EFFECT OF SOCIAL SECURITY BENEFITS ON CHILD SUPPORT

SupportGuidelines.com | Article:

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I. Social Security Benefits in General

Title II of the Social Security Act provides a federal grant of old-age and disability insurance benefits. 42 U.S.C. § 402. Upon satisfying the necessary age requirements, a fully insured Social Security retiree and a spouse or ex-spouse who was married to the retiree for at least 10 years are entitled to Social Security retirement benefits. Further, both fully insured workers who become disabled and their dependents are entitled to Social Security benefits.

Social Security benefits are not a vested right. Congress retains the right to alter, amend, or repeal any provisions of the Social Security Act.42 U.S.C. § 1304. Indeed, in Fleming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367 (1960), the Court refused to analogize Social Security benefits to an accrued property right in the form of an annuity. The Court stated:

Each worker’s benefits, though following from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation. It is apparent that the non-contractual interest of an employee covered by the act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.

Feming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 1371-72 (1960).Accord In re Marriage of Nizenkoff, 65 Cal. App. 3d 136, 135 Cal. Rptr. 189 (1976) (Congress’s retention of Section 1304 f the Social Security Act reaffirms the view that Social Security benefits are not property); see also Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254 (1971) (the expectation of public benefits under the Social Security Act does not confer a contractual right to receive the expected amounts).

Thus, Social Security benefits may not be treated as a property interest because Congress has retained the power to alter, amend, or repeal the benefits. The fact that Social Security benefits are not a vested right plays an important part in the courts’ determination that Social Security benefits are not subject to division on divorce.

Social Security benefits are also not transferable or assignable, and they are not subject to execution, levy, attachment, garnishment, or other legal process. 42 U.S.C. § 407(a). This section applies to benefits received as well as future benefits. Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S. Ct. 590 (1973). The anti-assignment provision, however, does not apply to legal process brought for the enforcement of an individual’s legal obligation to provide child support and spousal support. 42 U.S.C. § 659(a); see, e.g., Mariche v. Mariche, 243 Kan. 547, 758 P.2d 745 (1988). Thus, by the clear terms of the federal statute, Social Security benefits are to be considered funds available for the support of children.

II. Social Security Benefits Received by a Parent

For purposes of child support, Social Security benefits received by a parent constitute income. E.g., In re Marriage of Simon, 856 P.2d 47 (Colo. Ct. App. 1993) (Social Security disability is income);Forbes v. Forbes, 610 N.E.2d 885 (Ind. Ct. App. 1993) (Social Security disability benefits are income); In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1991); In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992); In re Marriage of Callaghan, 19 Kan. App. 2d 335, 869 P.2d 240 (1994); In re Marriage of Durbin, 251 Mont. 51, 823 P.2d 243 (1991); In re Marriage of Stringham, 124 Or. App. 626, 863 P.2d 504 (1993); Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994). Indeed, 42 U.S.C. § 659(a), providing an exception to the anti-alienation provision of 42 U.S.C. § 407 for support, may be read as expressly authorizing state courts to consider Social Security benefits as income for purposes of spousal support and child support.

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Civil Conspiracy in Divorce Actions

Family Civil Rights Movement - 2015Civil Conspiracy and Civil RICO in Divorce Actions – Family Law Reader

I. Introduction

There is little question that fraud in procuring a settlement agreement can justify setting aside the agreement and judgment. E.g., In re Marriage of Modnick, 33 Cal. 3d 897, 191 Cal. Rptr. 629 (1983); Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980); Anderson v. Anderson, 399 N.E.2d 391 (Ind. Ct. App. 1979); Daffin v. Daffin, 567 S.W.2d 672 (Mo. 1978).

