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If you have recently divorced or separated, you may be concerned about how you’re going to make ends meet — especially if your child has special needs or a disability requiring costly medical care, medication, and special education. Importantly, both parents have a financial responsibility to support their children and California courts take disability into consideration when determining child support payment obligations.
When divorcing or separating, it can be easy to underestimate the costs of raising a child with a disability or special needs. While basic child support covers food, clothing, and shelter costs, a child who has a disability or special needs may require additional financial support. Significantly, a California court may deviate from the child support guidelines and order a higher amount to be paid if a child requires specialized care.
Some factors that may affect the amount of child support for a child with a disability or special needs may include:
If your child requires additional financial support as they get older, you may consider filing a petition to modify an existing court order. If granted, a modification can increase the amount of support paid by the non-custodial parent.
Usually, court-ordered child support payments stop once the child has turned 18 — or 19 if the child is still in high school. But there are certain circumstances under which a California court will order support after the child has reached the age of majority.
Under California law, child support may continue into adulthood if the child remains dependent on their parents due to incapacitation or disability. Generally, a court will order adult child support when (1) the child is incapable of being self-supporting due to a disability and (2) they do not have sufficient means to support themselves. California courts do not impose any time limits for long-term disability child support — it can last for the child’s entire lifetime.
Not only can a child’s disability affect child support, but parental disability can also impact court-ordered child support in California. For example, some parents may receive benefits through Social Security Disability Insurance (SSDI) or the Social Security Income (SSI) program. While Social Security administers both programs, each affects child support differently.
SSDI are payments made to a person who has a physical or mental impairment that prevents them from engaging in substantial employment. These benefits are earned by working at a job for a number of years where you earned a sufficient amount of work credits.
In contrast, SSI benefits are provided to disabled individuals based on income level. Prior work history is not relevant to receive SSI. In certain circumstances, a disabled parent may receive SSDI and SSI concurrently. Additionally, disabled children are also entitled to receive monthly SSI payments.
Unlike SSDI — which qualifies as income — SSI does not count as income for the purposes of calculating child support in California. However, child support payments can affect the amount of SSI benefits a disabled child would receive. Under the program, 2/3 of the amount of child support payments are counted in determining the monthly SSI payment, reducing the amount of benefits accordingly.
If you or the other parent has fallen behind on child support payments due to disability, you may be wondering: can disability payments be garnished for child support?
If a parent is disabled, they are not relieved of their obligation to pay court-ordered child support. A parent also cannot decide to stop making full payments without approval from the court or entering into an agreement with the other parent. If the non-custodial parent is unable to make full payments on time, SSDI benefits can be garnished since they are counted as income. Since SSI is not considered part of a parent’s income, these benefits cannot be seized.
If you are struggling to meet your court-ordered child support obligations due to a reduction in income as a result of a disability, you can request a downward modification at any time. A court will consider your income and disability status in determining whether to grant your petition. Generally, a downward modification for child support may be granted if the support order would decrease by 20% or $50, whichever amount is less.
Whether your disability is permanent or temporary, it’s a good idea to file a petition asking the court to decrease your payment obligation before your wages are garnished. It’s essential to understand that any arrears cannot be retroactively modified — only child support payments owed from the date the petition was filed moving forward would be reduced if the petition is granted.
Child support matters can be complex. They may be especially complicated when a child or parent has a disability. If your family is affected by a disability and child support is a concern, you should consult with a knowledgeable family law attorney who can advise you of your legal rights — and work toward a solution to ensure the needs and best interests of your child are met.
The Law Offices of Rick D. Banks has been assisting clients in Fresno and the surrounding area with child support and family law matters for over 20 years. To schedule a no-obligation consultation, call (559) 222-4891.