LAW AND THE FAMILY
Social Security, Disability Benefits and Child Support
By Joel R. Brandes and Carole L. Weidman
New York Law Journal (p. 3, col. 1)
July 25, 1995
FOR MOST OF US, working with the Child Support Standards Act
(CSSA) is a frightening prospect. Perhaps those who think they have
completely mastered the ``Art of the Act'' better think again. For
this reason and more, when certainty approaches us in handling some
aspect of the CSSA it is more welcome than a cool breeze on a hot
summer's day. The recent decisions involving Social Security and
disability benefits are a grand addition to our developing an
arsenal of cases that have interpreted the act since its inception.
Passaro v. Passaro*1 was an enforcement proceeding in which the
Second Department reduced the amount of arrears by crediting the
father for Social Security disability payments made directly to his
children. The parties' 1980 divorce judgment provided for child
support payments of $50 per week for each of the parties' two
children. At the end of February 1980, the father suffered a severe
back injury that resulted in his inability to work. He received his
regular salary until April 12, 1980, at which time he became the
recipient of disability payments of $276 per week, less a deduction
for hospitalization insurance. He was entitled to receive those
payments in 1981 as well.
The Appellate Division held that the trial court erred in not
crediting the father with the amount of Social Security disability
benefits to be received by the children, simply stating that the
proceeding was distinguishable from Matter of Sergi v. Sergi,*2
where the Social Security disability benefits and increases for the
children were contemplated as part of the total support and that
here they were not.
Eleven years later in Matter of Graby v. Graby,*3 the father
appealed from a Family Court order that determined that Social
Security disability benefits paid to his children may not be
credited against his child support obligation absent a finding that
his share is ``unjust or inappropriate.'' Because the ``appeal
considered for the first time since the enactment of the CSSA the
question whether Social Security disability benefits paid to a
disabled parent's children are a credit against the disabled
parent's child support obligation'' leave to appeal was granted sua
Credit for Disability Payments
Justice Lawton, in a stunning decision, wrote a comprehensive
and well reasoned opinion for the court, holding that Social
Security disability payments received by a child as a result of a
noncustodial parent's disability shall be credited against the
noncustodial parent's child support obligation. In his analysis he
recognized that those payments are to be included in the disabled
parent's income under Family Court Act (FCA) Sec.413(1)(b)(5) for
the purpose of calculating a child support award under the State
In those cases where the court determines that the child support
award is ``unjust or inappropriate'' under Sec.413(1)(f), because of
the credit received by the disabled parent, the court may alter the
child support award. Moreover, because those payments are added to
the disabled parent's income, only in the most unusual cases should
the court alter the child support award because of the credit.
Petitioner and respondent were married in 1978 and divorced in
1990. The divorce judgment granted custody to respondent and
required petitioner to pay child support of $400 per week. In
January 1992, respondent petitioned for enforcement of those child
support payments, and petitioner cross-petitioned for a downward
modification on the basis of a substantial change in circumstance,
i.e., his loss of employment on Aug. 22, 1991. At that time,
petitioner's income consisted of unemployment benefits of $450 a
In September 1992, Family Court reduced petitioner's child
support payments to $112.50 a week, plus $27.50 a week toward
arrears. In August 1992, the Social Security Administration notified
petitioner that based on his total disability he was eligible for
benefits. Effective February 1992, petitioner became entitled to
Social Security disability payments of $1,037 a month, and his
children became entitled to payments totalling $518 per month. In
January 1993, those payments were increased to $1,068 per month for
respondent and $533 for the children. In October 1992, petitioner
sought to modify the prior order of support based on his total
disability. His income at that time consisted of the $1,037
disability payments and a monthly pension of $1,080.
The Family Court Hearing Examiner recalculated petitioner's
basic child support obligation, based on his pension and Social
Security disability benefits, to be $536.80 per month. Based on
Passaro, the Hearing Examiner credited the Social Security
disability payments paid to the children against his child support
obligation. Family Court vacated the order and remitted the matter
for a fact-finding hearing, concluding that, under the CSSA,
disability payments to the children could be credited against
petitioner's child support obligation only if it were determined
that the child support award was ``unjust or inappropriate.''
Implicit in the ruling was the holding that the disability payments
no longer were to be a credit against a child support obligation.
