Ask a Lawyer Episode 1 – Divorce and Special Needs Issues

The following is a transcript of an interview with Attorney Christine Matus on divorce and special needs children.

Chris, tell us about divorce and special needs issues.

Christine: Since we specialize in estate planning for special needs families, there has been quite a number of family lawyers who have reached out to us for help. They have clients going through divorces, and it’s difficult. Add in children with special needs, and it’s even more difficult. My mission has always been to educate about the potential for these types of situations.

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One of the most important things we tell people is, be aware of government benefits. For children who are disabled and considered special needs, government benefits such as Medicaid, or SSI, are considered means tested. In other words, they’re only eligible to receive these benefits base on assets, and typically that’s only $2,000. If the children are going to receive child support, then it’s an asset and would eliminate them from receiving the benefits. It’s crucial that their divorce attorney include language in the separation agreement, or divorce decree, for a special needs trust. Then the child receives child support and those all-important benefits.

Also, we want to look at the routine and abilities of the child. So, for instance, do you need to be available during the day to be with your child? What hours of the day, or weekend, do you need to be available? That needs to be in the agreement. On rare occasions, one parent says they can’t work because they need to be with their child. To solve that challenge, we’ve recommended having an expert evaluate the child as to abilities. That helped determine the amount of time a parent should spend with their child.

What’s more, let your divorce attorney know special considerations when calculating child support. There’s a formula for child support, but with special needs children, there are special considerations. Also, when they become adults, they may still need child support. With my child, Juliana, we have different therapies and equipment as well as special types of shoes and toys. If you’re using the basic formula to calculate child support, it may not be fair. A child may never be emancipated, and so child support could remain for life.

Then we have to consider life insurance. When someone is obligated to pay child support, they should also be required to obtain life insurance which guarantees child support in case that person dies. However, the beneficiary is not the child, but rather it’s the trust. If there’s no trust, then reach out to a special needs planner to create it. That’s how we help.

The next thing is education. Sometimes the custody order will say one parent or the other have specific roles. However, if it doesn’t, then it’s assumed both parents need to be involved in those types of decisions. If you’re going through a divorce, spell it out as to who makes those decisions. Do we need consent from both parents for specific therapies or classes? That needs to be detailed; otherwise you end up back in court.

Moreover, I’m gratified my firm has been able to help families having trouble with their school system. If a child is not receiving specific therapies, or certain type of classes, then we’re happy to help parents navigate through the educational system.

So that’s some things to think about if you have a special needs child and are going through a divorce. Let your divorce attorney know about your situation. But-the-way, we’re very active with the New Jersey Family Law Bar, and we’re one of the sponsors for the New Jersey Law Retreat. We help educate family law practitioners and the judges on specific issues they may not be aware of.

Call Special Needs Estate Planning Attorney Christine Matus at (732) 281-0060
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