Fraud in procuring a settlement can also be the basis for an independent tort action. Hall v. Hall, 455 So. 2d 813 (Ala. 1984); In re Benge, 151 Ariz. 219, 726 P.2d 1088 (Ct. App. 1986); Dale v. Dale, 66 Cal. App. 4th1172, 78 Cal. Rptr. 2d 513 (1998); Den v. Den, 222 A.2d 647 (D.C. 1966); Oehme v. Oehme, 10 Kan. App. 2d 73, 691 P.2d 1325 (1984); Burris v. Burris, 904 S.W.2d 564 (Mo. 1995); Carney v. Wohl, 785 S.W.2d 630 (Mo. Ct. App. 1990); Hess v. Hess, 397 Pa. Super. 395, 580 A.2d 357 (1990). See also Vickery v. Vickery, 1996 WL 255755 (Tex. Ct. App., December 5, 1996) (wife awarded $9 million against husband for fraudulently procuring divorce and marital settlement agreement, and $450,000 against husband’s attorney),affirmed over dissent in light of Schleuter v. Schleuter, 975 S.W.2d 584 (Tex. 1998),Vickery v. Vickery, 999 S.W.2d 342 (Tex. 1999). See generally, Robert G. Spector,Marital Torts: The Current Legal Landscape, 33 Fam. L. Q. 745, 757 (1999); Cary L. Cheifetz, The Future of Matrimonial Torts: The Unmapped Landscape, 15 Fair$hare 4 (August 1995). The courts are especially harsh with spouses that commit fraud who are attorneys. Anderson v. Anderson, 399 N.E.2d 391 (Ind. Ct. App. 1979); Scholler v. Scholler, 10 Ohio St. 2d 98, 462 N.E.2d 158 (1984); Webb v. Webb, 16 Va. App. 486, 431 S.E.2d 55 (1993).

The concealment of marital assets during the divorce proceeding has also given rise to tort actions. Swain v. Swain, 576 N.E.2d 1281 (Ind. Ct. App. 1991); Garrity v. Garrity, 399 Mass. 367, 504 N.E.2d 617 (1987). But seeBeers v. Beers, 724 So. 2d 109 (Fla. 5th DCA 1998); Nederlander v. Nederlander, 205 Mich. App. 123, 517 N.W.2d 768 (1994); Smith v. Smith, 113 N.C. app. 410, 438 S.E.2d 457 (1994); Schleuter v. Schleuter, 975 S.W.2d 584 (Tex. 1998); Gardner v. Gardner, 175 Wis. 2d 420, 499 N.W.2d 266 (Ct. App. 1993).

Spouses have even been successfuly in asserting violations of securities laws. Evans v. Dale, 896 F.2d 975 (5th Cir. 1990). But see Head v. Head, 759 F.2d 1172 (4th Cir. 1985); McHugh v. McHugh, 676 F. Supp. 856 (N.D. Ill. 1988); d’Elia v. d’Elia, 58 Cal. App. 4th 415, 68 Cal. Rptr. 2d 324 (1997).

But what can a spouse do when a third party or parties conspires with a spouse to hide marital assets? Is there a cause of action against the third parties? Increasingly, some spouses have been turning to civil conspiracy and Civil RICO.

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American Family Courts and 1st Amendment violations of free speech

Part II — A Voice for Men

freedom-c421The tyrannical nature of Family Courts and their impact on fathers and children

Guy Mann recently penned his observations on the tyrannical nature of Family Courts and their impact on Fathers and Children.

Here we bring you the second and final part of his exposé.  ~ Via American family courts, the First Amendment, and violations of free speech: Part II — A Voice for MenUSA free-speech zone - 2016

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Non Payment of Child Support Indigent Defense | Turner v. Rogers

Turner v. Rogers and its Importance in Indigent Defensemoney-from-feds-2016

| Criminal Law & Psychology Blog |

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I wanted to take some time out of my schedule to discuss Turner v. Rogers while it’s still recent and I remember my thoughts on the matter.  First, I will provide some basic background on the case.  Then, I will discuss the basic legal and policy arguments of the case.  Finally, I will turn attention to my predictions and the importance of this case for indigent advocacy in general.

I. HISTORY OF THE CASE

What is this Turner v. Rogers case I’m talking about?  The answer, thankfully, is rather straightforward.  This case involves two indigent parents involved in a dispute over child support.  The mother, Ms. Rogers, brought a straightforward court claim against Mr. Turner for child support he owed to their daughter.  So far, nothing out of the ordinary.

