Loss of employment income due to disability can and be one of life’s most devastating occurrences. This process is particularly difficult for those with children to support. In the current economic climate, employer provided traditional medical and disability benefits are under extreme pressure resulting in fewer people with short and long term disability benefits. Federal Social Security disability benefits are not only an income safety net for working parents, but income for their children as well. Family law practitioners representing divorced and disabled individuals may find it beneficial to their clients to become familiar with the support benefits available to disabled individuals and their children, and the treatment of such disability benefits under Illinois law with respect to child support orders.
How to determine if your client will qualify for Social Security Disability?
"Disability" is defined as: "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continued period of 12 months." 1
The Social Security Disability application process can be quite lengthy. In some cases, it can take up to two years from the commencement of the application for a claimant to receive a final decision from the Social Security Administration deciding whether or not they are approved for benefits. A careful review of the client’s medical records is recommended to determine if the client objectively suffers from a medically determinable impairment.
A medically determinable impairment, as the term is used in the various definitions of disability, is one that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 2
In other words, a medically determinable impairment is any physical or mental limitation that is supported by objective medical evidence, e.g. physician’s opinion, medical records and tests. Depression, asthma, various spinal disorders, including but not limited to, degenerative disk disease, spinal stenosis and osteoarthritis are all examples of medically determinable impairments which may render an individual disabled. Claimants must prove that their disability is such that they would be unable to perform even sedentary work related activities and that their disability is expected to last at least twelve months in duration or result in death.
The Social Security Administration has two disability programs, Retirement & Survivors Insurance Income (RSDI, Title II) and Supplemental Social Security Income Benefits (SSI or Title XVI). A disabled wage earner may become entitled to Title II Insurance benefits based on their earnings record and work credit hours. Whether a claimant has the required insured status depends on the number of quarters (QC) of coverage they have acquired. In general, a claimant is credited with quarters based on the wages they are paid and the self employment income they derive. 3
SSI benefits may be payable to disabled individuals who are indigent, do not have a lengthy work history and who do not meet the earning requirements of Title II. A claimant must meet certain non medical requirements to be entitled to of SSI benefits. Many factors are used in determining whether or not an individual meets the non medical requirements of SSI, including the amount of real or personal property a claimant may own. In order to receive SSI benefits, a claimant cannot own countable real or personal property (including cash) in excess of a specified amount at the beginning of each month. For an individual with an eligible or ineligible spouse, the applicable limit is one and one-half times as much as that for an individual without a spouse; these limits are set by law. 4
Once an individual is approved for disability benefits, either under Title II or SSI Title XVI programs, the claimant will receive monthly disability benefits. In addition, the claimant may be entitled to receive retroactive benefits based on a claimant’s alleged disability onset date. For instance, if a person applies for disability benefits on January 1, 2006, alleging that his or her disability commenced on January 1, 2005, and the disability claim is approved with the January 1, 2005, onset date, the Administration will pay the claim retroactively for one full year, less a five month waiting period.
Social Security Child Benefits
The claimant may also be entitled to benefits for their children called, auxiliary benefits which are additional monthly benefits. These auxiliary benefits are calculated and payable to other family members based on the disabled worker’s earnings record. A child must be dependent of the worker to qualify for such benefits on the worker’s Social Security record.5 A child of an individual entitled to disability insurance benefits is entitled to child’s insurance benefits if the child is under age 18, is a full-time elementary student, or is 18 years of age or older and has a disability that began before age 22, or is 18 years of age or older and qualifies for benefits as a full time student. The term child includes, under specified conditions, an adopted child and a stepchild, as well as a grandchild or step-grandchild who does not have a parent or whose parent is disabled.6
Child Disability Benefits are a Credit Against Child Support Orders
