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Discussion in 'Other Family Law Matters' started by JakeFirst, Dec 18, 2020.

  1. JakeFirst

    JakeFirst Law Topic Starter New Member

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    I am asking a question for my girlfriend who is a bit worked up this evening. My GF has been divorced for 5 years. She has 2 childen with her ex-husband. The youngest is a 6 year old that is high on the autism spectrum. They share 50-50 joint custody. Ex-husband isn't a big fan of work, quits or gets fired often, and wants to file for SSI for their disabled child.

    My GF pays child support because she made more money than her ex-husband when they divorced -- even though the kids spend 50% time with each parent and they share joint custody.

    Ex-husband is filing for SSI for the disabled son, but my GF would like the money to go into a trust fund for her son's needs. Dad wants to file and keep the money for himself. My GF doesn't want him to use the SSI for his own needs and feels the amount should be split so she can set aside her portion into a fund.

    She can't stop him from applying. There is no custodial parent the way their divorce decree is written, although the kids are listed at my GF's address for school purposes, if that matters. It seems silly that he could collect child support and solely collect SSI while choosing not to work many hours when she has the children every bit as often as he does.

    Is there a way we can compel a split of the disability payments or get it put into a fund? It should be noted that my GF makes too much to qualify for her son's SSI. She also doesn't have her kids more than 50%, so she never considered applying anyway.

    Hopefully I provided relevant information. Please let me know if any other details would be useful. Thank you for your time and consideration.
  2. Tax Counsel

    Tax Counsel Well-Known Member

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    She would need to petition the court that has jurisdiction over the custody and support orders for an order compelling the disability payments go into a trust for the child. It would have to be first party special needs trust. She'll want to discuss this with a local family law attorney to go over the facts of her situation and get an opinion of how likely it is that court would grant that petition.
    zddoodah likes this.
  3. adjusterjack

    adjusterjack Super Moderator

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    She also should go to court to get that child support order reversed.
  4. Paddywakk

    Paddywakk Member

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    I disagree, Jack. If the parents split custody 50/50, it would not be unusual for the parent earning more to pay support to the parent earning less, IMHO
    army judge likes this.
  5. zddoodah

    zddoodah Well-Known Member

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    Orders can be reversed on appeal. However, the order in question appears to have been entered about five years ago, so the time to appeal has long since passed. Even if that weren't the case, an appeal cannot succeed without some error in law made by the judge, and no error is apparent from the original post. The OP told us that his "GF pays child support because she made more money than her ex-husband when they divorced -- even though the kids spend 50% time with each parent." In the absence of any other relevant information, this supports the conclusion that the child support order was properly made. Following up on what "Paddywakk" wrote, many states base the amount of child support on the time split between the parents and the parents' relative incomes. If the time split is even and one parent makes more than the other, then the higher earning parent should properly pay support to the other.

    Child support orders can be modified, but only if circumstances have changed, and the OP hasn't indicated that either the time split or the parents' relative incomes have changed. In fact, the OP's statement that his GF "doesn't have her kids more than 50%" of the time indicates that any change in that factor has not changed to the GF's benefit.
  6. Zigner

    Zigner Well-Known Member

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    In Oregon, one can also request a review of their child support order after 35 or more months have passed since the order was established or reviewed. See the form https://www.doj.state.or.us/wp-content/uploads/2017/06/csf010142a.pdf (located at Forms - Oregon Department of Justice)

    Of course, as you alluded to, just because the review can be requested, doesn't mean it should be requested. It's quite possible that his GF will end up paying more money.
  7. leslie82

    leslie82 Well-Known Member

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    Even if her ex gets SSI for their child - you can't just blow SSI on whatever you want. You have to spend it on the child who gets it. My child had SSI for several months and I kept every single receipt I used that money for her - and had it in a separate account. It might go to him as the guardian but you can get in trouble if you spend it on anything other than the child's needs.

    "First, you must take care of the beneficiary’s day-today needs for food and shelter. Then, you must use the money for the beneficiary’s medical and dental care that’s not covered by health insurance. You can also pay for the beneficiary’s personal needs, such as clothing and recreation. You must save any money left after you pay for the beneficiary’s needs, preferably in U.S. Savings Bonds or an interest-paying bank account, insured under either federal or state law. If the beneficiary is in a nursing home or institution, use their benefits to pay the fees. In this case, you should set aside a minimum of $30 each month to use for the beneficiary’s personal needs. If the beneficiary is in an institution and gets Medicaid, or is a member of a family on Temporary Assistance for Needy Families (TANF), contact Social Security about using benefits for the family."

    That's from the Social Security website when a child is receiving benefits. I know some people find ways to abuse it and that might be what the dad wants to do - but if he gets SSI for the kid it's not for him to just blow.

    Your girlfriend needs to talk to an attorney asap.

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