Some parents of special needs children receive Supplemental Security Income (SSI) benefits to help towards the care of their son or daughter. A special needs child may qualify as disabled and receive benefits if they have a physical or mental impairment which causes severe functional limitations that could last for more than 12 months or could result in death. There are a broad spectrum of qualifying children, including but not limited to youths diagnosed with severe developmental delays or Leukemia. Although these SSI benefits may appear to be a godsend at first, they could have a negative impact on child support.
To calculate child support in Virginia, the court must consider the gross income of both parties, the cost of the health insurance premium for the child, work-related childcare costs and the custodial schedule. These figures are inputted into the Virginia Child Support Guidelines. Pursuant to Virginia Code § 20-108.2, the support figures calculated by the guidelines are presumptively correct. However, a parent can rebut that presumption and seek a downward deviation (an award of support that is less than the guideline amount) by asking the court to consider the various factors outlined in § 20-108.1, such as the cost of visitation travel and direct payments of maintaining life insurance or educational expenses.
One possible ground for a downward deviation in child support might be the receipt of SSI benefits for the child. The payor of support can request that the court consider the receipt of SSI benefits as an independent financial resource of the child. This parent can argue that the child support recipient is unjustly benefiting from both the receipt of large amounts of SSI benefits and a large award of child support, and the court should therefore reduce the court-ordered child support payments.
However, the payee of support can argue to the court that receipt of these funds in addition to child support is not the windfall the payor makes it out to be. In fact, two-thirds of the child support received is considered income to the child and will reduce the SSI benefits received. When a child turns 18, the amount of child support received reduces the SSI benefits dollar for dollar. As of January 1, 2019, the maximum benefit allowed to an individual was $771 a month. So, for example, if child support is $700 a month, the SSI benefit would be reduced to $71 upon the child reaching age 18.
To avoid the potential reduction of child support based on the receipt of SSI benefits for the child, the parent receiving child support can request, pursuant to Virginia Code § 16.1-278.15 and § 20-124.2, that the child support be paid to a first party trust. As a result, the child support is not attributable as income to the child and the SSI benefits are protected from decreasing or disappearing altogether. However, if a parent is successful in protecting the child’s benefits through a first party trust, the payor could still request a downward deviation of child support on the basis of the child’s independent financial resources.
To determine how SSI benefits may impact your particular case, be sure to speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Manassas, Ashburn, Arlington and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.
 Understanding Supplemental Security Income SSI for Children – 2019 Edition, Social Security Administration (Sept. 20, 2019).
 Kelly A. Thompson, Special Needs Planning and Divorce CLE 4 (2017).