Child Support for Disabled Children

New Jersey’s New Child Support Statute Raises Questions Concerning Disabled Children and Governmental Benefits Access

By: Richard H. Weiner

Picture of Richard H. WeinerOn February 1, 2017, New Jersey’s newest child support statute took effect. The statute, which is officially known as the Termination of Obligation to Pay Child Support, broadly underscores when a parent’s right to pay child support terminates.

That said, the statute also brings a host of other changes that raise questions for issues related to disabled children and protecting a child’s access to governmental benefits. Keeping these themes in mind, here is a closer look at what New Jersey’s newest child support statute could mean for New Jersey families.

New Changes for When Child Support Obligations Terminate

The new statute states that a child support obligation terminates when a child turns 19 years of age, but the termination can extend to 23 when certain conditions are met. Custodial parents looking to extend child support until 23 are required to submit documentation and an application to justify the extension of support for additional time beyond the child’s 19th birthday.

This requirement is not a new one, but what is new is that the Termination of Obligation to Pay Child Support statute now marks an end date for child support. In other words, child support will end by a child’s 23rd birthday, absent consent of the parties to the contrary.

This raises a key question as to how this might affect children with special needs or other special circumstances who may still need financial maintenance well beyond their 23rd birthday.

How Does the New Statute Affect Disabled Children Past the Age of 23?

Section (e) of the new child support statute states that the obligation of a parent to pay child support terminates “by operation of law” when a child reaches 23. However, the statute also states that section (e) should not be construed to mean that a child beyond the age of 23 cannot seek a court order requiring other forms of financial maintenance or reimbursement from a parent.

Further, the section also notes that New Jersey courts are not prevented from converting a child support obligation to another form of financial maintenance for a child past the age of 23 if exceptional circumstances are involved. This section explicitly mentions a “mental or physical disability” as examples, only, as to exceptional circumstances that may justify converting child support to another form of financial maintenance for children who reach 23 years of age.

In short, then, it appears that the new statute will free New Jersey Probation Departments from the need to enforce child support obligations for disabled children who reach 23 years of age, while still ensuring there is a mechanism in place for those children and their custodial parent to still receive financial support.

For the time being, the issue of emancipation – which is a standard used to determine whether children are capable of living independently from their parents -was left untouched by the New Jersey statute, meaning the standard set forth by New Jersey family courts is still in effect. As such, a child who is physically disabled or is otherwise unable to support himself can still be a child support obligation, which tracks with current New Jersey statutory law as well.

New Jersey parents are financially obligated to provide child support for an un-emancipated child, which does not terminate based on a child’s age if the child has a “severe mental or physical incapacity” that causes the child to rely on parents for financial help.

In short, then, if parents agree that the child is not emancipated or the court rules a child is not emancipated,some form of financial maintenance will still be required for a disabled child, even if they have reached 23 years of age.

This analysis leads to important questions about actions New Jersey parents should take for a disabled child’s governmental benefits access.

New Jersey Parents May Wish to Create a Trust for a Disabled Child

The previous analysis underscores the fact that alternative paths of financial maintenance exist for disabled children beyond simply providing “child support”. New Jersey parents, for example, can help their disabled child by potentially creating a special needs trust, which is arguably one of the best decisions parents can make. An individual should contact a trust and estates lawyer to discuss this concept.

This assertion is based primarily on how New Jersey law and government benefits programs view “unearned income”. For example, supplemental security income (SSI) is a federal disability program designed to compensate individuals who are either 65 or older, blind or disabled.

If your child meets SSI disability standards, it is essential to understand that child support is counted as unearned income for the purposes of receiving SSI since New Jersey views child support payments to a parent as belonging to “the child”. Therefore, receiving too much “unearned income” in the form of child support could disqualify a disabled child from receiving SSI benefits or reduce their benefits.

Creating a special needs trust will help prevent an unnecessary disqualification that preserves a child’s ability to remain eligible for SSI income. Creating such a trust is legal if drafted correctly, under both federal and New Jersey law, and federal and New Jersey statutes clearly indicate that special needs trust contents cannot be viewed as assets when the government makes an SSI eligibility determination.

This is a great help to a disabled child and their loved ones since qualifying for SSI can also help the individual automatically receive Medicaid.

Talk to a qualified estate lawyer and request a legal consultation to learn more about creating a special needs trust and why doing so may well be in your family’s best interests.

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