Child Support & Related Matters – Special Needs Children
Children with special needs and disability may qualify for important need-based government assistance programs, including Supplemental Security Income (SSI), Medicaid, and others. Child support on behalf of the special needs child(ren) may be considered in determining the amount of benefits the child receives under means-tested government benefits programs. In some cases, it may operate to disqualify the child from a particular program.
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. Unlike child support, payments made into a special needs trust are not considered income for the child. Creating a special needs trust will help prevent an unnecessary disqualification that preserves a child’s ability to remain eligible for government benefits they would otherwise be entitled to if their parents had not divorced.
In calculating child support for children with special needs, the Child Support Guidelines permit the addition of predictable and recurring expenses to the child support award for children that may not be incurred by average or intact families, such as special needs of disabled children.
A child with special needs may never become self-sufficient and this can toll emancipation and thus, result in the continuation of child support indefinitely. This can become problematic in cases with child support being paid through the New Jersey Probation Department. Under the recently modified statute, in cases where child support continues beyond the age of 19 and made payable through the New Jersey Probation Department, child support shall terminate upon operation of law when a child reaches 23 years of age under N.J.S.A. 2A:17-56.67, regardless of whether or not settlement agreements or support Orders provide for a later termination date or event.
However, the statute specifically makes clear that it shall not be construed to (1) prevent a child who is beyond 23 years of age from seeking a Court Order requiring the payment of other forms of financial maintenance or reimbursement from a parent or (2) prevent the Court, upon application of a parent or child, from converting, due to exceptional circumstances including, but not limited to, a mental or physical disability, a child support obligation to another form of financial maintenance for a child who has reached the age of 23.
Notwithstanding an Order for financial maintenance, the probation department will no longer oversee the account as its services expire immediately upon the child 23rd birthday, with the exception of the collection of arrears until they are paid in full. Any enforcement proceedings beyond the special need child’s 23rd birthday would have to be brought to the Court by the parent or Guardian on behalf of the child.
The attorneys at Donahue, Hagan, Klein & Weisberg can help navigate you through the complex issues concerning child support for children with special needs.
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