This is especially true for parents of a special needs child.
The very best time to start planning for a child with special needs
is at the beginning of the divorce process.
Two Heads Are Better Than One
In best-case scenarios, the divorce attorney collaborates with an experienced special needs planning attorney to map out a plan that will provide maximum resources for the child. Otherwise, parents could unintentionally cause their child to forfeit valuable benefits they are entitled to.
“If I’d Only Known…”
Here are some of the things divorcing parents of a special needs child should consider with the help of experts.
- What will your child’s medical and functional needs be, now and in the future? How will the child’s needs be managed? How much will it cost? A life care specialist may be needed to help address these questions.
- In order to maximize support and the well-being of a disabled child through a divorce, access and eligibility to public benefits are needed.
- How will child support be determined and structured in light of public benefit resource limits?
- Even if an agreement between spouses is reached on how child support will be paid, a Court must still order that child support is paid to a special needs trust. There are very particular rules governing how this must be done.
- Collaborative divorces are popular alternative to a contemptuous divorce, but court orders are still essential tools insuring a child with a disability will be able to maximize use of a special needs trust.
- Special needs trusts have mandated establishment and funding criteria when used to hold child support payments. A divorce attorney is not likely familiar with these requirements.
- There are social security benefits that are available to disabled children. Depending on parents’ income, some children who are disabled may receive benefits under the age of 18. If a disabled child has not yet received benefits when younger, Supplemental Security Income (SSI) will begin at age 18.
- When child support is properly court-ordered to be paid to the trustee of a special needs trust, instead of directly to a disabled child, SSI and Medicaid benefits remain intact.
- Even adult children may be eligible to receive child support; careful consideration must be given to the well being of the child as the child ages.
- Child support payments need to be treated differently between custodial parents and noncustodial parents.
- When a parent starts to draw on his or her social security retirement or social security disability insurance payment, a child who is determined to be disabled prior to age 22, can receive a portion of the parent’s payment without inhibiting the parents benefit. This is an important part of monthly income for both an adult disabled child and her parents.
- Parents have an obligation to support minor children and minor children with disabilities are subject to “deeming rules” – this means that a parent’s income may be deemed a resource to a child and threaten eligibility for public benefits.
- Life Insurance: Typically parents name their children as beneficiaries of life insurance policies. A child with a disability who is named as a direct beneficiary of a life insurance policy may lose eligibility for public benefits, a potentially catastrophic loss. Directing the insurance proceeds to a special needs trust for the benefit of the child is a better plan. Read more…
Be sure to resolve these issues
There are a host of other technical issues that need to be ironed out before the Judgment of Divorce is final, such as:
- Equitable distribution of marital assets and child support
- Examining how custody is evaluated
- Sole custody or joint custody?
- Deeming income rules
- Health insurance and Cobra
- Appropriate residential placement, if needed
There’s a lot at stake, and the challenges will be ongoing, but with the right help, parents can know that they have made the best possible decisions given their situation, and have protected their child and provided for his or her care for the future.
If you are a parent of a child with disabilities and are considering divorce, or if you are already in the process, you should make it a point to see a special needs planning attorney.