13.4.2.4 Alimony, Child Support, and Similar Claims

225 See, e.g., Cameron v. Hughes, 825 P.2d 882 (Alaska 1992) (creditor may levy against otherwise exempt property, for example, workers’ compensation and Social Security benefits, for past-due child support because of compelling public policy of enforcing child support obligations); Hamel v. Hamel, 2009 WL 888648 (Ariz. Ct. App. Apr. 2, 2009) (husband’s share of homestead proceeds could be set off against arrears of family support; ex-spouse is not the kind of creditor the homestead protects against); Ventura Cty. Dep’t of Child Support Servs. v. Brown, 11 Cal. Rptr. 3d 489 (Cal. Ct. App. 2004) (spendthrift trust, exempt as to ordinary creditors, may be reached for delinquent family support); Drachmeister v. Brassart, 93 P.3d 566 (Colo. App. 2004) (personal injury judgment may be reached for child support even though otherwise exempt); Thomas v. Ill. Dep’t of Healthcare & Family Servs., 48 N.E.3d 721 (Ill. App. Ct. 2016) (provision of public aid law giving department a lien on obligor’s assets “notwithstanding any other state or local law to the contrary” overrides all state exemptions); In re Flores Children v. Flores, 1987 WL 19752 (Ohio Ct. App. Nov. 6, 1987) (Railroad Retirement benefits, though sole source of income, are subject to garnishment under federal and state law and regulations when garnishment is to pay delinquent child support); State ex rel. Dep’t of Human Servs., Child Support Enf’t Div. v. Palmer, 212 P.3d 491 (Okla. Civ. App. 2009) (benefits from Energy Employees Occupational Illness Compensation Program, awarded to son whose father was killed by occupational exposure to radiation, could be garnished for child support). See also Russo v. Russo, 474 A.2d 473 (Conn. App. Ct. 1984) (divorce court may order ex-husband to pay certain debts, even if his income comes from exempt Social Security benefits, when he also had other potential sources of income available); State ex rel. Lisby v. Lisby, 890 P.2d 727 (Idaho 1995) (lump-sum workers’ compensation could be garnished for family support, but amount for “future medical care” remained exempt). But see Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, L.L.C., 987 A.2d 48 (Md. 2010) (personal injury settlement exempt even from claims for child support; distinguishing wages and unemployment, which are meant to benefit the family, while personal injury recovery is meant to restore the injured person). See generally §§ 14.3.8 (whether exempt income may be counted in determining amount of family support payments) 14.4 (pensions), 15.2.6 (family support claims and homestead exemption), infra.

226 42 U.S.C. § 659(a).

227 SSDI is a non-means tested benefit program financed from payroll deductions. SSDI is a substitute for earned income and represents money that an employee and their employer have paid for the employee’s benefit into a common trust fund under the Social Security Act. See 42 U.S.C. § 405.

228 See In re Marriage of Truhlar, 935 N.E.2d 1199 (Ill. App. Ct. 2010) (obligation to pay for daughter’s college education, required by divorce decree, is child support for which SSDI benefits may be reached); Mariche v. Mariche, 758 P.2d 745 (Kan. 1988) (Social Security disability benefits can be garnished for child support); State ex rel. Moeller v. White, 216 P.3d 727 (Kan. Ct. App. 2009) (SSDI benefits may be garnished for child support arrearages); Kropf v. Kropf, 538 N.W.2d 496 (Neb. 1995) (Nebraska judgment for alimony arrearages was for support of a person; allowing 55% garnishment of Social Security benefits); Sharlot v. Sharlot, 494 N.Y.S.2d 238 (N.Y. App. Div. 1985); Hobson v. Hobson, 901 P.2d 914 (Or. Ct. App. 1995) (Social Security retirement benefits); Horton v. Horton, 335 S.W.3d 862 (Tex. App. 2011) (Social Security may be garnished for child support arrearages, even after child has reached majority). But cf. State ex rel. Benson v. Jager, 865 N.W.2d 608 (Iowa Ct. App. 2015) (adult children suing for back child support; when principal was paid off and only interest remained, debt was no longer child support for which 50% garnishment was allowed; applying state garnishment limits for ordinary debt).

229 Knickerbocker v. Norman, 938 F.2d 891 (8th Cir. 1991); Shepherd v. Shepherd, 467 N.W.2d 237 (Iowa 1991).

230 42 U.S.C. § 659(a) (stating that United States and District of Columbia are subject to income withholding for support “in like manner and to the same extent as if the United States or the District of Columbia were a private person,” and specifying that income withholding is to be “in accordance with State law enacted pursuant to” 42 U.S.C. § 666(a)(1), which incorporates CCPA limits).

