The Supreme Court of New Jersey recently ruled that special needs trusts for the benefit of adult disabled child(ren) instead of a child support obligation should not be rejected if it was created for the children’s best interests.

Although the decision in J.B. v.W.B. affirmed the Lower Court’s decision that a proposed special needs trust for a 25 year-old autistic son living in a group home lacked sufficient detail as to how it was in the child’s best interests, the Court provided much needed clarification as to what information is required.

 First and foremost a Marital Settlement Agreement that does not provide for a special needs trust instead of a child support obligation is not prohibitive.  A party can seek to modify their Marital Settlement Agreement to substitute a special needs trust in lieu of child support by filing a Motion in the Family Part outlining a detailed plan regarding how the trust will be in the child’s best interest.  The Motion must clearly address the "current physical, psychological, educational, vocational, and recreational needs of the child." The Motion must also address any and all costs associated with supporting the child’s needs.  If the plan includes government benefits, the plan must include eligibility rules for those benefits, a timeline to be approved for the benefits, and an anticipated timeline on how long it will take to receive the benefits after approval. 

Also, the plan must propose a way to meet the child’s current expenses without affecting their eligibility for benefits.  Finally the plan must outline the terms and conditions for disbursement of the corpus of the trust and designate a trustee. 
If you currently have a child support obligation and would like to create a special needs trust in lieu of child support, it is imperative that you contact an experienced family law attorney.