Child Support and Special Needs: 6 Important Questions

Parents of a child with special needs know that they must plan for the child’s care and support far into the future. This is especially so if the child is unlikely ever to be able to earn an income on their own once they are an adult.

In cases of divorce, the issue of child support comes into play. For divorcing couples who have a child with special needs, a range of additional questions will arise. Now and in the future, when the child is no longer a minor, how does child support work? Before you start the separation process, be sure to understand the answers to the following key questions.

1. What Is the Role of Child Support?

Any divorce involving minor children must certainly take their needs into account. Usually, the non-custodial parent must make payments to the parent who has custody of the children. The purpose is to provide the same degree of financial security the children had prior to their parents’ separation.

2. How Long Does Child Support Last for a Child With Special Needs?

In most cases, child support ends when children reach the age of majority and can earn their own living. However, some children will never be able to earn an income of their own as a result of their disability. In these cases, child support obligations can continue into the future, beyond childhood.

Although family law varies from state to state, in most cases courts will recognize the parents’ obligation to support their special needs child even in the case of a divorce. This extends beyond childhood for those who require money for their care and support throughout their lives. The non-custodial parent will therefore supply a portion of this funding per the original divorce settlement.

3. Are There Exceptions to Child Support Once the Person With Special Needs Becomes an Adult?

Yes, depending on when the disability occurred. If the person became disabled as an adult, no child support payment would apply as part of a divorce settlement.

Courts will also look at the financial resources of the child with special needs. If these are sufficient to pay for their care and living expenses into the future, the non-custodial parent may not face support obligations, unless the assets are all held in a special needs trust.

4. How Would a Special Needs Trust Affect Child Support Requirements?

Courts generally don’t take income and assets in a special needs trust into account when determining the amount of child support to award the custodial parent. (Continue reading for more information on special needs trusts.)

5. Will Ongoing Child Support Affect the Child’s Ability to Qualify for Supplemental Security Income (SSI)?

Supplemental Security Income (SSI) provides monthly payments to people with disabilities. Access to SSI depends on a person’s income and resources. So, even a small increase in an SSI recipient's income can cause a reduction or loss of their benefits.

Unfortunately, when the parent of a child who receives SSI must pay child support, this can put the child's SSI benefits at risk. Child support payments count as unearned income and may reduce the child's SSI benefit on a dollar-for-dollar basis. These payments can end up ruining the child’s access to much-needed government benefits. For example, if they lose SSI, they may then also lose crucial Medicaid benefits that come with it.

When parents of a child with special needs are divorcing, they may also have to keep in mind income “deeming” regulations. The Social Security Administration considers a person's household income when granting SSI benefits. If a child relies on SSI, the parent with whom they live after the divorce could have an impact on their benefits. (Read more on this in our article on Income Deeming and Child Custody.)

To protect against these kinds of outcomes, it may make sense to create a special needs trust for the child’s benefit. The court can then order the non-custodial parent to make support payments directly into the special needs trust. This type of trust shelters the income and allows the child to retain their SSI benefits. In many cases, the support payments can then remain in the trust if the child does not immediately have use for them.

6. How Might Estate Planning Figure into This Situation?

In many cases, courts will require that the non-custodial parent provide for the special needs child in their will.

Special Needs Trusts: What Are They?

Trusts are legal documents popular in estate planning. A special needs trust (SNT) is a legal arrangement in which the individual with special needs benefits from the funds in the trust. The SNT works to supplement the support they may receive from a public assistance program such as SSI.

The parents or other family members may fund the trust. But the funds in the trust belong to the SNT, and not to the person with special needs who benefits from it. Therefore, this money doesn't compromise their access to government benefits.

An individual living with a disability may require specific services, equipment, or technologies to live fully and securely. An SNT can assist them in accessing the things they need.

Several types of SNTs exist, and specific rules regarding how the individual can spend the funds apply. Work with an experienced special needs planning attorney to establish an SNT that works for your child's unique needs.

If you are creating an SNT for your child with special needs, you may assume that you should also serve as the trustee. However, trust laws in your state could make taking on this role particularly complicated. (Learn more about the potential alternatives to serving as your child's SNT trustee.)

Consult With a Special Needs Planning Professional

If you are in the beginning stages of separation or divorce, and you have a child with special needs, it is important to plan long into the future. The rules regarding public benefits are complex, while family law can vary by state.

Make a point to understand these key questions fully. Then be sure to seek out a qualified special needs planning attorney near you to navigate the road ahead. They can help you and your divorce attorney arrive at a support award that will be fair to both parties while preserving the public benefits on which your child may rely.

You may also benefit from checking out the following articles:

• Am I Legally Required to Support My Adult Child With Disabilities? Maybe.
• Building an Estate Plan for Adult Children With Disabilities
• What to Do When Your Child Receiving SSI Is Turning 18