The Five Percent Rule

Five Percent Rule

The Five Percent Rule

Lak v. Lak involved a fairly rare situation. The issue was whether or not a five percent limitation applied to the garnishment of Social Security Disability Insurance (SSDI) benefits. The five percent rule limits the amount of either spousal support or child support that can be garnished from SSDI benefits.

The parties in this case were divorced in 2014. They entered into an agreement for both child support and spousal support. The father lost his job and quickly owed more than $160,000 in back support. There were several motions for modification of support as well as for payment for arrearages.

The family law judge held that the Department of Child Support Services could withdraw more than five percent from the father’s SSDI. The father appealed the order stating that he qualified for the five percent limitation.

The Fourth District Appellate Court upheld the order. The Appellate Court detailed the difference between federal disability programs, and it also explained the five percent limitation. The Court agreed with the family law judge and held that the five percent limitation did not apply in this situation, because the payor (father) failed to establish the following criteria:

  • he is disabled

  • he meets the SSI resource test,

  • he is receiving SSI and if not, he would be eligible to receive SSI as long as he is not disqualified based upon excessive income, and

  • he must supply proof of eligiblity for SSI.

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as SSDI and child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.

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