You asked whether a father, who had been acting as a representative payee for his
children's monthly Title II benefits payable under his Social Security account, could
use the children's benefits to satisfy his court-ordered child support obligation.
ANSWER
For the reasons stated below, we believe that a father acting as the representative
payee may not use his children's Social Security Title II benefits to satisfy his
court-ordered child support obligation.
BACKGROUND
John F~, the number holder (NH), filed an application for disability benefits on September
15, 2002, and was found entitled to benefits beginning August 2002. NH has two minor
children who were found entitled to receive benefits under his account number. Approximately
two years ago, NH's wife, the children's mother, moved out of the family home taking
the two children with her. According to the information you provided, NH continued
to receive the children's benefits as the representative payee for his two children
after his estranged wife and children left the household. Recently, NH's wife filed
for divorce and claimed that NH was not providing support for his children. This claim
apparently included an allegation that NH, as the children's representative payee,
did not use the Social Security children's benefits on the children's behalf during
the two years he and his wife were estranged. It is our understanding that Social
Security's Birmingham, Alabama Field Office (SSA) sent NH an accounting form, which
he has not yet completed and returned.
The Alabama Circuit Court, hearing the divorce action, issued a pendente lite relief
order specifying the amounts and type of support NH is required to provide to his
children. SSA has not received a copy of that order. A search of SSA's computer system
shows that the children's mother is currently listed as the representative payee,
but the system does not show when this change took place. NH's attorney in the divorce
matter contacted SSA on August 3, 2007, claiming NH has been in compliance with the
Court's pendente lite support order and asking, "What information do[es SSA] need
from us to counter the claims of Mrs. F~?"
DISCUSSION
A person who meets the criteria outlined in section 202(d)(1) of the Social Security
Act (Act) is entitled to receive child's benefits on the earnings record of an insured
individual, and those benefits are considered the property of the qualifying person
or "child," and not of the insured individual. See Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2007) (entitlement lies
with the qualifying individual). When a representative payee is appointed to administer
the child's benefits, the representative payee has a duty to use the money received
only for the child's use and benefit, in the child's best interests. See Act § 205(j)(1)(A), 42 U.S.C. § 405(j)(1)(A); 20 C.F.R. §§ 404.2035(a), 404.2040
(2007). This duty is inherent to the appointment as a representative payee and exists
independently of any court-ordered obligation the representative payee may be under.
See Act § 205(j)(1)(A); 20 C.F.R. §§ 404.2035, 404.2040. The representative payee also
has a duty to keep any benefits received on the child's behalf separate from the representative
payee's own funds and to treat any interest earned on the benefits as the child's
property, not the representative payee's property. See 20 C.F.R. § 404.2035(b), (c). Thus, the Act and implementing regulations governing
representative payees do not allow a representative payee to dispense a beneficiary's
benefits in any manner other than on behalf of the beneficiary and in the beneficiary's
best interest. See Act § 205(j)(1)(A); 20 C.F.R. § 404.2035(a); see also 20 C.F.R. § 404.2050 (2007) (stating a new representative payee will be selected
when the representative payee has not used benefit payments in accordance with the
regulations) . Using the child's benefits to satisfy the representative payee's debts
would not be a proper use of the child's benefits. See Act § 205(j)(1)(A)(iv)(II); see also 20 C.F.R. § 404.2050.
In the present case, NH may not use the children's benefits to satisfy his child support
obligation because those funds are not his property. The benefits belong to the children
and may not be used by NH for his personal use, in this case to satisfy his personal
legal obligation. See Act § 205(j)(1)(A); 20 C.F.R. § 404.2035(a); see also 20 C.F.R. § 404.2050. Because it appears that NH is no longer the representative
payee for the children, the question of his control of ongoing benefit payments is
not at issue. However, any children's benefits that NH received and/or accumulated
during the two year period leading up to the divorce action, during which time his
wife and children maintained a separate household, likewise may not be used to satisfy
NH's obligation to pay child support. Any such accumulated funds do not belong to
NH. Rather, they are the property of the children and should have been transferred
to the children's new representative payee. See 20 C.F.R § 404.350; see also 20 C.F.R. § 404.2060 ("A representative payee who has conserved or invested benefit
payments shall transfer these funds, and the interest earned from the invested funds,
to either a successor payee or to us, as we will specify."). As that money already
belongs to the children, NH is not at liberty to use the money to satisfy his obligation
to pay support to the children. Any such arrangement is akin to a conversion of the
children's property to pay a debt owed to the children. See v. Abercrombie, 816 So. 2d 1051, 1056 (Ala. Civ. App. 2001) (recognizing the problem of a child
support arrangement that "would, essentially, require the child to repay the custodial
parent's debt").