The noteworthy aspect of the case is that Mr. Turner is indigent, a formal term for a person who is poor; presumably below the poverty line.  In terms of full disclosure, both Ms. Rogers and Mr. Turner were indigent parents.

The court in this case held Mr. Turner in contempt for failing to pay for his child support obligations.  A proper defense to this failure is an inability to pay based upon lack of necessary income.  If that’s the case, why did the judge hold Mr. Turner in contempt?  There is both a broad and specific answer.  The broad one is that the poverty defense is an affirmative one — one that a defendant must prove in order to avoid being held in contempt.  The specific answer is that Mr. Turner lacked an attorney, who would have certainly asserted this defense.

In these situations, a person can typically be held in either civil or criminal contempt, the specifics of which vary by jurisdiction.  This case occurred in South Carolina, where a person facing civil contempt may be incarcerated as a result.  That’s what occurred with Mr. Turner, who was sentenced to serve jail time for being what most us know in lay terms as being “a deadbeat dad.”

Mr. Turner appealed his case all the way up to the South Carolina Supreme Court on the grounds that he was entitled to have an attorney appointed for him since he could not pay for one on his own.  The South Carolina Supreme Court disagreed with his claim and, as a result, he petitioned the US Supreme Court to hear his case.Family Court vs Criminal Court - 2016

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Lawyers would rather try heinous murder cases rather than one family law case.

Family law is not for the faint of heart, and institute teaches best principles and methods ~ Tulsa WorldAmerica legal system failure 2016

Family law is a tough practice.

Children’s futures are at stake. Homes and any monies involved are being divided. Cases turn ugly in a moment, and attorneys representing their clients must be prepared for these sometimes unexpected mood shifts.

Family Court vs Criminal Court - 2016.pngSome Tulsa attorneys admit they would rather try a number of heinous murder cases rather than one family law case.

Judges have been heard to say they dread the controversial and contested family law cases because no one clearly is the winner and everyone loses when all cards have been played.we-need-a-winner-2015

Even attorneys involved in a family law practice have difficult times because of the twists and turns a case might have. Shane Henry, who practices family law with the Fry and Elder Law Firm, said he consistently lost cases during his first three years in practice and knew he needed additional training.

The question was where to go.

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Captured By A Gender Ideology

W.A.V.E. Women Against VAWA Excess

Title IX and the Office for Civil Rights: Captured by a Gender Ideology

Recently the National Organization for Women held its 50th Anniversary Conference in Washington, D.C. One of the sessions, “Ride the Title IX Wave: Expanding the Network and Protecting LGBTQIA Students,” revealed the extent to which the Title IX law and the Dept. of Education’s Office for Civil Rights have come under the sway of a controversial gender agenda – all in the name of promoting sex “equality.”

The session’s description stated:

“One excellent example of how Title IX compliance can be successfully applied comes from the University of New Mexico where a cross campus collaboration strengthened LGBTQIA inclusion and visibility. A tool kit will be distributed on how to work with university officials and the community to advance LGBTQIA interests, leverage legal liability and build a strong foundation for Title IX compliance.”

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Confused about what “best interests of the child” means?

…so are judges, attorneys, and especially psychologists. So don’t worry, you’re not alone…

“Best Interests of the Child”
– Fact or Lyrical Poetry?

Family Court Professionals Disclose the Truth – Weightier Matter

Don’t worry, you’re not alone.  So are judges, attorneys, and especially psychologists.

AFCC_Tampa_Brochure_2006-3-1At AFCC’s 2006 national conference in Tampa, FL, family court professionals gathered to discuss whether “family” or “parents’” rights were compatible with the “best interests of the child” standard.  But in comparing “rights” to “best interests,” the discussion took an unexpected turn to a more fundamental question:

What does “best interests” really mean?

Does it take a Ph.D. to know the answer?

Do judges know any better than lawyers, psychologists, or parents themselves?

Does anyone really know what “bests interests” means and how to determine it for any child or family?

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