231 Supplemental Security Income (SSI) benefits are means-tested and are available only when a disabled person’s income is insufficient to provide for basic needs. In contrast to SSD payments, SSI benefits are not based on how much one paid into the system but rather how much one needs to maintain a minimum level of subsistence based on federal standards. See Schweiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981).

232 State ex rel. Raybon v. McElrath, 2003 WL 22401276 (Tenn. Ct. App. Oct. 22, 2003) (child support obligation may not be imposed on disabled person whose only source of income is Social Security benefits for disabled adult child of deceased worker; “remuneration for employment” means that of recipient, not deceased parent).

233 42 U.S.C. §§ 407, 659, 1383(d)(1). See Sykes v. Bank of Am., 723 F.3d 399 (2d Cir. 2013) (SSI may not be reached for child support), on remand, 2014 WL 4627907 (S.D.N.Y. Sept. 4, 2014) (debtor stated section 1983 claim against government agency that levied bank account, containing only SSI, for child support); Davis v. Office of Child Support Enf’t, 20 S.W.3d 273 (Ark. 2000) (SSI benefits not considered in determining child support); H.C.P. v. G.A.B., 2008 WL 2898419 (Del. Fam. Ct. Apr. 24, 2008) (SSI may not be considered in setting child support; parent whose only income is SSI may not be held in contempt for nonpayment of arrearage); Dep’t of Pub. Aid ex rel. Lozada v. Rivera, 755 N.E.2d 548 (Ill. App. Ct. 2001) (SSI benefits already paid to recipient exempt from child support order; when only source of income is SSI, order vacated); Fort-Hollstein v. Hollstein, 2011 WL 10123 (N.J. Super. Ct. App. Div. Apr. 9, 2011) (lump-sum retroactive SSI award cannot be reached for child support arrears); Crespo v. Crespo, 928 A.2d 833 (N.J. Super. Ct. App. Div. 2007) (reversing order requiring payment of child support arrearages by obligor whose only source of income was SSI); Green v. Redd, 2006 WL 2237700 (N.J. Super. Ct. App. Div. Aug. 7, 2006) (SSI income may not be considered in setting child support; when SSI is obligor’s only source of income, collection of arrearage must be suspended until he has other income); Tenn. Dep’t of Human Servs. v. Young, 802 S.W.2d 594 (Tenn. 1990) (state court has no authority to garnish SSI benefits for child support). See also Robinson v. Leonard, 2011 WL 2306859 (N.J. Super. Ct. App. Div. May 11, 2011) (suspending payments of child support for obligor whose only income was SSI, but refusing to eliminate arrearage accrued while he was a recipient); Burns v. Edwards, 842 A.2d 186 (N.J. Super. Ct. App. Div. 2004) (child support may not be ordered if obligor’s only source of income is SSI); Moore v. Sharp, 532 N.Y.S.2d 811 (N.Y. App. Div. 1988); Langlois v. Langlois, 441 N.W.2d 286 (Wis. Ct. App. 1989). But cf. Chambliss v. Buckner, 804 F. Supp. 2d (M.D. Ala. 2011) (repeated contempt petitions, brought against child support obligor whose only income was SSI, not other legal process because they made no reference to SSI and did not seek to attach the benefits); Burns v. Copeland, 2011 WL 1217930 (M.D. Ala. Mar. 31, 2011) (dismissing individual-capacity section 1983 action against officials who vigorously attempted to coerce SSI recipient into using benefits to pay child support); Commonwealth Cabinet for Health & Family Servs. v. Ivy, 353 S.W.3d 324 (Ky. 2011) (child support order may be entered and contempt proceeding brought against obligor whose only income is SSI; SSI award not conclusive on issue of earning ability); Commonwealth ex rel. Hale v. Stovall, 2007 WL 1784081 (Ky. Ct. App. June 8, 2007) (obligor whose only income was SSI required to make payment on child support arrearages; ongoing payments suspended, but only because of “bare subsistence” situation—not receipt of benefits); Whitmore v. Kenney, 626 A.2d 1180 (Pa. Super. Ct. 1993) (court can direct mother to make child support payments even though her only income is SSI).

234 See Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987) (state court may hold veteran in contempt for failing to pay child support even though his only source of payment is veterans benefits; one purpose of veterans benefits is support of family); Woods v. Nicholson, 2006 WL 3840220 (Vet. App. Dec. 16, 2006) (continuing garnishment of veterans disability benefits to satisfy Family Court order was mandatory, in absence of evidence that excessive amount garnished, or indebtedness discharged), aff’d, 245 Fed. Appx. 20 (Fed. Cir. 2007); Holmes v. Ala. Dep’t of Human Res., 279 So. 3d 572 (Ala. Civ. App. 2018) (lump-sum payment of veterans disability payments—direct deposited into bank account—may be seized for child support); In re Pope-Clifton, 823 N.E.2d 607 (Ill. App. Ct. 2005) (bank account containing only funds from veterans disability benefits may be garnished for child support, as benefits that have been paid are not protected by Illinois law, and federal law allows seizure for family support). But cf. In re Strong, 8 P.3d 763 (Mont. 2000) (custodial spouse’s attorney fees incurred in seeking child support may not be assessed against veterans disability benefits).

