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.
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.
I know a lot of you have been waiting a long time and have really found yourself frustrated going through this disability process.
But wouldn’t it make you mad, if you did something that was within your control and then you did something that screwed up your entire case? I know this sounds overly simplified. But the reality is, you are in control of one very powerful aspect of your case. Your credibility. So why would you do anything that would jeopardize your credibility? Everything that you fill out, sign, or even testify, is under oath. You are telling the federal government that you promise to tell the truth. Not some version of the truth. Not some variation of the truth. You’re committing to telling the truth. So why would you do something with the hope that you don’t get caught? Why would you leave out some very key information in the hopes that the government doesn’t ask you about it or bring it up?
Keep in mind, you’re dealing with people. And people can be very skeptical if somebody decides to selectively keep certain information away from them or flat out lies. So I say this not to frighten you but to remind you that you have a responsibility to prove that you are disabled. So don’t do anything that would jeopardize your ability to present your case in the best and most positive way possible.
The last thing you want to have happen is you misrepresent some facts or even lie and have the person who is responsible for evaluating your case, cast a lot of doubt on what you have been saying about how disabling your condition really is is.
I get it. You have filled out these forms already. I understand. You’re aggravated. You’re in pain. You don’t feel good. So what do you do?? You just skim through the questions. You just put in information so you can hurry and get the forms back to SSA. Your medical records are good. Everything should speak for itself. It shouldn’t be a problem. Right? Right?
Let me blunt when I say this “SSA does NOT KNOW YOU!”. Those forms are your best chest to give SSA a complete, detailed account of what goes in your daily life and, more importantly, how your condition affects your life. Don’t gloss over it, sugar coat it, or blow it off. STOP for a second and answer the questions. If the question asks you “How do you go grocery shopping?”, don’t just give some fluff answer like “I’m in pain and it hurts”. That answer doesn’t tell anyone anything.
You have to remember who is reading your answers. A government worker who doesn’t know you, who doesn’t have time to get to know you, and who is relying on your responses to determine if your responses are consistent.
You don’t want people ‘filling in the gaps’ about your condition and how it affects you. Take the time to answer the questions so people can know how your condition affects you.
I know that everyone who applies for disability benefits genuinely believe they are disabled. No one would put themselves through a year or longer of paperwork, doctor’s appointments and waiting just to apply. For most people, you probably believe you have a pretty solid case to prove that you are disabled.
Well, I am here to tell you that you probably have a few problem areas (i.e. warts) in your disability case that you need to address. As such, it’s important that you be prepared to explain the warts in your disability case.
Here are a few of the common ‘warts’ that I see that come up in a disability case:
1) Gap in treatment
For whatever reason, you may have experienced a period of time when you didn’t receive any treatment. You need to be able to explain it.
2) Non compliance with treatment
If your doctor tells you to stop smoking, you better have a good reason to explain why you are still smoking.
3) Wages after onset date of disability
SSA runs an earnings statement to see if you have worked. If you say you became disabled on a particular day, SSA is going to want you to explain the work you did after that date.
Most people don’t realize that Unemployment and SSA are two completely different program. Unemployment is usually for those who are trying to go back to work. SSA is for those who can’t work. You better be able to explain why you got one while applying for the other.
5) Drugs and Alcohol
The regulations require SSA to determine how drugs affects your condition. You need to be able to explain your pattern of drug / alcohol use and any periods of sobriety or relapse.
It has taken you a long time to get through the disability process. Make sure you do everything to make it as smooth as possible.
I know I have told you countless times over and over again about the importance of completing the forms. I probably sound like a broken record. Now, I want to talk to you about something else. Take the time to review what you’ve written to SSA.
Whenever I represent clients, I always tell them to keep a copy of any form they send to SSA. I know that sounds like you are just keeping extra copies of paper. However, keeping the forms you completed can help you with your case:
1) You can refresh your memory on what you put the last time
Usually months will pass in between the times you have to complete the forms. By keeping a copy and reviewing the contents, you can make sure you can recall what you previously wrote.
2) You can make sure you can accurately state any changes
When SSA asks you what has changed, you can honestly tell them what has changed since the last time.
3) You can make sure your responses are consistent
You can write responses in the same manner so this way the ‘voice’ of your words sound the same.
4) If you go to court, you can remind yourself of your responses
By the time you go to court, you may not remember everything you have written down. Now, you can know exactly what things you wrote down so there is no confusion in your testimony.
Remember, the forms you complete are evidence SSA uses to evaluate your case. Make sure you give your best effort so you don’t end up hurting your case.
I know that you get tired of it. You are getting paper after paper in the mail. What’s even more frustrating is you probably are annoyed by the fact that you appear to be completing the same paperwork over and over again. So what do you do? You just answer the questions quickly. You give short responses. You don’t go into detail. In your mind, your doctors don’t change so you just give SSA the name but no address. In your mind, you’re thinking “Why does it matter? I’m going to get denied anyway.”
