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Divorce and Special Needs: 4 Things to Consider

Last updated on: October 25, 2021

When parents have special needs children, it affects virtually every aspect of their life. That includes situations where a couple divorces. When the parents separate, they have a lot of things to consider regarding their child, especially as it relates to the divorce decree and related estate planning matters. Below are just a few things that you should keep in mind if you are a parent going through a divorce.

  1. Government Benefits

Children who have special needs often depend on government benefits like Social Security and Medicaid. These benefits are means tested, however. In other words, if a child receives child support, that could inhibit them from getting those benefits. Assets can generally only be up to $2,000 for children to still qualify for SSI and Medicaid.

To avoid this problem, the divorce attorney can usually put in language in the divorce decree that sets up a special needs trust for the child. That way, the funds will go to the trust instead of directly to the child. Most concerns about having too much income for purposes of government benefits can be avoided with a special needs trust.

  1. Routine and the Child’s Abilities

Children who have special needs often need more care and attention than the average child. You need to think through who will be able to care for the child, regardless of his or her location. For example, if you are gone during the day while you have physical custody, who will watch the child? These considerations are even more important for special needs children who may have medical needs or require skilled care.

All of the care instructions should be in the divorce agreement. There are situations where a parent may assert that they cannot work because they need to be available to care for their child. Under those circumstances, it may be worthwhile to have an expert evaluate the child’s abilities. That expert’s opinion will be helpful to argue for or against having to remove yourself from the workforce to care for your child.

  1. Special Considerations for Calculating Child Support

Child support in New Jersey is based on a fairly rigid formula that considers the parents’ relative income, number of children, and other factors. However, when you have a special needs child, the child support formula may be adjusted to account for extra expenses for the child. These may include things like health insurance, medical expenses, purchase of medical equipment, or having to use skilled care for your child’s supervision. Special needs children may also need support long after they reach the age of 18, which is when child support will typically cease.

  1. Life Insurance

When a special needs child depends on child support, he or she also depends on the other parent’s support even after they pass. You should consider requesting that the parent who pays child support also maintain life insurance as well.

However, you should be sure that the beneficiary is the child’s special needs trust, not the child themselves. Even life insurance benefits can undermine government benefits if it goes directly to the child.

Divorce with a special needs child can be tricky. Working with an experienced divorce attorney is important, but having a lawyer who knows the ins and outs of the factors that affect parents of special needs children can be just as critical. Call The Matus Law Group to learn more: (732) 281-0060.

Christine Matus

Christine Matus
Christine Matus

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