If I Am Awarded Social Security Disability, Do I Still Have To Pay Child Support?

Typically this is the type of question that I would direct a client to ask a family law attorney, especially if they already have one for a prior divorce or for child support issues.

However, as a New Jersey Social Security Disability attorney I like to keep up on news that relates to Social Security Disability. A recent New Jersey Superior Court decision (Gilligan v. Gilligan) states that an SSD award alone is not enough in itself to automatically relieve a parent of paying any child support.

The New Jersey Court held that a prior decision (Golian v. Golain) does not hold that an "SSD award letter itself is automatically sufficient for the family court to conclude that the party cannot work in any capacity or earn any income to pay child support or arrears."

In addition to the Notice of Award  from the Social Security Administration:

when a party alleges a post-divorce disability that renders him or her unable to work at all and pay any child support, that party must provide more evidence to the court than simply the SSD award letter itself to prove his or her case.

A parent who claims that a disability prevents him or her from paying child support or arrears has an obligation to provide the other parent with the opportunity to review the underlying medical reports upon which the in the SSD award was based, along with any additional medical reports regarding the nature and extent of the disability, diagnosis, and prognosis relative to engaging in employment."

When the SSA declares a person disabled and eligible for SSD benefits, such a finding cannot, without further inquiry, automatically be considered tantamount to a finding by the SSA that the person cannot work or earn any money at all.To the contrary, under the SSA’s own definitions and regulations, a disabled person may work and earn up to a maximum amount of income each year whiles till qualifying for benefits and maintaining his or her disabled status.

A declaration of disability by the SSA is a determination that the applicant cannot engage in substantial employment or gainful activity (SGA), which is distinguishable from being unable to work and earn any money at all. If a person claims that he or she cannot work at all, as opposed to being onl yunable to engage in any substantial work activity, it is that party’s burden o fproof to produce supporting and substantiating evidence of the validity of this claim beyond mere submission of the SSD award itself.

While some persons may be unable to engage in any income-producing work at all due to the nature of their disabilities, not every disability is the same. Other disabled persons may in fact be able to earn some degree of income under SGA levels and generate supplemental income, which can be used to help support a dependent child and pay back existing child support arrears. A family court may consider a disabled obligor’s potential ability to earn additional income under SSA regulations in determining the level of his or her ongoing child support obligation and schedule for repayment of accrued arrears.

This recent New Jersey decision basically means that if you are awarded Social Security disability, you are not automatically released from the obligation of paying child support. The family court will have to make a decision because it is a fact sensitive issue that will vary based on each individual's disabilities and ability to earn any amount of money.

To read the full Gilligan v. Gilligan decision click here.