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Birmingham Bar Association Bulletin Fall 2018

Domestic Relations G. R. Fernambucq and Joseph P. Callaway DOMESTIC RELATIONS UPDATE: Social Security Retirement Child Support Payments Disability Insurance Benefits Railroad Retirement Child Support & Third-Party Payments Earlier this year, the Supreme Court of Alabama adopted an amendment to Rule 32 of the Alabama Rules of Judicial Administration. The amendment, which became effective on June 1, 2018, is consistent with prior case law concerning whether third-party payments made for the benefit of the child may be credited towards an obligor parent’s child support obligation. According to the Ala. R. J. A. 32(9), “social security retirement, survivor’s, or disability insurance benefits, railroad retirement, or any other third-party payments paid for the benefit of the child based on the support obligor’s earnings record or other eligibility requirement attributable to the support obligor shall be credited against that parent’s support obligation, for so long as that support obligation is being received by the support payee.” The Rule provides that the trial courts must determine the total child support obligation and then subtract the total monthly benefit amount that is attributable to the obligor. When the children’s obligor-based benefit exceeds the total child support amount, then the trial court should not order the obligor to pay any additional support. However, in circumstances, when the children’s obligor-based benefits are less than the obligor’s total support amount, the obligor will be ordered to pay the difference. Importantly, not all payments made by a third party for the benefit of a child may be credited towards an obligor’s child support obligation. The Rule also makes clear that the following third-party payments may not be credited towards an obligor’s child support obligation: (1) any payments that are not based on the obligor’s earning record or other eligibility requirement attributable to the obligor; (2) any payments resulting from the disability of the child; (3) any payment received in excess of the amount of child support owed to the child; (4) any payment received by the child that accrued before the date the obligor was deemed eligible to receive third-party payment; (5) Social Security income benefits paid to the child; and (6) adoption subsidy paid to adoptive parents of a special needs child pursuant to the Alabama Subsidized Adoption Act. Although this recent amendment to Rule 32 merely incorporates the prior case law regarding third-party payments made for the benefit of a child, it will provide an easy reference when issues arise whether the obligor parent is entitled to a credit for third-party payments made for the benefit of a child. The amendment also provides a sound reminder for attorneys and the courts to consider the source of payments made for the benefit of a child when calculating an appropriate child support amount because a miscalculation or misapplication of law regarding a credit to a child support obligation can have a significant impact of the obligor’s disposable monthly income. G G. R. Fernambucq and Joseph P. Callaway , Contributors 10 Birmingham Bar Association


Birmingham Bar Association Bulletin Fall 2018
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