Getting a Divorce When You Have a Special Needs Child

Special Needs Children and New Jersey Divorce
THE IMPACT OF CHILDREN’S SPECIAL NEEDS ON ISSUES IN DIVORCE
Bedminster • Cranford • Freehold • Hackensack • Mount Laurel • Parsippany

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DISCLAIMER
This presentation contains general information and does not constitute legal advice.
Be sure to direct specific questions about your own situation to an attorney.

DIVORCE AND SPECIAL NEEDS CHILDREN
• Defining Disabilities and Special Needs
 Physical Handicaps or Chronic Medical Conditions
 Intellectual Disabilities
 ADD and ADHD
 Learning Disabilities
 Autism Spectrum Disorders
 Emotional and Mental Disorders
 Dual Diagnoses
• Child Custody and Special Needs Children
• Court Procedures in Child Custody Cases
• Child Support and Special Needs Children
• Post Judgment Modifications in Parenting Orders
• Special Needs Children and Issues in Alimony and Property Distribution
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DEFINING DISABILITIES AND
SPECIAL NEEDS
SPECIAL NEEDS CHILDREN AND NEW JERSEY DIVORCE

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DEFINITIONS OF DISABILITY
• Special needs children vary widely in degrees of disability, and disability is defined
differently depending on the legal context. For example:
• Children with mild disabilities may be eligible for publicly funded special educational services if the
disability affects their right to a free and appropriate public education.
• A small proportion of children who qualify for educational services will also be eligible for
government benefits, or will qualify for establishment of a special needs or supplemental benefits
trust, which generally requires a disability so severe that a medical professional would consider an
adult with the disability to be unable to earn any substantial income from work for at least 12
consecutive months, or unable to earn substantial income from work because the disability is
likely to be terminal.
• For purposes of custody and child support decisions, which is our main focus here, every child is
unique, so evaluating special needs is simply part of the process of determining the best interests
of the child.
• If you are going through a separation or divorce, a family law attorney who has a solid
understanding of disability and special education issues can be a valuable asset in making
sure that your child’s needs are fully taken into account.
Protecting your special needs child
 Special Needs Children: Defining Disabilities

Statutory Factors:
SAFETY
These children may be less portable between
home and school or between two homes due to a
need for special adaptations, e.g.
 Accommodations for a wheelchair-bound
child.
 The need for a stable and familiar
environment for a sight-impaired child.
 The need for close monitoring of children
with medical conditions such as juvenile
diabetes.
In some cases, accommodations may mean one
primary home; in other cases it may mean building
in a longer transition time to work into a shared
parenting time arrangement.
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PHYSICAL HANDICAPS AND CHRONIC MEDICAL
CONDITIONS

Statutory Factors:
EMOTIONAL NEEDS
• Conditions like traumatic brain injury and genetic
disorders such as Downs Syndrome or Fragile X
Syndrome may result in a child facing a life-long
struggle with intellectual disability.
• Severely affected children typically require
specialized education programs designed to
accommodate their needs.
• Some will also attend after-school programs
providing services such as occupational therapy.
• Children with severe cognitive impairments often
have associated physical handicaps.
• Such children may require recurrent medical
treatment or rehabilitative care in addition to
special education services.
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INTELLECTUAL DISABILITIESINTELLECTUAL DISABILITIES

Statutory Factors:
THE STATUS QUO
• Children with ADD frequently have great
difficulty with concentration and physical
organization.
• Children with ADD sometimes also suffer from
learning disabilities or from emotional
disorders such as anxiety and depression.
• These factors can make changing homes more
stressful, particularly for school-aged children
who need a highly structured environment to
successfully complete homework.
• If the child spends some evenings before
school days at each parent’s home, the parents
may have to contend with frequent trips back
and forth for forgotten items.
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ATTENTION DEFICIT DISORDERS
(ADD AND ADHD)

Statutory Factors:
PREFERENCE OF THE CHILD
• Learning disabilities are neurologically-
based processing disorders that can
interfere with the way that the brain
interprets information taken in through
the senses.
• Learning disabilities range from mild to
severe but often impact a child’s
acquisition of basic skills such as reading,
writing or math.
• Children may have normal or even high
overall intelligence and yet struggle with
specific areas of learning.
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LEARNING DISABILITIES

POST JUDGMENT MODIFICATIONS
MOVE AWAY CASES?
 Autism spectrum disorders are being
diagnosed with increasing frequency.
 These disorders present a wide range of issues,
depending on the particular child and the exact
nature of the condition.
 Some children are mildly affected and high-
functioning, while others experience severe
disability.
 Some children will be labeled as both disabled
and gifted.
 Autism spectrum disorders can also overlap
with other conditions, including ADHD and
emotional disorders.
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AUTISM SPECTRUM DISORDERS

