SUPPLEMENTAL SECURITY INCOME AND CHILD SUPPORT
Laura W. Morgan
In November 2000, we considered the effect of Social Security benefits (disability, retirement, death) on child support. This month, well consider Supplemental Security Income (SSI) benefits, a related but distinct benefit. See generally Angela F. Epps, To Pay Or Not To Pay, That Is The Question: Should SSI Recipients Be Exempt From Child Support Obligations?, 34 Rutgers L.J. 63, 66 (Fall 2002).
Unlike Social Security benefits, SSI benefits are not a substitute for lost income due to disability. Rather, they are a supplement to the recipients income based on need. The purpose of SSI benefits is to assure that the income of a recipient is maintained at a level viewed by Congress as the minimum necessary for subsistence. Schweiker v. Wilson, 450 U.S. 221, 223, 101 S. Ct. 1074 (1981). Unlike Social Security benefits, SSI eligibility requires disability, and that the applicant have no more than $2,000 in financial resources. 20 C.F.R. § 416.1205(c). Unlike Social Security, the SSI program does not provide a benefit for the dependents of the SSI recipient, unless the dependents themselves independently meet the SSI eligibility criteria. E.g., Ford v. Ford, 816 So.2d 1193 (Fla. 4th DCA 2002) (child's Supplemental Security Income benefits due to childs own medical condition could not be credited against fathers child support obligation, either alone or combined with dependent benefits child received from fathers Social Security Disability Insurance). Finally, unlike Social Security benefits, SSI benefits are not subject attachment for the purpose of spousal support or child support. 42 U.S.C.A. § 407(a) (providing that none of the moneys paid or payable under subchapter II shall be subject to execution, levy, attachment, garnishment, or other legal process).
Based on these critical differences, the vast majority of states that have considered the issue have concluded that SSI benefits may not be considered income for purposes of child support. They have based their decision on two distinct reasons: first, because by federal law SSI cannot be attached, it cannot be considered income; second, because SSI is a means-tested benefit, it should not be considered income. A minority of states has concluded that SSI benefits can be considered income for purposes of child support.
First, a number of states have reasoned that federal preemption precludes the consideration of SSI as income for child support. Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002); Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000); Department of Public Aid ex rel. Lozada v. Rivera, 324 Ill. App.3d 476, 755 N.E.2d 548 (2001); Becker County Human Services, Re Becker County Foster Care v. Peppel, 493 N.W.2d 573 (Minn. Ct. App. 1992); Tennessee Department of Human Services ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990); Reyes v. Gonzales, 22 S.W.3d 516 (Tex. App. - El Paso, 2000); Langlois v. Langlois, 150 Wis.2d 101, 441 N.W.2d 286 (1989);
Second, some states have reasoned, without discussing federal preemption, SSI should not be considered income because it is a means-tested benefit. Marrocco v. Giardino, 255 Conn. 617, 767 A.2d 720 (2001); Cox v. Cox, 654 N.E.2d 275 (Ind. Ct. App.1995); Burns v. Edwards, 367 N.J. Super. 29, 842 A.2d 186 (App. Div. 2004); Nicholson v. Gavin, 207 A.D.2d 402, 615 N.Y.S.2d 458 (2nd Dep't 1994); Morris v. Morris, 2003 WL 22390092, 2003-Ohio-5598 (Ohio App. 4 Dist. Oct. 16, 2003);
Finally, some states have concluded that SSI benefits can be considered income for purposes of child support. Griggs v. Griggs, 435 So.2d 103 (Ala. Civ. Ct. App.1983) (concluding that SSI benefits were aimed to protect the recipients family as well as the recipient and were therefore available for consideration in the calculation of child support); Commonwealth ex rel. Morris v. Morris, 984 S.W.2d 840 (Ky. 1999) (in a four-to-three decision, holding that state statute permitting courts to include SSI benefits when calculating child support obligations was not preempted by 42 U.S.C.A. § 407(a)); Lee v. Lee, 859 So.2d 408 (Miss. App. 2003) (order which required father to pay $65.00 per month in child support, even though husbands only apparent income was Supplemental Security Income benefits, was not an abuse of discretion where court determined that father had the ability to pay some child support, and, when father received a lump sum of $7,000.00 as back pay after being approved for SSI benefits, he only gave child $100.00); Landis v. Landis, 456 Pa. Super. 727, 691 A.2d 939 (1997) (although SSI cannot be considered income to parent, it may be considered as other household income for purposes of determining whether to deviate, citing Whitmore v. Kenney, 426 Pa. Super. 233, 626 A.2d 1180 (1993)). See also Hurd v. Hurd, 303 A.D.2d 928, 757 N.Y.S.2d 170, 171 (2003) (child support can be ordered against an SSI recipient if the hearing examiner concludes that the recipient has the capacity to generate additional income).
The preemption argument is misguided. The fact that a benefit is not subject to attachment, garnishment, or transfer does not mean it cannot be considered as a valid source of income for support purposes. The Supreme Court said as much in Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L.Ed.2d 599 (1987). There, the Court considered whether veterans disability benefits, which are also subject to an anti-alienation clause, can be considered in setting child support, and concluded that they could be. But see Becker County Human Services, Re Becker County Foster Care v. Peppel, 493 N.W.2d 573 (Minn. Ct. App. 1992) (specifically rejecting Rose argument).
The much better reasoned argument is not that SSI benefits cannot be considered in setting child support, but that they should not be considered. SSI, as a means-tested benefit, should not be considered because it would leave the parent without the necessary minimum self-support reserve:
Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panels Recommendations and Final Report at II-44 (U.S. Dept of Health and Human Services, Office of Child Support Enforcement, 1987).