NH apparently intends to argue to the Circuit Court that in acting as the representative
payee for the children's Social Security benefits, he was, in fact, supporting his
children, thus satisfying the Court's order. However, as the representative payee
for the children, NH's duty was to use the children's benefits, their own property,
on their behalf for their use and benefit. See 20 C.F.R. §§ 404.2035(a), 404.2040. The Circuit Court's order, requiring NH to pay
child support, did not alter or affect NH's pre-existing responsibilities as the children's
representative payee. Rather, the Court's order created a different obligation, namely
for NH to provide support to his children. However, the duties of a representative
payee are distinct and separate from the duties of a parent ordered to pay child support.
As a representative payee, NH was required to administer the benefits belonging to
his children for their benefit. See 20 C.F.R. §§ 404.2035(a), 404.2040. As a father ordered to pay child support, NH
is required to pay money to support his children. These obligations are distinctly
different and the satisfaction of one does not satisfy the other.
NH's position raises other concerns. Under Alabama law a child has a fundamental right
to support from his or her parents that the parents themselves cannot waive. See State ex rel. Shellhouse v. Bentley, 666 So. 2d 517 (Ala. Civ. App. 1995). "All minor children have a fundamental right
to parental support and that right is deemed to be a continuing right until the age
of majority." Ex parte State ex rel. Summerlin, 634 So. 2d 539, 541 (Ala. 1993); see also Bank Independent v. Coats, 591 So. 2d 56, 60 (Ala. 1991) ("[T]he public policy of this state [provides] that
parents cannot abrogate their responsibilities to their minor children by mutual agreement
between themselves so as to deprive their minor children of the support to which they
are legally entitled."). Allowing NH to avoid his obligation to pay child support
by using the children's own property to satisfy the Court's order would have the effect
of "depriv[ing] the[] minor children of the support to which they are legally entitled."
Coats, 591 So. 2d at 60.
Of course, the Circuit Court has the power to adjust or off-set NH's child support
obligation as it sees fit, and NH is free to petition the Court to that effect. See Binns v. Maddox, 327 So. 2d 726, 728 (Ala. Civ. App. 1976) (the purpose of a child support order
has been accomplished where Social Security disability benefits, which constitute
a substitute for the income of the disabled parent, are paid to a child because of
his parent's disability); Self v. Self, 682 So. 2d 732, 733-34 (Ala. Civ. App. 1996) (a credit was given for disability
benefits paid because of the support-paying parent's disability). Whether the Court
chooses to reduce NH's child support obligation or consider it satisfied based on
the children's assets, including their Social Security benefits, is a matter for the
Court to decide. However, any such determination by the Circuit Court necessarily
relates to NH's obligation as a parent to pay child support, and not to any duties
or responsibilities he had as the representative payee for the children's Social Security
benefits. See Act § 205(j)(1)(A); 20 C.F.R. §§ 404.2035, 404.2040; see also 20 C.F.R. § 404.2050. Moreover, the Act establishes that benefits paid or payable
shall not be subject to legal process. See Act § 207(a), 42 U.S.C. § 407(a); Philpott v. Essex County Welfare Bd., 409 U.S. 413 (1973). Thus, although the Court may be able to alter NH's child support
obligation, the Court has no authority over the Title II benefits the children received
or will receive in the future.
The Court's determinations in the divorce action will not alter the fact that the
children's benefits, even though they are payable on NH's account, are the children's
property, not NH's property, and at all times should have been used by the representative
payee for the children's benefit and on the children's behalf. See 20 C.F.R. §§ 404.350, 404.2035, 404.2040. It is our understanding that to this end,
SSA has asked for an accounting from NH regarding the disposition of the children's
benefits paid during the two year period when the children were living in a different
household with their mother. See 20 C.F.R. §§ 404.2035(e), 404.2065 (2007). We presume appropriate measures will be
taken should SSA determine NH misused the children's benefits in this case. See 20 C.F.R. § 404.2041 (2007).
CONCLUSION
For the foregoing reasons, we conclude that NH, acting as the representative payee
for his children, may not use his children's Social Security Title II benefits to
satisfy his court-ordered child support obligation.
Sincerely
Mary A. S~
Regional Chief Counsel
By: _______________
Richard V. B~
Assistant Regional Counsel