The Fourth Department disagreed, noting that historically a
majority of jurisdictions have credited Social Security disability
benefits paid on behalf of the children against the child support
obligation of the disabled parent, although most jurisdictions that
authorized such credit did not do so unconditionally. It also noted
that New York courts have followed the majority view and have
credited Social Security disability benefits paid for the benefit of
children toward a disabled parent's child support obligation, citing
The Fourth Department recognized that in 1983, when Passaro was
decided, no specific child support guidelinesexisted in New York. It
also noted that since the passage of the Family Support Act of 1988,
other jurisdictions have readdressed the issue and that a majority
of them continue to support the proposition that Social Security
disability benefits received by a disabled parent's child are a
credit against that obligation.
Justice Lawton concluded that the passage of the Family Support
Act of 1988, with the resulting enactment of state support
guidelines, has clouded the way that the states have considered
Social Security disability payments to the child of a disabled
parent. He found that a problem arises in fitting those payments
within guidelines that, in most instances, did not address them and
that, although New York's CSSA*5 contains a detailed formula for
determining child support awards, those payments are not directly
Justice Lawton recognized that FCA Sec.413(1)(b)(5) defines
``income'' and specifies that each parent's income includes the
amount of income or compensation voluntarily deferred and income
received, if any, from ``disability benefits'' and ``Social Security
benefits.'' He noted that Sec.413(1)(b)(5) (vii) of the FCA
specifies the deductions allowed from income before applying the
CSSA guidelines and that no specific provision authorizes a
deduction for Social Security benefits paid on behalf of a disabled
Moreover, while Sec.413(1)(f) of the FCA specifies 10 factors,
including income to the child, that the court must consider in
determining whether to modify the guideline award because such award
is ``unjust or inappropriate'' because Sec.413 (1) (f) does not
define ``income'' to a child, Social Security disability payments
are not expressly included under the statute as part of a child's
Although those payments are received by the child, they are not
from a source wholly independent of the parents but rather are
directly the result of the disabled parent's past efforts. Thus, the
question is whether that money constitutes a support payment by the
disabled parent, not whether it is one of 10 factors to be
considered in determining an award.
To hold that the receipt of that money is one of 10 factors to
be considered would place a disabled noncustodial parent in the same
position as a noncustodial parent whose children received income
from an independent source. That would be inappropriate because
Social Security disability payments received by children, unlike
other payments, are a federally established conduit of a disabled
parent's past earnings to that individual's children.
Justice Lawton stated that the FCA contains no provision
authorizing or prohibiting credit for Social Security benefits paid
to a disabled parent's children against a disabled parent's child
support obligation and concluded that the underlying theory,
followed in Passaro and by the majority of other jurisdictions, that
Social Security disability benefits paid to a child should be a
credit against the disabled parent's support obligation, is correct
and should be followed.
They are analogous to payments received by a child on a parent's
insurance policy and compensate for a parent's ``loss of gainful
employment by providing for the fulfillment of one's moral and legal
obligations to one's children.'' They are income ``earned'' by
working and paying into the system and serve as a substitute for the
wages that a parent would have earned but for the disability. Thus,
the disability benefits received by the child are a form of support
payment by the disabled parent.
The court also held that because the CSSA directs the inclusion
of both ``disability benefits'' and ``Social Security benefits'' in
a parent's income, the most equitable rule to follow is to include
the Social Security benefits paid to the children in the disabled
It is uplifting to see consistency on the subject among the
departments. In Patten v. Patten,*6 the Second Department affirmed
an order of the Supreme Court that enforced that part of the
parties' 1988 stipulation of settlement, that was incorporated in
and survived their 1989 divorce judgment, which provided that the
mother would accept the father's Social Security disability benefits
on behalf of the children in lieu of his child support payments, and
that he would be responsible for any deficit, i.e., if the benefits
amounted to less than $5,200 per year.
The agreement further provided that if the plaintiff received a
lumpsum payment for retroactive benefits on behalf of the children,
she was to reimburse the defendant for the child support payments
made by him for the period subsumed by the retroactive payment.
After the parties were divorced the Social Security Administration
approved the application for benefits on behalf of the children, and
in October 1991, it remitted a lumpsum check to the plaintiff, as
representative payee, of $14,200 to cover ``past benefits due'' and,
thereafter, made monthly payments for the children totaling $532 per
The former husband moved for enforcement of the stipulation, and
the mother countered that the provisions in question were illegal
and, accordingly, unenforceable. In addition, she cross-moved for an
upward modification of child support.
The Supreme Court granted the defendant's request for
enforcement of the child support provisions relating to the Social
Security payments, rejected the plaintiff's claim of illegality, and
concluded that the parties' unequivocal stipulation should govern.