235 5 U.S.C. §§ 8345(j), 8346. See Harmand v. Harmand, 931 So. 2d 18 (Ala. Civ. App. 2005) (federal civil service retirement benefits may be divided at divorce, and Office of Personnel Management may be ordered to pay ex-spouse; here, some of the benefits were separate property because were earned after marriage terminated, but couple had separation agreement, and party may bargain away separate property).

236 42 U.S.C. § 659(a), (h).

237 McNabb v. State ex rel. Rhodes, 890 So. 2d 1038 (Ala. Civ. App. 2003) (lump-sum workers’ compensation may be garnished for child support, up to CCPA limit; here, 50% for obligor supporting other dependent); Cameron v. Hughes, 825 P.2d 882 (Alaska 1992) (exemption of workers’ compensation is intended to protect workers and their families, not to protect workers from their families); Div. of Child Support Enf’t v. Colo. Indus. Claim Appeals Office, 109 P.3d 1042 (Colo. App. 2004) (workers’ compensation lump-sum settlement subject to administrative lien for child support); State ex rel. Lisby v. Lisby, 890 P.2d 727 (Idaho 1995) (lump-sum workers’ compensation can be garnished for child support, but only up to the 55% limit applicable to weekly earnings; sum for “future medical care” is exempt as “benefits payable for medical, surgical, or hospital care”); Ill. Dep’t of Healthcare & Family Servs. ex rel. Black v. Bartholomew, 920 N.E.2d 542 (Ill. App. Ct. 2009) (workers’ dependents are intended beneficiaries of workers’ compensation; lump-sum settlement may be garnished for arrearages as well as current support); Shine v. Iowa Dep’t of Human Servs., 592 N.W.2d 684 (Iowa 1999) (lump sum from workers’ compensation fund can be set off for child support arrearages); In re Marriage of Carr & Parr, 591 N.W.2d 627 (Iowa 1999) (proper to calculate 50% garnishment amount before attorney fees and costs, even though this left injured worker with nothing); Siciliano v. State, 742 N.Y.S.2d 282 (N.Y. App. Div. 2002) (workers’ compensation is income subject to attachment for family support; lump-sum settlement can be taken by income attachment to satisfy ex-wife’s lien for support payments). See also Moyle v. Dir., Office of Workers’ Comp. Programs, 147 F.3d 1116 (9th Cir. 1998) (disability benefits under Longshore and Harbor Workers’ Compensation Act can be garnished for alimony or child support); Hanley v. Indus. Comm’n, 21 P.3d 850 (Ariz. Ct. App. 2001) (when workers’ compensation payments suspended if claimant imprisoned, except when assigned for family support, family court could order state to pay entire amount of prisoner’s benefits for child support); Am. Comp. Ins. Co. v. McBride, 107 P.3d 973 (Colo. App. 2004) (Colorado statute allowing garnishment of workers’ compensation temporary or permanent total disability benefits for court-ordered child support applies to benefits arising from injuries that occurred before statute’s effective date).

238 Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408 (allowing “disposable retirement pay” to be distributed as marital property, but excepting from the definition amounts that have been waived in favor of disability). See In re Marriage of Williamson, 205 P.3d 538 (Colo. App. 2009) (temporary disability retirement benefits, awarded to airman whose chronic illness would prevent him from completing the twenty years’ service required for regular retirement, were not marital property and could not be divided at divorce); In re Marriage of Wojcik, 838 N.E.2d 282 (Ill. App. Ct. 2005) (veterans disability payments may not be considered in allocating marital property at divorce, but should be counted in setting amount of family support). See also Gillis v. Gillis, 15 A.3d 720 (Me. 2011) (veterans disability benefits cannot be divided at divorce, but the amount must be considered in determining ability to pay and setting support amount); Halstead v. Halstead, 596 S.E.2d 353 (N.C. Ct. App. 2004) (military disability pay, unlike military retirement pay, may not be treated—directly or indirectly—as a marital asset in division of property).

