Although a court cannot divide your Social Security disability benefits in a divorce, those benefits do count as part of your income for child support purposes if the court orders you to pay child support. However, if your child receives Social Security payments based on your disability, the amount of those payments is offset against your child support obligation. If you fall behind on your child support, the court can garnish up to 50 percent of your Social Security disability benefits.
Social Security Disability
The Social Security Administration provides benefits to disabled persons who have worked a sufficient number of years to qualify for them. A person is disabled when he is unable to work for a year or more. A disabled person's unmarried children are also eligible to receive benefits up to age 18, or age 19 if a child is a full-time secondary or high school student. Each child can receive a monthly payment in the amount of up to half his parent's disability benefit. This money is a separate Social Security payment that is not deducted from the parent's disability benefit.
Disability Benefits and Divorce
Upon divorce, a Texas court divides the community property -- the property acquired during the marriage -- between the parties. But the court cannot divide separate property, which is the property acquired by the spouses before marriage or during marriage by gift or inheritance. However, under federal law, Social Security disability benefits qualify as separate property even when they are acquired during marriage. Because your Social Security disability benefits are your separate property, the court may not award any part of them to your spouse when you divorce.
Read More: Can a Divorced Spouse Collect on Disability Benefits or Social Security Income?
Disability Benefits and Child Support
Texas bases child support guidelines on a parent's gross income, less certain deductions, multiplied by a percentage. Social Security disability benefits are counted as part of the parent's gross income. However, because your child can also receive up to 50 percent of the amount of what you are receiving in disability payments, Texas law allows you to offset the amount of Social Security disability payments your child receives against the amount of child support you are ordered to pay.
Child Support Collection
Although the amount of your disability benefit is not reduced by the Social Security disability payment made to your child, if you fall behind in your child support obligation, your benefit can be garnished until you catch up. However, Texas law limits the amount that can be garnished for the payment of child support to 50 percent of your disposable earnings. This is true even when there is more than one outstanding child support order.
- Social Security: Disability Planner: How Much Work Do You Need?
- Social Security: Disability Planner: How You Qualify for Social Security Disability Benefits
- Social Security: Disability Planner: Benefits for Your Children
- Social Security: Disability Planner: Family Benefits
- Texas Legislature Online: Chapter 3. Marital Property Rights and Disabilities Subchapter A. General Rules for Separate and Community Property
- Texas Legislature Online: Section 7.001 General Rule of Property Division
- Texas Legislature Online: Chapter 154 Child Support
- Google Scholar: In the Matter of Marriage of Everse
- Legal Information Institute: 42 USC § 659 - Consent by United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations
- Texas Legislature Online: Sec. 158.009 Maximum Amount Withheld from Earnings.
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