Social Security, Alimony & Child Support

While Colorado’s definition of income for purposes of calculating child support and maintenance is broad, Social Security is a massive, complicated program with payments based upon age, disability, and need, and payments to the employee, children, and even step-children. Each of these different types of payments has different rules as to whose income it is treated as.

Social Security as Income for Purposes of Alimony & Child Support

Social Security benefits, including survivor benefits paid for the death of a spouse, and Social Security Disability, are treated as income for the purposes of calculating alimony (C.R.S. 14-10-114(8)(c)(I)(P)) and child support (C.R.S. 14-10-115(5)(a)(I)(P)).

Means-tested programs, including Supplemental Security Income (SSI) are not income for purposes of calculating maintenance (C.R.S. 14-10-114(8)(c)(II)(B)) or child support (C.R.S. 14-10-115(5)(a)(II)(B)).

Social Security Payments for Child Not Income to Parent

Social Security survivor benefits paid due to death of child’s stepparent are not income of the parent for purposes of alimony (C.R.S. 14-10-114(8)(c)(II)(D)) or child support. (C.R.S. 14-10-115(5)(a)(I)(P)).

Social Security Survivor benefits to a child. In In re: Marriage of Ross-Ooley and Ooley, 251 P.3d 1221, 1224 (Colo. App. 2010), the wife was a widow with two sons from her prior marriage, receiving Social Security survivor benefits on behalf those sons. The court held that the payments are excluded as income: “Social Security benefits received on behalf of a child, even if paid to the parent, are the child's financial resource.”

The distinguishing factor is whether funds received by the parent are received in the parent’s own right, or as a representative for the child, regardless of whether such benefits are survivor benefits, or disability benefits.

Social Security paid due to non-custodial parent’s retirement/disability. When Social Security or disability benefits are paid to a child by virtue of the non-custodial parent’s retirement or disability, those payments result in a dollar-for-dollar offset against that parent’s child support obligation. C.R.S. 14-10-115(11)(c) provides:

“In cases where the custodial parent receives periodic disability benefits granted by the federal "Old-age, Survivors, and Disability Insurance Act" on behalf of dependent children due to the disability of the noncustodial parent or receives employer-paid retirement benefits from the federal government on behalf of dependent children due to the retirement of the noncustodial parent, the noncustodial parent's share of the total child support obligation as determined pursuant to subsection (8) of this section shall be reduced in an amount equal to the amount of the benefits.” (Emphasis added).

Moreover, if a lump sum is paid for retroactive Social Security or Social Security Disability, such payment must be credited against any past-due or retroactive child support judgment. C.R.S. 14-10-115(11)(d).

There is a third situation, however, not addressed in the child support statute: when a child is entitled to receive Social Security payments due to the disability of the custodial parent (which the disabled parent would likely control as the child’s representative). The courts have therefore stepped in.

Social Security to child due to custodial parent’s disability. Social Security Disability payments paid to a child for a parent’s disability count as income to the child, not the parent, even if the parent actually receives the payments as the child’s representative. In re: Marriage of Anthony-Guillar, 207 P.3d 934 (Colo. App. 2009). See also In re: Marriage of Quintana, 30 P.3d 870 (Colo. App. 2001). However, this also means that for purposes of child support, such payments drastically reduce the child support owing.

Social Security to child retained by non-custodial parent. As indicated above when the custodial parent receives Social Security benefits as the child’s representative which were paid to the child, such payments count as income to the child, not the parent. However, this does not apply when the non-custodial parent receives benefits owing to the child - such payments are income to the parent, not the child, as they do not reduce the child’s basic needs. In re: Marriage of Zappanti, 80 P.3d 889 (Colo. App. 2003).

Supplemental Security Income (SSI) payments to a child do not count as the child’s income as “Such payments represent gratuitous contributions from governmental agencies and do not reduce the parent's duty to provide support.” In re: Marriage of Thornton, 802 P.2d 1194, 1196 (Colo. App. 1990).

Finally, though Social Security payments count as the child’s income, it is not automatic: “in those cases in which a child support obligation has been ordered and the obligated parent becomes eligible for Social Security benefits, a motion to modify child support is required before the child support obligation of the parent may be reduced by the amount of Social Security benefits paid for the benefit of the child.” In re: Marriage of Wright, 924 P.2d 1207, 1209 (Colo. App. 1996).

Garnish Social Security for Child Support & Alimony

Can Social Security benefits be garnished for alimony or child support? Yes. Pursuant to 42 U.S. Code § 659(a), Social Security may be garnished to collect child support or alimony. Note, however, that this is for regular Social Security benefits.

Social Security Disability (SSD) payments can also be garnished for child support or alimony, as the payments are considered compensation for past employment, rather than being based upon need. 42 U.S. Code § 659(h)(1)(A)(ii)(I). See also 5 C.F.R. § 581.103(c)(1).

Supplemental Security Income (SSI), which is needs-based, may not be garnished, even for child support or alimony. See 42 U.S. Code § 1383(d), which incorporates the anti-assignment provision of 42 U.S. Code § 407, does not except out garnishing child support or alimony, and 5 C.F.R. § 581.104(j) which express prohibits garnishing SSI for alimony or child support.

Note, however, that garnishment of social security does not imply the ability to order that one parent name the other as representative payee. The Colorado Court of Appeals reversed a trial court for doing just that - ordering an incarcerated parent to restore the other parent as his SSDI payee. E.Q., 2020 COA 118. See our blog post for a more in-depth discussion of the E.Q. case.

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