Well, I have news for you. It does matter. You want to take the time to fill out the forms properly. I know I have said this a few times but what you put in the forms really do matter:
Remember, SSA is handling thousands of cases so they don’t know the name, address and phone number of every doctor in the country. Make sure you give them the specific information about your providers.
2) If something has changed, be specific
Typically, SSA will ask you if you something has changed in your condition. Don’t sugar coat it. If something has changed, take the time to give details about the changes.
3) Take the time to answer each question in detail
I can’t stress this enough. SSA does NOT live with you. So if you have problems doing household chores, be descriptive and detail so they can understand.
4) It’s your case so care enough to give information
Whether you believe or not, the forms you fill out become a part of evidence in your file that a judge may rely upon to make a decision. So give the information.
Regardless of whether you believe it or not, the forms you complete will go a long way towards helping your case. Don’t brush it off. Take the time to do it right.
I have said a thousand times SSA is looking for consistency in your responses. I know it’s tough when SSA is sending you all these forms and sending you to these appointments. It is probably more annoying SSA is sending forms to friends and asking for records from your doctors. The reality is SSA is not trying to trip you up. SSA is looking for consistency.
The reality is most people trip themselves up on their own. Here’s how it happens:
1) Lack of common sense
Think about it. You say you can’t sit for more than 10 minutes but you can sit at a desk and surf the web for more than 2 hours as a time. This sounds silly but think.
2) Making yourself seem worse than you are
Don’t forget that your medical records have to support what you say. So, if you say that you are in so much people and you’re taking serious pain meds, you seem like you are grand standing when all you are taking is Tylenol and Aleve.
3) Forgetting other people have seen you, too
Remember, SSA is going to ask other people about your condition. Regardless of how much you try, no one is going to see you exactly as you see yourself.
4) Not being honest
Lying is the worst thing you can. Nothing kills a person’s credibility more than lying about their condition. So, don’t put yourself in the position of being a liar.
You would be surprised how the little things can trip up your disability case. The disability case is tough already. Don’t do anything to make your situation worse.
You have to prove you’re disabled. Point blank. End of story. Mo matter what you think. No matter what issues you have with the government, the process, or anything else. You have to prove you’re disabled.
The regulations make it very clear:
In general, you have to prove to us that you are blind or disabled. Therefore, you must bring to our attention everything that shows that you are blind or disabled. This means that you must furnish medical and other evidence that we can use to reach conclusions about your medical impairment(s) and, if material to the determination of whether you are disabled, its effect on your ability to work on a sustained basis. We will consider only impairment(s) you say you have or about which we receive evidence.
So, this means you have to provide medical evidence in order to support your argument that you are disabled.
Now, I can’t tell you the countless amount of times people have said:
“I don’t have insurance”
“I can’t afford the share of cost.”
“I can’t afford medical treatment.”
I have heard the statements a thousand times. I have written a post about alternatives and options for medical treatment when your resources are limited.
What’s even more important is for you to understand you must follow a doctor’s medical treatment in order to determine if your condition will improve.
The regulations regarding treatment is very direct:
In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work.
In the past, the law allows for acceptable reasons for failing to follow prescribed treatment by a physician. One well accepted reason is based on poverty. In other words, if you can’t afford your medical treatment, in most cases, SSA will take in consideration of your poverty as reason for not getting medical treatment.
Now, we have a new development. It’s called the Affordable Healthcare Act (which is more commonly known as Obamacare). One of the many goals of Obamacare was to provide insurance to the uninsured. As a result, Obamacare offers options for those who are uninsured and unemployed.
So what does that mean for you? This means, you need to try to see if you can get health insurance through Obamacare as part of your disability process to prove you are disabled. Why?:
1) Obamacare was intended for the uninsured
I know it’s easy to say “I have no insurance” but the whole focus of Obamacare was to provide insurance for the uninsured. So imagine how you will look if you go in front of SSA and say I have no insurance and I haven’t applied for healthcare through the law that will give me insurance.
2) You probably need to provide proof you have tried to get insurance through Obamacare.
Don’t think that you can just go on the website and that’s it. There are 4 different ways to apply (Phone, paper, computer and in person). You better try.
3) You probably need to show you can’t afford even the insurance available through Obamacare.
This part may be difficult. If you qualify for even a low level of insurance but you still can’t afford it, you better be prepared to discuss in detail how that is possible.
4) Be aware of what you spend your money on when you say you can’t afford insurance.
I know this sounds wild but think about it for a minute. Play this scenario out:
Judge – “Do you have insurance?”
You – “No your honor. I can’t afford it.”
Judge – “Did you apply for Obamacare?”
You – “Yes, your honor but the best I could get was $25 per month and I can’t afford that much.”
Judge – “Do you smoke? If so, how often?”
You – “Yes, your honor. I smoke a pack a week.”
Judge – “So you can afford to smoke 4 packs of cigarettes a month but you can’t pay $25 for health insurance to go to the doctor?”
You – “uhhhhhhh”
See where I’m going?
I can’t say it enough but you bear the burden of proving you are disabled so it’s important you use every option available to you which includes Obamacare.