The courts across the nation have struggled with the concept of whether or not child benefits payable under the Social Security disability programs should be credited against the support obligation of a disabled obligor parent. Illinois follows the majority view on the issue that Social Security benefits paid on behalf of the non custodial parent satisfy the parent’s child support obligation for the period that such benefits are received. Marriage of Henry 7
In Henry, the obligor petitioned the trial court for modification of his child support obligation. The Illinois Supreme Court stated that the clear intent of the Illinois legislature is set forth in 750 ILCS 5/510. Any judgment respecting maintenance or support is to be modified only to installments accruing subsequent to due notice by the moving party.8 However, the Henry court held that Social Security dependent disability benefits paid on behalf of an obligor, satisfied such parents child support obligation. The court came to this conclusion after analyzing both the minority and majority view of several state courts opinions on this issue. The prevailing logic on the matter is that since Social Security disability benefits are earned, and are based upon the earnings record of the primary beneficiary, such benefits should be regarded as income. Flemming v. Nestor. 9 The court analogized income from Social Security child benefits as identical to income derived from employment by the non custodial parent. The court, cited the rationale of Jamizez v. Weinberger 10, "Social Security death benefits represent money earned and contributed through the efforts of a working parent... which payments, like the proceeds of an insurance policy, substitute as income to the worker’s family should he . . . become disabled." The Henry court further relied on authority that held that Social Security dependent disability benefits replace support the child loses upon the disability of the parent wage earner, responsible for the child’s support. Tossie v. Califano 11
The Henry court reasoned that reliance on such disability benefits is warranted as a substitute for an obligor’s loss of earning power and obligation to support his dependents. Schulze v Jensen 12 Therefore, the Illinois Supreme Court in Henry found that there really is no distinction between Social Security child disability benefits and those child support benefits paid from the non custodial parent’s wages, and therefore, credit shall be given for such benefits against a non custodial parent’s child support account. 13 Interestingly, Justice Heiple, dissented upon the basis that the court’s ruling in Henry amounted to "sub silentio and retroactive modification of a child support order, previously deemed to be impermissible" Justice Heiple specifically referred to the non custodial parent’s delay in applying for modification of the child support order immediately upon the occurrence of his disability. Thus, suggesting that a claimant’s timely petition for modification of a child support order would avoid what Justice Heipel apparently considered a silent and automatic modification of a child support order. 14
Timely Petition to Modify
Illinois law is clear that child support may be modified only as to installments accruing, subsequent to due notice by the moving party of the filing of a petition for modification.15 Further, the primary basis on which a modification for child support shall be ordered, is upon the showing of a substantial change in circumstances which would properly include loss of employment income. Marriage of Donovan 16 and Marriage of Chenoweth. 17
The burden of demonstrating that a substantial change in circumstance has occurred and that modification of a judgment respecting child support is justified rests on the party seeking modification. Potter v. Potter 18. Since Illinois law does not provide for retroactive modification of child support orders, in behooves the practitioner faced with a client experiencing disability and lack of income as a result of such disability to petition the court, as soon as possible, for a modification of the child support order. The petition should request the court to postpone ruling on such petition, until the Social Security Disability appeals process is concluded.
Another potential problem facing a practitioner attempting to modify a child support order is demonstrating to the court that the alleged disabled person has a meritorious disability case. Financial inability to comply with the child support order must be shown by definite and explicit evidence, and that burden is not met by testimony of a general nature with regard to the non custodial parent’s financial status.19 Additionally, in order to meet the burden of proving a substantial change in circumstance sufficient to warrant abatement or modification of a child support order, definite and explicit evidence must be presented concerning the non custodial parent’s termination of employment.20
The Second District, Appellate Court in the Marriage of Lyons , found that notwithstanding a non custodial parent’s claim that an injured foot kept him from working, there was insufficient medical evidence to support his claim. 21 The court concluded that the obligor parent was able to perform his former work, that the change in jobs was not done in good faith and was a deliberate attempt to evade the support obligations to his children. Likewise, in the Marriage of Chenoweth, the court found that changes in an economic circumstance sufficient to justify modification of a child support order, must be "fortuitous in nature and not the result of deliberate action by the party seeking reduction or termination." In Chenoweth, the non custodial parent voluntarily terminated his employment on the basis that he felt depressed at the time, although he never sought medical attention. The court held that unless good faith is shown, such voluntary change of employment would not be considered a sufficient material change to warrant modification of child support. 22
