Child Support and Children with Special Needs

Posted on May 21, 2010 by Mary W. Browning

One issue often overlooked by divorce attorneys as well as their clients is the payment of child support when the couple has a child with special needs. Child support, although paid directly to a spouse, is considered to be an asset of the child for purposes of determining eligibility for means-tested governmental programs. To avoid disqualifying the child from governmental benefits, the divorce agreement should direct child support payments to be made directly to a first party special needs trust, instead of directly to the custodial spouse. The child with special needs will be the sole beneficiary of the trust and the custodial parent will be the trustee. In this way, the child support will be used for the child without disqualifying the child from benefits he or she may receive.

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Ending Your Marriage Does Not Mean Ending Your Commitment to Your Special Needs Child

Posted on December 15, 2009 by Lori I. Wolf

The end of a marriage does not end your commitment to your child with special needs. First, it is important for any child support dedicated to a child with special needs to be allocated under the separation agreement to a special needs trust so that these assets do not affect the child’s ability to receive government assistance. It is important in connection with a divorce that each spouse consider the impact of the separation on his or her individual special needs planning. Each parent must have appropriate special needs planning in order to protect the child’s eligibility for assistance. Each spouse can have their own special needs trust with different trustees and different beneficiaries. Despite this, it is important that where possible, the parents of the child with special needs coordinate the funding of the trusts to ensure that adequate resources will be available to the child, and to ensure that the both spouses have incorporated the planning necessary to preserve the child’s eligibility for assistance.

If you incorporate special needs planning in your estate plan, but your ex-spouse has not, the planning you have done will not be enough to protect your child’s eligibility for assistance at the time that your ex-spouse dies.

In obtaining the divorce, one issue which is not often contemplated is who is responsible for becoming the guardian of the child upon the child’s attainment of age 18 (one parent or both together) and who has responsibility for educational decisions with respect to a child (this could be both parents or one). These issues should be addressed in a divorce agreement to minimize disputes following the divorce.
 

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