Law Tips: Something Divorce Lawyers Need to Know About Social Security Disability Law

“It is very important to file the Petition to Modify as soon as the disability petition is filed so that the court has the opportunity to modify the child support back to the date of disability onset.” – A piece of information that could have considerable impact on your client, right?

Thanks to our Law Tips faculty contributor, Stephenie Gookins, Campbell Kyle Proffitt LLP, Noblesville, Indiana, I have expert advice and background to share in this area of Social Security Disability Law.  This key reminder concerning the timeliness of the Petition to Modify is one segment of Stephenie’s Family Law Institute CLE presentation on “Things Divorce Lawyers Need To Know About Social Security Disability Law.” 

Social Security Disability (SSD) benefits received by the child may be applied to a parent’s arrearage of child support depending on when a petition to modify was filed.

In many family law cases, claimants have been ordered to pay child support as part of a dissolution or paternity proceeding for children prior to becoming disabled or filing for disability benefits.  It is important to note that when an individual is ordered to pay child support, unable to work, and applies for SSI or SSD, a petition to modify child support needs to be filed immediately.

If a claimant has dependent children, those children may be eligible for disability benefits, as well, if the parent receives benefits.  Whoever has custody of the children must apply for the child’s benefits and refer to the claimant parent’s application for disability.  Social Security will need the child(ren)’s social security number, birth certificate, children’s address, as well as the claimant’s social security number, to process the request.

In Brown v. Brown, 849 N.E., 2d 610 (Ind.2006), the Indiana Supreme Court set forth a bright-line test which helped determine when SSD payments may be applied to a child support arrearage.  The Brown Court held that a disabled parent receives credit against his or her child support obligation for Social Security benefits paid to the child as of the date that the parent filed a petition to modify the child support order.

The Brown holding was followed in Hieston v. State, Indiana Family and Social Services Administration Child Support Bureau, 885 N.E.2d 59 (2008).  In the Hieston case, the Mother became unable to work and accumulated a child support arrearage.  Although she made the Title IV-D Court aware that she filed for disability benefits in November 2003, she did not file a Petition to Modify with the Court until October 28, 2005.  In March 2005, Mother was determined to be disabled since September 2002 and received back benefits from March 2003.  Her children also received retroactive benefits from March 2003 and began receiving monthly benefits each month thereafter due to their mother’s disability.

The Court held that Mother was entitled to a credit against her child support arrearage for benefits received by her children.  She was given credit toward the arrearage back to the date that she filed her first petition to modify support – October 28, 2005, even though the trial court knew since November 2003 that she applied for benefits.

It is very important to file the Petition to Modify as soon as the disability petition is filed so that the court has the opportunity to modify the child support back to the date of disability onset.  It is also a good idea to ask the Social Security attorney or claimant’s representative to write a letter to the family court judge to advise the court on the status of the disability claim.  Social Security attorneys understand the lengthy disability process but many family court judges are unaware of how long the process may take. It is  good to give the court an explanation of the claim and how much longer it is expected to take.

I hope you found this discussion of Social Security Disability issues for the family lawyer helpful. Another thank you goes out to Stephenie Gookins’ for her participation in Law Tips.  You may benefit from her complete CLE presentation and that of  a host of excellent Family Law faculty members in a locale near you.  The 11th Annual Family Law Institute is available as a Video Replay Seminar near where you work or live or as On Demand Seminar from your home or office computer, Click Here.

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About our Law Tips faculty participant:
Stephenie K. Gookins is a partner at Campbell Kyle Proffitt LLP, Noblesville, Indiana.  Ms. Gookins’ practice areas include criminal law, divorce, family law, social security disability and appellate law. She is a 1998 graduate of the Indiana University Robert H. McKinney School of Law, Indianapolis.  Prior to entering private practice in Hamilton County, Ms. Gookins worked in the Contracts Department of Rolls-Royce.  She currently serves as a Public Defender in Hamilton County Superior Court 5 and is a member of Hamilton County Community Corrections Advisory Board.

About our Law Tips blogger:
Nancy HurleyLaw Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

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