MOVE AWAY CASES?
 Emotional and mental conditions can range
from mild anxiety or depression to crippling
conditions such as schizophrenia, bipolar
disorder, or severe obsessive-compulsive
disorder
 A parenting plan for any child affected by this
kind of illness must ensure stability and
support.
 Children with these conditions almost always
require an intense investment of parenting
time and energy.
 The input of professionals, including a mental
health professional, will be essential.
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EMOTIONAL AND MENTAL DISORDERS

MOVE AWAY CASES?
 A substantial number of children will fall into
more than one diagnostic category, requiring a
parenting plan that takes all of the child’s
unique features into account.
 Sometimes a dual diagnosis will include a
determination that the child is both disabled
and gifted or talented.
 Children with disabilities can derive enormous
benefits when parents nurture a talent, such as
mathematical, artistic, or musical ability.
 A child with this kind of dual diagnosis will
require not only special accommodations for the
disability, but also accommodations to ensure
that the gift is nurtured.
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DUAL DIAGNOSES

CHILD CUSTODY LAW
AND SPECIAL NEEDS
CHILDREN

 Special Needs Children: New Jersey Child Custody
New Jersey Child Custody Law
• The child custody statute is gender neutral
(NJSA 9:2-4).
• The overriding policy is the best interests of
the children.
• The law presumes that frequent and
continuing contact with both parents is best
for children.
• Courts encourage parents to craft their own
parenting agreements.
• Virtually any combination of legal and
physical custody is possible.
• A judge will consider the factors in the
statute.
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• the parents' ability to agree, communicate
and cooperate in matters relating to the child;
• the parents' willingness to accept custody and
any history of unwillingness to allow
parenting time not based on substantiated
abuse;
• the interaction and relationship of the child
with parents and siblings;
• the history of domestic violence, if any;
• the safety of the child and the safety of either
parent from physical abuse by the other
parent;
• the preference of a child of sufficient age and
capacity to reason so as to form an intelligent
decision;
• the needs of the child;
• the stability of the home environment
offered;
• the quality and continuity of the child's
education;
• the fitness of the parents;
• the geographical proximity of the parents'
homes;
• the extent and quality of the time spent with
the child prior to or subsequent to the
separation;
• the parents' employment responsibilities;
and
• the age and number of the children.
NEW JERSEY CHILD CUSTODY FACTORS (NJSA 9:2-4)
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COMMON CUSTODY ARRANGEMENTS
Joint Legal Custody: Shared decision-making
with one primary residential parent (most
common)
Shared Legal and Physical Custody: Equal or
nearly equal parenting time with equal
responsibilities (also common, but requires
above-average co-parenting skills)
Sole Legal and Physical Custody. Child
resides with one parent, and that parent also
has sole decision-making authority (unusual
unless one parent is absent or abusive)
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Legal Custody
• Includes decision-making about schooling, religious
upbringing, and medical treatment beyond routine
or emergency care.
• New Jersey courts usually order joint legal custody
unless one parent is absent or abusive or the
parents are so antagonistic that they will not be able
to work together in the best interests of their child.
• Joint legal custody usually means parents make all
decisions together, but in some cases, one parent
will have authority over certain aspects and the
other will have authority over other aspects.
• Day to day decisions are generally made by
whichever parent a child is physically with at any
given time.
Legal custody governs a parent’s
authority to participate in major
decisions regarding a child’s health,
education, and general welfare.

LEGAL CUSTODY AND SPECIAL NEEDS CHILDREN
Legal Custody may be a bigger issue with a special needs child due to the number and type of
decisions facing parents. For example:
• Choosing an appropriate educational setting for a child may require consideration of a
greater number of factors.
• Some children may have to undergo frequent medical procedures, requiring parents to
evaluate potential consequences and provide or withhold consent on a recurring basis.
• Some children will not reach independence at the usual age, or may be unlikely to ever
achieve full independence, requiring parents to consider who will act as guardian.
• If parents cannot navigate all of these difficult decisions together, the court might award
sole legal custody to the parent who has acted as primary caretaker.
• If there is high conflict but both parents have been actively involved in the child’s care, the
court will choose the parent who appears most likely to make decisions in the child’s best
interests.
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Physical Custody
• One parent can have sole physical custody or
parents can share custody.
• Sole physical custody means that the child spends
the majority of the time with one parent.
• It usually allows for liberal visitation, or liberal
“parenting time” for the other parent.
• There is no default plan in New Jersey other than
frequent and continuing contact with both
parents.
• Parents can create a plan works best for the child
and the rest of the restructured family.
Physical custody governs which
parent a child lives with.

