Family Law Matters with Special Needs Children

mother and special needs child playing with toys

Parenting and divorce always involves a variety of issues that must be given due consideration.  However, when there is a child with special needs to plan for, as well, issues related to child custody, visitation, and support can be substantially more difficult to resolve. Parents of children with special needs have different concerns and responsibilities when it comes to daily living expenses and the extended need for child support.  Routine financial planning for the future can become a daunting challenge when dealing with divorce and post-divorce issues along with a child with special needs.

Generally speaking, in New Jersey, the Court Rules provide that the Child Support Guidelines are to be applied when an application to establish or modify child support is considered by the court. Child support is based upon the parents’ combined weekly gross income. The formula in the guidelines considers:

  • The number of overnights provided to each parent;
  • Any health insurance premiums paid by each parent;
  • The cost of work-related child care paid by each parent;
  • Any state or government benefit provided to the child such as Social Security benefits;
  • Other child support paid;
  • If there are additional children, and/or
  • If any alimony is either paid or received.

Child support payments continue until a child is emancipated. In New Jersey, reaching the age of eighteen provides the court with prima facie (Latin for “at first sight”) or presumptive proof of emancipation. However, this presumption can be overcome by proof that that the adult child has not yet moved beyond the “sphere of influence” and responsibility exercised by parents to achieve independent status. Children with disabilities may never be able to overcome the “sphere of influence” to reach emancipation. This means that for parents of children with special needs, child support may never stop. It could also mean that additional child support may be required based on that child’s extraordinary needs. Child support for children or adult children with special needs is determined on a case by base investigation and dependent on the specific circumstances related to a particular family.

As a parent of a child with special needs, it is essential to understand how child support may affect a child’s eligibility for Social Security and Supplemental Security Income benefits. Parents, both during divorce and after divorce, must consider whether they should create a Special Needs Trust when determining the amount each parent is obligated to pay.

When drafting a divorce settlement agreement or a post-divorce settlement agreement, parents of children with special needs may consider including detailed language that would direct child support payments into a Special Needs Trust. Such language could preserve the special needs child’s eligibility for government benefits. Child support paid through a Special Needs Trust may also prevent reduction of government benefits due to income received by the child.

In sum, planning ahead with the help of an attorney well versed and familiar with long term care of special needs children is essential when dealing with divorce and post-divorce custody and support issues. For more information regarding planning for special needs children while going through divorce and beyond, contact the law firm of Lyons & Associates, P.C.  At the law firm of Lyons & Associates, P.C., we represent clients throughout New Jersey.  We place a premium on personalized service and attention. For a private consultation, contact us online or call our office at 908-575-9777.