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Social Security and Child Support

MPLP Spring 2007 Family Law Section Newsletter Article

                Issue 33, Spring 2007

Social Security and Child Support

 by Rebecca Shiemke, MPLP Family Law Staff Attorney

The Supplemental Security Income (SSI) program is a federal needs-based entitlement program and all benefits are absolutely inalienable.  The SSI program was intended″ to assist those who cannot work because of age, blindness, or disability.″ Included within the category of ″disabled″ under the program are those ″unable 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 continuous period of not less than twelve months.″  Therefore, SSI recipients should not be ordered to pay child support or ordered to pay child support arrearages when the recipient has no other income other than means-tested SSI benefits.

In a child support action, the court must order support in an amount determined by application of the child support formula.  MCL 552.605.  Under the Michigan child support formula of 2004 (2004 MCSF), SSI benefits are a means tested source of income and may not be counted as income.  2004 MCSF 2.05(A), 2.09. Further, the formula unequivocally states that imputation of income for the purpose of determining a support obligation is not appropriate where a payer′s source of income is means-tested.  2004 MCSF 2.10(F).  See also, Ghidotti v Barber, 459 Mich 189 (1998).

Congress protected SSI benefits from legal process when it enacted the SSI program. The anti-alienation statute, 42 USC 407, applicable to SSI through 42 USC 1383(d)(1), provides:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

Under Michigan Law, means-tested income is inalienable pursuant to MCL 400.63, a statute very similar to the federal anti-alienation statute. Michigan courts have consistently determined that the use of contempt power to require a party to pay child support from inalienable government benefits, such as SSI, would violate the inalienability provisions applicable to such benefits.  Causley v LaFreniere, 78 Mich App 250 (1977); Proudfit v O′Neal, 193 Mich App 608 (1992).

In a similar case, Lapeer County Department of Social Services v Harris, 182 Mich App 686, (1990), the payer received needs-based general assistance (GA). The court held that ordering child support was an improper alienation of the payer′s benefits and ordering support from general assistance was error.

In Gonzalez v Gonzalez, 121 Mich App 289, (1982), the defendant′s sole source of income was ADC, and he was ordered to pay child support or serve jail time. The Court of Appeals held that because ADC benefits are inalienable and the defendant had no other means of support, the child support order entered against defendant was not within the power of the court.

Other states′ courts have determined that SSI benefits are not subject to legal process for payment of child support.  In Marrocco v Giardinao, 767 A. 2d 720 (Conn. 2001), the court held that it was reversible error to require a father whose sole source of  income was SSI to pay child support out of that income.  In Ward v Ward, 763 N.E. 2d 480 (Ind. App. 2002), the court held that SSI recipients cannot be held in contempt for failure to comply with child support orders.

Just as a child support or income withholding order is inappropriate where the parent has no income but means tested income, a contempt order is prohibited in such an instance. Michigan courts have ruled that a contempt order for unpaid child support is inappropriate where the parent′s income consists of means tested income. Gonzalez, 121 Mich App at 291. The defendant in Gonzalez had two options: pay child support out of his means tested income or go to jail for 60 days. Because means tested income is inalienable, the Michigan Court of Appeals held that such a contempt order is improper. Id.

The dilemma comes when the Michigan child support formula is applied to a recipient of SSI or other needs-based benefits.  Although the formula prohibits counting SSI as income or imputing income to an SSI recipient, the formula also mandates a minimum support order of $25.00 per month, unless the court deviates.  2004 MCSF 1.08.This mandatory minimum appears to directly contradict the other provisions of the formula, particularly the provision that SSI benefits are not considered income.  If SSI benefits are not income, the recipient′s income would be $0.  It would be impossible to pay $25.00 out of an income of $0 and could only happen if the recipient applied SSI benefits to the support order, which is clearly prohibited by federal anti-alienation statutes and Michigan case law.   One could argue for deviation for all of the above reasons, but the better result for all needs-based recipients would be a modification of the formula to exempt all needs-based recipients from the mandatory minimum.         

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