In affirming, the Second Department stated that the principle that
Social Security disability payments received by a child by virtue of
the parent's disability may be credited toward the disabled parent's
child support obligation was expressed by it in Passaro.
The court pointed out that in Graby the Fourth Department
reexamined the issue and considered the continued validity of
Passaro in light of the guidelines set forth in the CSSA. It
determined that ``Social Security disability benefits received by a
child as a result of a noncustodial parent's disability shall be
credited against the noncustodial parent's child support
obligation,'' and it merely stated it agreed with the Fourth
Department's reasoning and conclusion and affirmed the portion of
the order appealed from which enforced the provisions of the
otherwise uncontroverted stipulation.
More Than One Child
Recently, in Matter of Lago v. Trabucco,*7 the question before
the Fourth Department was whether the Family Court properly denied
respondent a credit or offset against his total support obligation
for his oldest child for Social Security benefits received on behalf
of his youngest son. Justice Callahan, writing the opinion, and
cognizant of the court's 1994 ruling in Matter of Graby pointed out
that the court must now determine `` . . . what happens when a
support order covers more than one child and Social Security
benefits are not received by all the children subject to the support
This problem arose because, under federal law, a child is
entitled to receive Social Security benefits only until he or she
reaches the age of 18,*8 whereas under FCA Sec.413(1)(a), a parent
is responsible for the support of a child until the child attains
the age of 21.
The facts of the case are significant. The parties were
divorced. In 1991 when respondent was ordered to pay $145 per week
for the support of his two sons, he was employed fulltime earning
about $38,000 a year. In April 1993, he filed a petition seeking a
downward modification of the order, alleging that he had retired
from fulltime employment, was receiving Social Security benefits and
that petitioner was receiving Social Security benefits for the
children in the amount of $771 per month.
The Hearing Examiner found that respondent had established a
substantial change in circumstances and ordered that the prior
support order be modified by reducing respondent's obligation to
$100 per month effective Feb. 13, 1993, when he began receiving
Social Security benefits, and by increasing it to $200 per month
effective July 1, 1994, when the oldest son became 18. Respondent
filed objections, contending that he was entitled to credit for the
full amount of Social Security benefits received for both children,
which would result in a zero support order.
In reliance on Graby, Family Court concluded that, because the
children received $776 per month in Social Security benefits, which
was more than what respondent was obligated to pay under the 1991
order, he was entitled to a credit for those payments, resulting in
a zero support order. The court also determined that, when the older
boy reached his 18th birthday, the prior support order would be
reinstated and respondent would be obligated to pay $72.50 per week
for that child because his Social Security benefits would have
The Fourth Department affirmed. It held that the trial court
properly made a bifurcated application of the Graby rule with
respect to the child who was no longer receiving Social Security
benefits because under federal law, Social Security benefits paid
for the benefit of a child pursuant to 42 USC Sec.402 are only for
the use and benefit of that child, and the Social Security benefits
received by petitioner on behalf of her youngest child were to be
used exclusively for his benefit.
Thus, it concluded that respondent was not entitled to any
credit or offset for the Social Security benefits received on behalf
of the youngest son against his total child support obligation after
the eldest son's entitlement to Social Security benefits terminated.
The child support obligation for respondent's eldest son after July
1, 1994, had to be calculated under the CSSA. The court properly
calculated the child support obligation for respondent's eldest son
under the CSSA. Because the amount that respondent would be required
to pay under the CSSA was substantially the same as the amount he
was obligated to pay under the prior support order, the Appellate
Division held that the Family Court did not err in reinstating the
prior support obligation with respect to the child who was not
receiving Social Security benefits.
(1) 92 AD2d 861, 459 NYS2d 839 (2d Dept., 1994).
(2) 58 AD2d 692.
(3) 196 AD2d 128, 607 NYS2d 988 (4th Dept., 1994).
(4) Citing Passaro v. Passaro, 92 AD2d 861.
(5) FCA 413 and Domestic Relations Law Sec.240(1-b).
(6) 203 AD2d 441, 610 NYS2d 575 (2d Dept, 1994).
(7) 207 AD2d 92, 621 NYS2d 824 (4th Dept., 1994).
(8) See 42 USC 402 (d)(1)(B).
Joel R. Brandes and Carole L. Weidman have law offices in New York City
and Garden City. They co-authored, with the late Doris Jonas Freed and
Henry H. Foster, Law and the Family, New York (Lawyers' Co-Operative
Publishing Co., Rochester, N.Y.) and co-authored the annual supplements.