Social Security benefits are something family law attorneys routinely address when a couple divorces.  These are most often social security retirement benefits.

There is another type of social security benefit that pops up less frequently but that is also relevant for family law attorneys to know about: Social Security Disability Insurance (SSDI) dependent benefits.

If a person is determined to be disabled, then a child of that person may be entitled to SSDI dependent benefits based on the parent’s disability. This type of benefit becomes relevant in determining a disabled parent’s child support obligation.

A recent Illinois appellate case addressed this issue.[1]  The trial court ordered that the SSDI benefits received by the disabled father must be placed in a joint account to be used for the child’s expenses and that any monthly unused amount must be saved for the child.

The appellate court overturned the trial court’s ruling, however, finding that the SSDI dependent benefit is “generated through the labor and earnings of the worker for the purpose of supporting his dependent children if he is ever unable to do so” and that said benefit is intended to be used by the benefit-generating parent for the current support of the child; any excess amount is considered “a gratuity”[2] to the child – it cannot be ordered to be saved for future use.

As of July 1, 2017, Illinois Marriage and Dissolution of Marriage Act (IMDMA)[3] is clear that the SSDI dependent benefit is considered part of the benefit-generating parent’s income for the purpose of determining child support.  The benefit-generating parent then receives a credit for the benefits against that parent’s child support obligation.[4]

In the unfortunate event that a parent in a family law case is disabled or becomes disabled during the pendency of litigation, it is important to know that SSDI dependent benefits may be an option to help support the child(ren), and to know how said benefits are used to determine a parent’s child support obligation.

Divorce and Family Law Attorney;  Elizabeth Szabo

[1] In re Marriage of Benyon, 2019 IL App (3d) 180364 (unpublished).

[2] Benyon, 2019 IL App (3) 180364 ¶ 11 (citing Childerson v. Hess, 198 Ill. App. 3d 395, 399 (1990)).

[3] 750 ILCS 5/505(a)(3)(A)

[4] In Benyon, the parties equally shared parenting time of the child and there was no child support ordered to be paid from one party to another; the appellate court ordered father to receive the funds to use for the child’s support during his parenting time.