to work. However, after all of this time, you now ask yourself some tough questions:
- Should I give up fighting?
Only you can answer this question. If you have the ability to file a law suit and you believe you were disabled during this time, you have a right to keep to fighting (depending on the facts of your case).
- What if I go back to work? Can I still keep fighting?
Your fight is typically about the period of time that you were NOT working so, in essence, you working should not have any impact on your lawsuit.
- What if I try to go back to work and I can’t work? Can I file a new application?
It’s important that you take the time to review your eligibility to file a new application with a representative. Depending on your circumstances, you may be able to file a new application if you can’t work while your lawsuit is pending.
- What happens if I win my lawsuit and I’m working?
Again, the focus of your lawsuit is really on the period of time you tell the government that you were unable to work. As such, if you’re working, you can still fight for the backpay period when you were NOT working.
- What if I want to drop my lawsuit?
This case is YOUR case. At any point in time, if you desire to drop your lawsuit, you can. Just remember that if you do, you probably will not able to start the lawsuit back up.
Again, it’s important to remember that if you’re not sure about your options, make sure you speak with a representative so you can know what your rights are regarding a law suit and working.
I am sure you are tired of hearing about how the disability process is a marathon and not a sprint. Even though this is a tired phrase, it really is the truth. The reason why it’s a marathon is because by the time you go through all of the appeals, it may be years before you get a desired outcome (assuming you get one).
However, there may come a point when you come to a very unique crossroad. This crossroad comes when you have taken one application as far as you can through the administrative process and now have to consider filing a law suit against the Social Security Administration. It is at this point when you may have the opportunity to file a new application while your law suit is pending. This situation unique because some people wonder why they should even file a new application. Here’s a few things you should consider:
- Two is sometimes better than one.
Sometimes, while you file your law suit, you may be able to file a new application. If you are allowed to file a new application, you should consider filing a new application. Every federal court jurisdiction is different but your federal law suit may be a year or longer. In this situation, filing a new application may give you the opportunity to have two cases proceeding at the same time.
- The government treats your new application as if it’s the first time.
When filing a new application, the government typically doesn’t give you any preferential treatment just because you previously went through the disability process. As such, when you file a new application, the government is treating your application as if you are filing for the first time.
- What was in your old file before the previous judge will not be in the new file.
As mentioned above, the government treats a new application as if you are filing for the first time. However, the government typically will not review any records before the date your LAST JUDGE made a decision on your case. In other words, if you had an ALJ unfavorable decision of January 1, 2015, SSA will only focus on evidence from January 2, 2015 to the present. So it’s important to know that SSA will not take another look at the same information.
- If you submitted documents to the appeals council, you may have to resubmit them on a new application.
When you get the decision from the Appeals Council, they typically will list all of the evidence that you provided to them. If you decide to file a new application, please remember that SSA will not forward this information to your local office on a new application. As such, make sure you keep a copy so you can forward the information to your local office on a new application.
- There is a possibility that your old case in federal court may impact your new case
This question is a tough one to answer because what impact the federal court may have on your new case depends on the outcome. For instance, if you win your law suit and the federal court orders the Social Security Administration to look at your case again, your new case may be combined with your old case. If you have been approved on your new case while your old case is in federal court, the federal court decision may result in your new case being re-opened. Unfortunately, there is no way to know the impact until a decision has been issued by the federal court.
- If you’re not sure what you should do, you really should talk to an attorney
There are a lot of other factors that come into play when deciding whether to file a new application while your case is in federal court. If you’re not sure if you should or should not, you really should talk to an attorney who handles federal court litigation and handles Social Security applications. Use different resources that are available to you for assistance such as NOSSCR, NADR, AARP, or Legal Aid services.
For those who have gone through months and years of disability process, the recent of disability benefits is a welcome and deserved relief. And quite honestly, when you have worked so hard to get disability benefits, the last thing you are thinking about is going through a disability review. However, when that day comes, a lot of people have questions. Here are a few question frequently asked questions that I receive. I hope they help:
- Why am I going through a Review? My condition will last forever.
In today’s world of modern medical technology and innovation, scientists are discovering cures and treatments for all sorts of medical condition. In addition, depending on the treatment and how your body respond, some people actually experience an improvement on their condition. I understand that you may have a condition that will not ‘go away’ but the reality is you have an ongoing duty to prove you’re disabled. This duty doesn’t disappear because you were approved or if you believe your condition is one that will not improve.
- What should I do when SSA starts asking for paperwork?
You should approach your review as aggressively as you did your initial application. When SSA is reviewing your case to determine whether your medical condition has improved to the point where you can return to work, you must take all steps to demonstrate your medical condition is the same or worse than when you originally applied.
- Should I appeal if I’m found to be no longer disabled?
Only you can answer this question. If you believe you are still disabled, you have a right to appeal SSA’s determination that you are no longer disabled.
- Should I keep my disability benefits going during the disability process?
Again, this decision is a personal one. The reality is that most people who have been receiving disability benefits for a few years. These people rely heavily on the benefits. As a matter of fact, for some people, their survival is based on the monthly check. So, if you believe you need to continue the benefits, it’s up to you. Just remember if you lose, you may be responsible for reimbursing the government the monies you have received.
- When should I hire a representative?
It’s amazing the number of times I get a call when people FIRST start receiving paperwork about the review. It’s more of a personal preference. In theory, hiring a representative can help you present your case in such a way to keep your benefits. However, you may want to consider waiting until you’ve been determined to no longer be disabled.
- I want to hire a representative but I am having a hard time finding someone to take my case. Why am I having such a hard time?
