The new child support statute entitled
Termination of Obligation to Pay Child Support,
An important question to be raised in conjunction with this statute is how it will impact children with special needs. Section (e) of the new statute provides that the court is not prevented "from converting, due to exceptional circumstances, including, but not limited to, a mental or physical disability, a child support obligation to another form of financial maintenance for a child who has reached the age of 23." As such, it would seem that the legislature simply seeks to relieve the State's Probation Departments from the obligation to monitor and enforce an ongoing child support obligation of a parent to a child with special needs. By rebranding child support as "financial maintenance" parties will be left to their own devices with regard to setting up ongoing payment and collection of support for a child with special needs.
Of course, the issue of emancipation will remain under the purview of the
family courts as supported by the statute's legislative history, which
states "nothing in the bill would affect the authority of the court
to make judicial determinations regarding the legal emancipation of the
child." As such, courts should continue to utilize the standard set forth in
Filippone v. Lee, 304 N.J. Super.301, 308 (App. Div. 1997), wherein the essential emancipation
inquiry is whether the "child has moved 'beyond the sphere of
influence and responsibility exercised by a parent and obtains an independent
status of his or her own.'" The obligation of a parent to provide
child support "might continue indefinitely if the child were crippled
or unable to support himself."
Indeed, the new child support statute must be reconciled with the language
set forth in
So, if the parties agree that their child remains unemancipated or if the
court adjudicates as such, an important question arises involving how
such "financial maintenance" should be paid. So as to maximize
the child's access to governmental benefits, parties should consider
depositing money for that child into a trust. In fact, parties should
consider such a trust as soon as applicable.
Supplemental security income (SSI), established in 42 U.S.C.A. §§1381-1385,
is a means-tested federal disability program administered by the Social
Security Administration. The amounts received by a child "are not
to be credited against the non-custodial parent's child support obligation[.]"
In order to qualify for SSI, the applicant must be: (1) aged 65 or older; (2) blind; or (3) disabled.
An adult (over 18) is considered disabled for SSI purposes if they have a "medically determinable physical or mental impairment (including an emotional or learning problem)" which: (1) results in an inability to perform substantial gainful activity (SGA); and (2) can be expected to result in death or has lasted or is expected to last for a continuous period of at least 12 months. The disability determination for a child is identical, except that the impairment must result in marked and severe functional limitations rather than SGA analysis. SGA is demonstrated where an applicant earns in excess of $1,170 per month (for 2017).
In calculating the amount of SSI the applicant is to receive, the value of the items owned must be less than $2,000 for a single person not including the value of the person's home and typically not including the value of the person's automobile. The current federal benefit rate (FBR) is $735 per person; however, this amount will be reduced by the person's "countable income," which is the amount left over after eliminating items that are not income and applying appropriate exclusions. A person receiving SSI can still earn a certain amount and continue to receive SSI, but the income earned serves to decrease the amount that person will receive in SSI. 42 U.S.C.A.§1382h. The SSI recipient's income must fall below the SGA to continue to receive benefits.
Child support is deemed unearned income to a child for SSI purposes. SSA
POMS SI 00830.420(B)(1). This is because, in New Jersey, "child support
belongs to the child."
In order to prevent disqualification for SSI because of child support or
maintenance, parties should consider the use of a special needs trust,
which is designed to maintain eligibility for such programs.
J.B., 215 N.J. at 322. Such a trust is authorized pursuant to 42 U.S.C.A. §1396p(d)(4)(A) and
Parties may also consider a pooled trust, which is a self-settled trust that will maintain the child's eligibility for governmental benefits and is established and managed by a nonprofit organization instead of the parents, grandparents or guardian. Another potential consideration is a supplemental benefits trust, which is funded with the assets of a third party rather than with the assets of the disabled person. Thus, it may not be the appropriate solution for the ongoing payment of child support or maintenance. In order to ensure that this type of trust will not jeopardize the disabled child's access to governmental benefits, the child must have no control or access to the trust funds.
If a person qualifies for SSI, they can also automatically receive Medicaid and may be eligible for additional programs. Thus, the benefits of maintaining SSI eligibility are of paramount importance for a child with special needs, and parents must keep this issue in the forefront when determining the manner in which child support is paid and how child maintenance after the age of 23 will be handled.•
Health Care Law
**This content was written by Kory Ann Ferro of New Jersey Law Journal on May 15, 2017.