239 Howell v. Howell, ___ U.S. ___, 137 S. Ct. 1400, 197 L. Ed. 2d 781 (2017) (where veteran waived a portion of his military retirement pay in order to receive veterans disability benefits, thereby reducing ex-spouse’s one-half share of the retirement pay, federal statute prevents state court from increasing the retirement pay award to ex-spouse as indemnification for this loss). See also Griffin v. Griffin, 872 N.E.2d 653 (Ind. Ct. App. 2007) (veterans disability benefits may not be divided or considered in property division; here, after being ordered to split military retirement with ex-wife, husband waived retirement benefits to receive disability); Brouillette v. Brouillette, 51 So. 3d 898 (La. Ct. App. 2010) (servicemember husband’s post-decree waiver of non-exempt retirement pay in favor of exempt Combat Related Special Pay leaves wife with nothing); Mallard v. Burkart, 95 So. 3d 1264 (Miss. 2012) (husband’s election of disability reduced payments to wife from $570/month to $120; state court powerless to allocate disability payments); Ghrist v. Ghrist, 2007 WL 1372690 (Tex. App. May 11, 2007) (ex-husband waived military retirement benefits to receive veterans disability; anti-alienation clause prevented any consideration of these benefits in property division; wife entitled only to half of remaining retirement benefits); Youngbluth v. Youngbluth, 6 A.3d 677 (Vt. 2010) (when military spouse, post-decree, waives non-exempt retirement pay in favor of exempt disability pay, divorce court may neither divide the disability pay nor alter original order to grant a larger percentage of the remaining retirement pay). Cf. Gross v. Wilson, 424 P.3d 390 (Alaska 2018) (divorce decree requiring husband to pay from veterans disability payments was voidable, not void; husband, who failed to appeal within the statutory one-year period, could not challenge it); In re Marriage of Poland, 264 P.3d 647 (Colo. App. 2011) (portion of retirement benefits that represents temporary disability retired list (TDRL) pay cannot be divided between divorcing spouses, but remainder of benefits can be). But cf. Nelms v. Nelms, 99 So. 3d 1228 (Ala. Civ. App. 2012) (spouse whose income includes veterans disability may be required to pay alimony, even if part or all of it must be paid from the disability benefits); Stone v. Stone, 26 So. 3d 1232 (Ala. Civ. App. 2009) (approving provision in divorce judgment forbidding husband to take any action to reduce wife’s share of military disposable retirement pay, effectively forbidding him to waive non-exempt retirement pay and receive exempt veterans disability); Lesh v. Lesh, 809 S.E.2d 890 (N.C. Ct. App. 2018) (court can treat military disability benefits as income from which veteran can make equitable distribution payments, but cannot treat them as marital property to be divided); In re Marriage of Hayes, 208 P.3d 1046 (Or. Ct. App. 2009) (enforcing settlement agreement by which husband agreed to division of retirement pay, notwithstanding husband’s future right to waive retirement pay in favor of disability).

240 In re Marriage of Casinelli, 229 Cal. Rptr. 3d 801 (Cal. Ct. App. 2018) (court may not compensate wife for ex-husband’s waiver of retirement pay in favor of veterans disability benefits, but may take her resulting loss of a share of the retirement pay into account as one of the changed circumstances that may justify a modification of the spousal support under the ordinary statutory criteria). See also Guerrero v. Guerrero, 362 P.3d 432 (Alaska 2015) (although veterans disability benefits cannot be divided, court is not required to ignore economic consequences; here, refusing to divide disability benefits but reopening issue of property division for a “full equitable division analysis”); In re Marriage of Babin, 437 P.3d 985 (Kan. Ct. App. 2019) (settlement agreement that called for division of disability benefits is preempted and unenforceable, but family court may reconsider its order as to spousal maintenance). But see Youngbluth v. Youngbluth, 6 A.3d 677 (Vt. 2010) (where military spouse, post-decree, waives non-exempt retirement pay in favor of exempt disability pay, divorce court may neither divide the disability pay nor alter original order to grant a larger percentage of the remaining retirement pay).

241 Brown v. Brown, 260 So. 3d 851 (Ala. Civ. App. 2018) (temporary disability retired list pay is not marital property and cannot be divided at divorce; settlement agreement that required husband to indemnify wife if military retirement benefits were reduced for inter alia disability pay was preempted and unenforceable); In re Marriage of Babin, 437 P.3d 985 (Kan. Ct. App. 2019) (settlement agreement that called for division of disability benefits was preempted and unenforceable, but family court may reconsider its order as to spousal maintenance); Mattson v. Mattson, 903 N.W.2d 233 (Minn. Ct. App. 2017) (divorce decree incorporating separation agreement is preempted; benefits may not be divided even if spouses agree to do so); Vlach v. Vlach, 556 S.W.3d 219 (Tenn. Ct. App. 2017) (provision of marital settlement agreement requiring indemnification if husband waived retirement in favor of disability retirement is preempted and unenforceable). But cf. Moore v. Moore, 484 S.W.3d 386 (Mo. Ct. App. 2016) (although veterans disability benefits may not be treated as marital property, couple may mutually agree to division in separation agreement incorporated into divorce decree; case was decided before Supreme Court’s decision).