SSA and Child Support: What Information is Available and How Do We Use It at the Local Level?

1. SSA and Child Support: What Information is Available and How Do We Use It at the Local Level?

2. SSA and Child Support: How Do We Use It at the Local Level? Sarah B. Troyer Deputy Prosecuting Attorney St. Joseph County, Indiana Office of Michael A. Dvorak, Prosecuting Attorney 227 W. Jefferson Blvd 6th Floor South Bend, IN 46601 (574)235-9786 stroyer@stjoepros.org

3. St. Joseph County islocated in North Central Indiana along the Michigan border St. Joseph County currently has approximately 16,000 open IV-D child support cases Indiana is a judicial state: the court must enter orders St. Joseph County, Indiana

4. Indiana Child Support Rules and Guidelines Indiana Child Support Rules and Guidelines • Adopted by the Indiana Supreme Court in 1989 • Amended in 1993, 1998, 2003 and 2009 • Indiana is currently operating under the 2009 amended Guidelines, which became effective January 1, 2010 In any proceeding for the award of child support, there is a rebuttable presumption that the calculation resulting from the application of the Guidelines is the correct amount of child support to be awarded. Source: Indiana Child Support Rules and Guidelines: Support Rules 1-3

5. Case Law: Credit for SSD Benefits Prior to 2010 Brown v. Brown, 849 N.E.2d, 610 (Ind. 2006) • Noncustodial parent was awarded SSD benefits and the child was awarded a monthly derivative benefit, as well as a lump-sum payment of retroactive benefits. • Noncustodial parent sought credit against his arrearage as well as his ongoing support obligation. • Trial court held that the retroactive lump-sum payment was not child support and would therefore not be credited against an existing arrearage. Noncustodial parent appealed, and the Court of Appeals upheld the Trial Court’s decision.

6. Case Law: Credit for SSD Benefits Prior to 2010 Brown v. Brown, 849 N.E.2d, 610 (Ind. 2006) • Indiana Supreme Court holds that a disabled parent is entitled to credit against the parent’s ongoing child support obligation for SSD benefits paid to a child, effective as of the date the parent files a Petition to Modify Support. • Court holds that any monthly SSD benefits received by the child in excess of the support obligation shall be treated as a gratuity and not a credit against an existing arrearage. • Court finds that a lump-sum payment received by a child cannot be credited against the noncustodial parent’s support arrearage that accumulated prior to the filing of the Petition to Modify Support. • Indiana Supreme Court reversed the judgment of the Trial Court and remanded for further hearing on the issues pursuant to these findings.

7. Case Law: Credit for SSD Benefits Prior to 2010 Hieston v. State, 885 N.E.2d 59 (Ind. Ct. App. 2008) • Noncustodial parent filed two Petitions to Modify Support, one in October of 2005 and one in January of 2006. The first petition did not cite Mother’s application for SSD benefits as the reason for requesting modification, but rather stated that one of her children was living with her. • In March of 2006 Mother was awarded SSD benefits, with the children receiving a monthly benefit as well as a retroactive lump-sum award. • Trial Court held, in accordance with Brown, that noncustodial parent was entitled to a credit for the lump-sum payment toward her existing arrearage from the date of the first Petition to Modify Support, in October of 2005. • Trial Court also held that Mother was entitled to a modification of her ongoing support obligation, due to monthly benefits being received by the children, effective as of the date of her second Petition to Modify Support.

8. Case Law: Credit for SSD Benefits Prior to 2010 Hieston v. State, 885 N.E.2d 59 (Ind. Ct. App. 2008) • The Trial Court also determined that any SSD benefit received by the children that exceeded the modified support obligation was to be treated as a credit against the existing arrearage. • Mother filed her Notice of Appeal shortly thereafter. The State filed a Motion to Correct Error on the issue of whether benefits received by the children in excess of the ongoing support obligation should be treated as a credit toward the ongoing arrearage. The Trial Court did not rule on the State’s Motion, thereby denying it. The State then filed a cross appeal. • The Court of Appeals was faced with two questions: • What is the correct effective date of credit against the arrearage? • Should ongoing SSD benefits received by the child that exceed the support obligation be treated as a credit against an existing arrearage?

9. Case Law: Credit for SSD Benefits Prior to 2010 Hieston v. State, 885 N.E.2d 59 (Ind. Ct. App. 2008) Effective Date of Credit Against Arrearage: • Noncustodial parent argued that credit should be made retroactive to date she informed the Court she had applied for SSD benefits (in 2003) rather than the date she filed her Petition to Modify Support. • The Court of Appeals held that, pursuant to Brown, the Trial Court correctly determined that the effective date of Mother’s credit against her arrearage for the lump-sum retroactive benefits paid to the children was the date she filed her Petition to Modify Support.

10. Case Law: Credit for SSD Benefits Prior to 2010 Hieston v. State, 885 N.E.2d 59 (Ind. Ct. App. 2008) Credit v. Gratuity of Benefits Exceeding Support Obligation: • State argues that pursuant to the holding in Brown, the excess benefits should be treated as a gratuity rather than a credit against an existing support arrearage. • The Court of Appeals holds that based on the holding in Brown, the Trial Court erred by treating the excess of the children’s SSD benefits as a credit against Mother’s support arrearage. • The case was remanded back to the trial court with instructions to either order the excess be treated as a gratuity or to modify Mother’s support obligation to reflect the SSD benefits.