Illinois courts will consider a change in a party’s income, as a basis to support a material change in circumstances argument, justifying a modification of a child support order. Weinart v. Wienart 23 A temporary suspension from one’s employment income, is not permanent and therefore, not sufficient to support a modification of a child support order. Gaines v. Gaines 24 However, the court did find in Rogers v. Rogers , that loss of employment income as a result of a disability is a sufficient change in circumstances to support a petition to modify child support. 25
Garnishment of Social Security Disability benefits
Social Security defines "Child Support Payments" as a payment from a parent to or for the child to meet the child’s needs for food, clothing, and shelter. Child support can be in cash or in-kind and can be voluntary or court ordered. 26
As part of the Child Support Enforcement Act of 1975, Congress enacted a limited waiver of the section 207 protection to allow garnishment of certain payments or benefits under the Social Security Act to enforce child support and alimony obligations. Enactment, section 459 (a) of the SS Act, 42 USC § 407, provides as follows:
Notwithstanding any other provision of law (including section 207), effective January 1, 1975, moneys (the entitlement to which is based on remuneration for employment) due from, or payable by, the United States. . . to any individual... shall be subject, in like manner and to the same extent as if the United States, were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments. However, effective September 3, 1991, the Office of Personnel Management amended its regulations to clarify that SSI benefits are not "remuneration of employment" and therefore, are not subject to garnishment for child support and alimony.27 The regulations authorize withholding child support obligations from disability insurance benefits, but do not authorize withholding child support obligations from SSI. 28
The rationale for exempting SSI disability befits from garnishment is because SSI benefits are designed to provide for minimum needs for the individual recipient and should not be considered income for any other purpose. 29
Social Security children benefits are an available source of income to obligors to satisfy their child support obligations. However, as a practical matter, due to the often lengthy claim processing time frame, family law practitioners would be wise to alert their clients, who may anticipate terminating their employment due to illness, to start the Social Security disability application process early, once they have left their employment. The disabled obligor should also timely petition the court to modify their child support order.
Cases and Authority
1. Title 42 U.S.C.A. Sec. 416 (I), 423 (d), and 20 CFR Sec. 404.1505 of the Social Security Act
2. 20 CFR Sec. 404.1508, 404.1513.
3. 20 CFR404.101
4. SSA-HDBK s 2113.2 2001 WL 34314261
5. SSA-HDBK § 333
6. 20 CFR § 404.350
7. In re: Marriage of Czarist Henry and Joseph Henry, 156 Ill2d 541, 622 N.E.2d 803(1993)
8. Id. at 806
9. Flemming v. Nestor, 363 U.S. 603, 609, 80 S.Ct. 1367, 1371, 4 L.E.2d 1435 (1960)
10. Jamizez v. Weinberger, 417 U.S. 628, 634, 94 S. Ct. 2496, 2500, 41 L.Ed.2d 363, 369 (1974)
11. Tossie v. Califano, 630 F.2d 1328, 1337 (9th Cir. 1980)
12. Schulze v. Jensen, 191 Neb. 253, 257, 214 N.W.2d 591, 594 (1974)
13. Henry, Supra at 809
14. Id. at 810
15. 750ILCS 5/510
16. In re the Marriage of Barbara G. Donovan and David John Donovan, 122 Ill.App.3d 803, 462 N.E.2d. 9 (4th Dist. 1984)
17. In re the Marriage of Judith Ann Chenoweth (now Collins) and Richard Wayne Chenoweth, 134 Ill.App.3d 1015, 481 N. E.2d 765 (5th Dist. 1985)
18. Potter v Potter, 88 Ill. App. 3d 606, 410 N.E. 2d 999 (4th Dist. 1980)
19. Chenoweth , Supra at 1019
20. Id. at 1019
21. In re the Marriage of Judith M. Lyons and Jerome Lyons, 155 Ill. App.3d 300, 508 N.E.2d 458, 108 297 (2nd Dist. 1987)
22. Chenoweth , Supra at 1017
23. Rosanne Weinert v. Walter Wienert, 105 Ill. App. 3d 56, 433 N.E. 2d 1158, 60 Ill.Dec. 920 (2nd Dist 1982)
24. Gaines v. Gaines, 106 Ill.app.2d 9, 245 N.E.2d 574 (1st Dist. 1999)
25. Rogers v. Rogers, 118 Ill. App.3d 334, 454 NE.2d 1153 (5th Dist. 1983)
26. SSA POMS SI 00830.420
27. See 56 Fed. Reg. 36723
28. 20 CFR § 404.1820 (b) and CFR § 416.533
29. Becker County Human Services v. Peppel, 493 N.W. 2d 573, 574
Harold W. Conick is a Principal of Harold W. Conick & Associates, Wheaton. His practice is concentrated in Social Security disability claims, civil litigation and transactions. He received his Undergraduate Degree from Loyola University and his Law Degree in 1980 from Northern Illinois University. He may be reached at firstname.lastname@example.org.
The author thanks Tess Pisarski, a Paralegal at Harold W. Conick & Associates for her assistance with this article.