PHYSICAL CUSTODY AND SPECIAL NEEDS CHILDREN
Many special needs children are less “portable” than the average child, meaning that the
child’s needs increase the difficulty in moving back and forth easily between two separate
homes.
• The limitations of children with physical handicaps are varied but usually easily
ascertainable.
• The limitations of children with emotional and mental disabilities may be less obvious
but just as complicated.
• Regardless of the nature of your child’s disability, you are likely to need input from
medical or mental health professionals to ensure that a parenting plan meets your
child’s needs.
• Parents who can work well together may have success consulting professionals
together, which will be cheaper by far than securing separate experts and will also
tend to lessen the impact of parental conflict on a child who is already dealing with
more than a fair share of stress.
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AGREEMENTS BETWEEN
PARENTS
• Courts prefer that parents make their own
agreements about how to share parental
responsibilities and parenting time.
• Ideally, parents work together to develop
a schedule that fits the needs of everyone
in the restructured family.
• Your child’s medical professionals and
caregivers can provide valuable input.
• A family therapist, or your child’s
therapist, can also be a good resource.
• If you are unable to reach agreement,
consider Alternative Dispute Resolution.
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• Shared parenting will require carefully weighing
the child’s needs and each parent’s ability to
meet those needs.
• A parent who has functioned as the primary
caregiver for a child during marriage may be
overwhelmed by the time and energy required
to maintain this role as a single parent.
• On the other hand, a parent who has been less
actively involved may find it more difficult than
ever to form a close bond with the child after
separation
• The child’s medical professionals and the
existence of existing accommodations such as
an IEP at the child’s current school can help in
the evaluation of appropriate custody
arrangements.
• In some cases, parents may need to hire
additional child-care or agree that one parent
will pursue a flexible career that permits more
at-home time with the child.
• Children who receive supplemental tutoring or
therapy outside of school will present additional
time and transportation challenges.
• A parenting plan must take into account the
location of appropriate medical, therapeutic or
rehabilitative facilities resources, the child’s
transportation needs.
• For some children, the severity of the child’s
condition means that the only feasible solution
will be to limit shared parenting to weekends,
holidays and vacations
GENERAL CUSTODY CONSIDERATIONS FOR ALL PARENTS
OF SPECIAL NEEDS CHILDREN
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• A designation of the child’s primary residence,
• A description of legal custody,
• A specific time-sharing schedule with provisions for dividing holidays, birthdays, and
vacations,
• Rules regarding access to medical records, report cards, teachers, etc.,
• A description of responsibility for specific expenses and for sharing unanticipated expenses,
• A description of responsibility for transportation of children and for transportation costs,
• A designation of the parent(s) who will take off work if a child is sick or needs to attend
appointments,
• A means of addressing potential schedule changes or modifications as children get older or
needs change,
• An agreement to attend mediation to resolve future conflicts, and
• Any other agreements parents wish to include that are enforceable and in the child’s best
interests.
Parenting Plans: Things to Include

PRIVATE CUSTODY MEDIATION
AN OUT-OF-COURT ALTERNATIVE
• Families with special needs children are
often under a great deal of stress.
• Stress can in turn raise conflict levels.
• Mediation can reduce conflict and
decrease the stress on everyone.
• Mediation is confidential and can keep
private family matters out of the public
record.
• Private mediation offers many additional
potential benefits, including increased
control over both the process and results.
• Private mediation can be instituted prior
to filing a court case.
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PRIVATE CUSTODY MEDIATION
AN OUT-OF-COURT ALTERNATIVE

COURT PROCEDURES
IN CHILD CUSTODY
CASES

 Special Needs Children: Custody and Court Procedures
COURT HEARINGS
• If parents cannot agree on a parenting
plan that meets the child’s best interests,
the court will hold a full hearing on the
issue and order a plan.
• This may be a separate hearing or part of a
full trial, but custody issues are generally
expedited
• Judges rely heavily on child custody
evaluators to provide professional
opinions.
• Costs in contested custody cases can
quickly run out of control and that results
are never guaranteed.
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PENDENTE LITE MOTIONS IN FAMILY COURT
• Pendente lite motions are requests for temporary relief during the pendency of a case.
• Many parents are able to reach a temporary separation agreement that covers
parenting time and temporary support without going to court.
• If the parents cannot agree, the parent in need of relief may need to file a motion.
• Temporary child custody orders are generally based on maintaining the status quo
that existed before commencement of any legal action related to custody.