Every representative is different in terms of why they will or will not take a case. Unfortunately, in some instances, they may not tell you why they will not take a case. The hard part MAY be due to your ability to pay. When you applied for disability benefits the first time, your representative was paid based on a contingency fee from your back pay. However, if you choose to keep your benefits going, there is no back pay which means you would have to pay an upfront retainer. As I said above, if your survival depends on your monthly benefits, you may not have the money to pay for an attorney.
- What are the chances that SSA will find I am no longer disabled?
Unfortunately, there is no way anyone can tell you what your chances are. There are too many unknowns. It depends on your medical records, what your doctor says, the reason you were initially found disabled. As I said above, just focus on being as aggressive in proving you are STILL disabled as you did when you applying the first time.
Again, these questions are some of the common questions relating to Cessation cases (Continuing Disability Review). Please let me know if you have others.
Recently, I had a long heartfelt conversation with a client who was upset regarding how her life has changed since applying for disability. We spoke for a while and after we spoke, I decided I would share with you some of the words that I shared with her. I am not sure if these words give you comfort but I hope I can give some perspective.
- Disability does NOT define you.
People define themselves in a variety of ways. Whether it’s the work they do, the charities they support, or even their marital status, people look to different things to give their lives meaning and to establish what defines them. Unfortunately, for some, being disabled may significantly alter the way you do the things you do. And this can be devastating. We live for certain things and once we believe we are no longer able to do the things that define us, we feel less of a person.
However, this does not in ANY way diminish the person you are. It may change how you deal with things but it does not eliminate the person you are. You still have your wisdom. You still have your knowledge. You still have your spirit and your soul. THOSE things define you and it is those things that carry you when all other things have faded.
- Applying for disability is NOT part of your life plan
When you’re a kid, most of your life plans probably look like this: a) go to school, b) graduate, c) go to __________ (trade school, military, college), d) get a job, e) meet someone special, f) raise a family, h) retire, and i) ride off into the sunset. Now, we all know it NEVER works out like that but the one thing we have during this whole plan is our ability to redirect. WE are in control. We get sidetracked but we still have the ability to get back on track. What gets tough is when something happens that we believe prevents us from controlling our ability to get back on track. So, when you feel you no longer have that control, you get frustrated. So, when you apply for Social Security Disability, you truly feel like you have lost control. Don’t let it frustrate you. Whether you believe it or not, this is just another sidetrack. You do have the ability to get back on track.
- You are still in control.
Which brings me to control. NO ONE likes to feel like they are leaving their fate in the hands of someone else. However, we do it every day. We leave teachers in control of our kids. We leave our cards in control of our mechanics. We leave our professionals in control of our affairs. When you apply, it is easy to feel like you are NOT in control because there are so many moving parts to the process and sometimes, you don’t know what is going on during the process. Just remember, your case is still YOUR case and whether it’s feeling out a form, going to a doctor, or writing a statement, you are still in control.
- You are APPLYING for Disability, not BEGGING for Disability
I know this is tough to here but we live in a society where you have to PROVE you are entitled to receive most things. No one will just GIVE You a job. You have to apply and PROVE you deserve it. No one will just GIVE you a college degree. You have to apply and PROVE you deserve to be admitted AND do the work to graduate. There are many instances in life where you have to apply and prove you are entitled to receive something. Unfortunately, the Disability process is tough because you truly NEED the benefits and you don’t want to have to feel like you’re begging for it. I know it feels like you’re begging but you’re not. You’re applying and having to prove that you are entitled to receive it. Millions of people are doing the same thing so don’t think you are begging for handouts.
- We live month to month but applying for disability could be year to year.
There are two tough realities: a) most people live month to month and b) most people don’t save. And this is worse when you have lost the ability to work and earn a living month to month and you don’t have any savings. So, the notion of having to wait possibly years is terrifying. The reality is that you may have to wait an extended time to obtain benefits.
- Your new normal doesn’t mean you have abandoned the old you
I have a couple of friends who have received disability benefits. They are just feisty, energetic, free spirited and outspoken as they were when I first met them. In my eyes, the only way I know they received disability benefits is they told me. Otherwise, regardless of what health problems they experience, they are STILL the same persons I know. Don’t let your change in your health circumstances cause you to believe that you are no longer the person that you were. Trust me. You ARE the truth!
- It’s ok to be frustrated but don’t give up because you are STRONGER than you know
You don’t truly appreciate what survival is until you have to SURVIVE for a prolonged period of time. You never had to ask for help. You never had to ask for a loan or sleep on someone’s couch or apply for food stamps. All of these are completely new to you. But you know what? You did the damn thing! When you stop and look back and realize how long it’s been, you don’t know it but you are a WARRIOR! Don’t let yourself overlook the fact that you were able to survive all these months and years. You are the TRUTH!
I know these words may not replace the fact that you truly need disability benefits but I do hope it puts things in perspective. Disability does not DEFINE you and you should never let disability DEFEAT you!
Here are just a few of the tips the video addresses regarding what you should do after my Social Security
Disability hearing, part II.
Clean up any medical conflicts in your records:
- What is a conflict?
- Why is this important?
- The court has to address conflicts
- If you leave it to the court, you may not like the outcome
- Conflicting doctors statements
- One doctor says one thing
- Another doctor says another
- Ask one of your doctors to review both statements and clarify
- Be aware you may not like the answer
- Internal conflicts within your doctors’ records
- Your doctors say one thing
- But the notes in their file says something else
- Ask your doctor to clarify and address the conflict