Divorcing parents are responsible to support their children until emancipation. But what if you have a disabled child who is never likely to be emancipated? Should a Special Needs Trust be created?
It is important to note that disabled children may be entitled to certain governmental benefits, which may be compromised if the child is eligible for child support from his or her parents.
In a recent New Jersey Supreme Court case, J.B. v. W.B., the divorced father of an autistic child sought to modify the Property Settlement Agreement reached between him and his Wife years earlier. According to the Agreement, the father had an obligation to pay child support for this child, and it was acknowledged that the child may never be emancipated. The Agreement deferred some financial issues relating to their son for a later date, and the father filed a motion to determine the allocation of financial responsibility for their son’s post-secondary education and to establish a special needs trust.
The Lower Court denied the father’s motion stating that the parties’ agreement provided that he pay support and because his proposed trust plan lacked sufficient detail to allow the Court to make a decision about whether the trust would be in the best interests of the child. The Appellate Division agreed with the Trial Court.
The Supreme Court of New Jersey addressed the case since it was its first opportunity to consider the role of a special needs trust for the benefit of an adult, unemancipated disabled child.
The Supreme Court felt that the parties’ Agreement could be modified since maturation of a child and his or her changing needs may satisfy the threshold requirement for modification due to a change in circumstances. In this particular case, the father didn’t have to meet this requirement of change in circumstances since their Agreement deferred future financial arrangements for their child to a later date. The best interests of the child should have been taken into consideration.
In this particular case, the Supreme Court agreed that the father did not provide enough information with regard to a special needs trust; however, the Court did set forth guidelines for future consideration regarding such trusts. At a minimum, the Court must have a complete understanding of the following:
- The current physical, psychological, educational, vocational and recreational needs of the child.
- The cost to support those needs.
- The resources available to fund those needs.
- If the plan relies on government benefits, the eligibility rules, the time it will take to gain eligibility and how long it will take to access benefits once eligibility is established.
- The means of defraying costs without compromising the child’s benefits’ eligibility.
- The terms and conditions for disbursement from the trust and the designation of a trustee.
This is a complicated area of law, and if you have a special needs child, you should seek the appropriate legal advice to assure that your disabled child will benefit from all available government aid in addition to your financial support.