Children With Special Needs

There are many considerations to evaluate in divorce proceedings involving children, and even more so if your child has special needs. Many times, children with special needs receive government benefits, which may be affected by child support payments. Our New Jersey family law lawyers can assist people in the Westfield area and elsewhere in the state who are seeking to resolve their divorces without affecting the government assistance received by their children. At Lindabury, McCormick, Estabrook & Cooper, we are committed to pursuing thoughtful and durable legal solutions.

In many situations, children with special needs and disabilities may qualify for important need-based government assistance programs, including Supplemental Security Income (SSI), Medicaid, the New Jersey Division of Developmental Disabilities (DDD), and others. However, if child support payments are made directly to one parent, as they usually are, that income many be considered in determining the amount of benefits the child receives under means-tested government benefits programs. In some cases, it may even disqualify the child from a particular program. In order to allow children with special needs to maintain their government benefits, one solution is to direct child support payments into a special needs trust instead. This is often beneficial, since payments made into a special needs trust are not considered income for the child.

The purpose of a special needs trust is to enable a child with special needs to use his or her assets as well as any existing governmental benefits or assistance for which the child is eligible or that the child is receiving. In order to qualify as a special needs trust in New Jersey, the trust must be established by a parent or legal guardian of the child, or the court, and the child must be under the age of 65 and disabled. The trust must also be irrevocable, be funded with assets of the child (which may include child support payments), and conform to other legal requirements.

A supplemental benefits trust may also be useful, since it is designed to include lifetime gifts or inheritances, such as life insurance and retirement proceeds, that are made for the child’s benefit by others. Directing these proceeds into a supplemental benefits trust may prevent a special needs child from becoming disqualified from necessary government benefits, while still allowing the child to receive gifts that may provide for his or her supplemental care.

Another aspect to consider when providing for your special needs child after a divorce is his or her special education services. In New Jersey, courts deem a child domiciled in the school district of the parent with residential custody, regardless of whether the child lives with that parent. Thus, in cases in which the parents live in different school districts, the quality of the child’s education services may be affected depending on the district in which the child is educated. An experienced family law attorney may be able to negotiate child custody and parenting arrangements in settlement agreements in order to allow the child to attend the desired school district.

At Lindabury, McCormick, Estabrook & Cooper, our New Jersey divorce attorneys provide comprehensive legal representation on divorce and related issues to individuals in Westfield and throughout New Jersey. With additional offices in Summit and Red Bank, we serve individuals in communities throughout Middlesex, Hudson, Bergen, Somerset, and Passaic Counties. To learn more about your legal options, contact us at (908) 233-6800 or online to arrange a consultation.