11. Case Law: Social Security Retirement Benefits Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995) • Trial Court denied noncustodial parent’s request to offset his support obligation with the Social Security Retirement benefits being paid to his children as a result of his retirement. • The Court of Appeals reversed the decision of the Trial Court, holding that the Court must give credit against the noncustodial parent’s child support obligation when Social Security benefits are received by a child as a result of the noncustodial parent’s retirement. • The Indiana Supreme Court disagreed with the appellate ruling, holding that Social Security Retirement benefits may, at the Court’s discretion, be credited to the noncustodial parent’s support obligation. The credit is not automatic. The presence of Retirement benefits is simply one factor the Court should consider in modifying a support obligation.

12. 2010 Indiana Child Support Rules and Guidelines • SSA Benefits Included in Calculating Weekly Gross Income: • Social Security Retirement Benefits • Social Security Disability Benefits • SSD benefits paid for the benefit of the child must be included in the disabled parent’s gross income • SSA Benefits Excluded From Weekly Gross Income: • Supplemental Security Income • Survivor Benefits received by or for other children residing in either parent’s home Source: Indiana Child Support Rules and Guidelines: Guideline 3(A)

13. 2010 Indiana Child Support Rules and Guidelines • Benefits received by the custodial parent, as representative payee of the child, based on the noncustodial parent’s earnings or disability shall be considered as a credit against the noncustodial parent’s support obligation as follows: • Social Security Retirement Benefits: These benefits may, at the court’s discretion, be credited against the noncustodial parent’s support obligation. The credit is not automatic. Stultz v. Stultz, 659 N.E.2d, 125 (Ind. 1995). • Social Security Disability Benefits: These benefits shall be included in the weekly gross income of the noncustodial parent and applied as a credit to the noncustodial parent’s current support obligation. The credit is automatic. Indiana Child Support Rules and Guidelines: Guideline 3(G)(5).

14. Modifying Support Orders with SSA Benefits Modification of Support with Social Security Disability Benefits: • Filing a Petition to Modify Support based on SSD Benefits does not relieve the noncustodial parent’s obligation to pay support • Filing preserves date for retroactivity of modification • The award of SSD Benefits retroactive to a specific date does not modify the support obligation to the same date. The duty to pay support cannot be retroactively modified earlier than the filing date of a petition to modify child support. I.C. § 31-16-16-6

15. Example NCP receives SSD benefits in the amount of $500 per week. CP earns $300 per week through employment. The child receives a derivative benefit of $100 per week Modification Example Using SSD Benefits

16. SSD Benefits and Arrearages The amount of current Social Security Disability benefit that exceeds the child support order shall be treated as an ongoing credit toward an existing arrearage. A lump sum payment of retroactive SSD benefits shall be applied as a credit against an existing child support arrearage if the custodial parent, as representative payee, received a lump sum retroactive payment, without requirement of a filing of a Petition to Modify Child Support. Source: Indiana Child Support Rules and Guidelines: Guideline 3(G)(5) Impact of SSD Benefits on Arrearage

17. SSD Benefits and Arrearages Continued No credit shall be given for a lump sum disability payment paid directly to a child who is over the age of eighteen (18). A custodial parent should never be required to pay restitution to a disabled noncustodial parent for lump sum retroactive Social Security Disability benefits which exceed the amount of “court ordered” child support. Any benefit amount which exceeds the arrearage is treated as a gratuity to the children. Source: Indiana Child Support Rules and Guidelines: Guideline 3(G)(5) Impact of SSD Benefits on Arrears

18. Case Law: Credit for SSD Benefits Post 2010 Anderson v. Anderson, 955 N.E.2d 236 (Ind. App. 2011) • Noncustodial parent sought credit against his arrearage for periodic SSD benefits paid to the child prior to the date his Petition to Modify Support was filed, pursuant to the 2010 Indiana Child Support Rules an Guidelines. • Trial Court held that father was entitled to credit for the lump-sum payment received by child prior to the filing of the Petition, but did not give credit for periodic payments received by the child prior to the Petition date. • Court of Appeals reversed the decision of the Trial Court, holding that there is no reason to treat lump-sum payments and periodic payments differently, and these payments shall be applied as a credit to an existing child support arrearage without the need to file a petition for modification.

19. Obtaining SSA Benefit Information St. Joseph County Policy and Practice How do we obtain Social Security Benefit Information? • Administrative Hearings • SSA Verification Letters • ISETS • ICES • FPLS

20. Filing Petitions to Modify St. Joseph County Policy and Practice Social Security Disability Benefits • State files petition as soon as we know noncustodial parent has applied for benefits • No hearing is set until benefits are received • This preserves the filing date for retroactive modification • Once benefits are received we hold a hearing to appropriately calculate support Supplemental Security Income • State files Petition to Modify Support with Waiver of Hearing and Proposed Order once benefits have been received • If the custodial parent has an objection to the petition, a hearing is set. If no objection is made, the Court enters the order without hearing • The orders are then modified to $0/wk and the case is closed due to SSI