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COURT-MANDATED MEDIATION AND OTHER
COURT REQUIREMENTS
• New Jersey courts order most parents with custody disputes to participate in court-
sponsored parenting mediation.
• Domestic violence or abuse and other circumstances that amount to good cause will
generally release parents from required mediation.
• Parents must submit proposed parenting schedules to the court.
• Courts also require parents with custody disputes to attend parenting classes
(separately rather than together).

PRIVATE CUSTODY EVALUATIONS
• Family court judges can order social
investigations and “best interests of the
child” reports,
• May include home inspections,
• May also include psychological,
psychiatric, parental functioning
assessments or mental health evaluations
if necessary.
• Parents can jointly hire a mental health
expert to conduct the investigation and
prepare the report, or
• Parents can each hire their own expert,
• Child custody evaluators must be neutral
and follow uniform standards, regardless
of who hires them.
Custody Investigations & Evaluations
COURT ORDERED INVESTIGATIONS
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USING A NEUTRAL CHILD SPECIALIST
• A licensed mental health professional
with training in child development and
family systems can review proposed
parenting plans in light of the best
interests of the children.
• Choose someone with experience
working with parenting issues common
to family reorganization.
• The more qualified your expert is, the
more their opinion will stand up in court
if need be.
• Experts must be neutral but can still have
biases, so be sure to be familiar with the
expert’s prior opinions.
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USING A CHILD SPECIALIST

USING A NEUTRAL CHILD SPECIALIST
Children who are mature enough and
intellectually and emotionally capable of
communicating needs and preferences may
be interviewed by:
• A child specialist,
• The judge, in chambers, or
• a guardian ad litem (GAL)—a court-
appointed person with knowledge and
experience in child development who
conducts an investigation and reports to
the court.
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CHILD INTERVIEWS

CHILD SUPPORT FOR
SPECIAL NEEDS
CHILDREN

NEW JERSEY CHILD SUPPORT
• Payment of child support in New
Jersey is governed by state statute
(NJSA 2A:34-23) and calculated
according to a formula.
• Child support guidelines and forms
for calculation are contained in New
Jersey Court Rules (5:6A and
Appendix IX).
• Both parents have a duty to support
their children financially to the best
of their ability, regardless of custody
arrangements.
 Special Needs Children: New Jersey Child Support
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NEW JERSEY CHILD SUPPORT PAYMENTS AND
ALLOCATIONS
Primary Factors:
• The parents combined income (can
be imputed),
• The number of children,
• Each parent’s percentage share of
combined income, and
• The amount of time a child spends
with each parent.
Who Pays:
• Each parent is responsible for a
percentage of support.
• Non-custodial parent pays support
to custodial parent.
• With shared physical custody,
either parent could pay the other,
depending on income and time-
sharing arrangements.
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Analyzing Income Available for Support
The New Jersey Child Support Guidelines include a complete description of
income available for child support.
Gross income includes most types of earned or unearned income. If you have
unusual sources of income, you may need a forensic accountant for
calculation.
Common examples of income include wages, commissions, self-employment
income, bonuses, dividend or interest income, alimony, rents received,
worker’s compensation or unemployment insurance benefits, and pensions.
Income available for child support (or spousal support) is generally net
income, or gross income minus allowable deductions.
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ADDITIONAL CHILD SUPPORT PAYMENTS
FOR HIGH INCOME FAMILIES
• The child support guidelines can be used to calculate support for parents with a combined
annual net income of up to $3,600 per week, or $187,200 per year.
• Base weekly support amounts on an income of $ 187,200 per year are as follows:
One child—$571; Two—$589; Three—$731; Four—$803; Five—$884; and Six—$973.
• When a family has a higher income, a court will begin by awarding the above amounts
(apportioned by income), and then add a discretionary amount based on the additional
income and the factors in the New Jersey Child Support Statute (NJSA 2A:34-23).
• To show need for additional support, a custodial parent or parent of primary residence
must prepare two separate budgets, one for the parent and child together and one for the
parent alone.
• The budget for the children should include two parts, one based on the parent’s own
income and the other including additional items that children need to be able to share in
the economic status of the higher income non-custodial parent or parent of alternate
residence.
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EXAMPLES OF ITEMS A COURT MIGHT APPROVE AS ADDITIONAL CHILD
SUPPORT IN A HIGH-INCOME FAMILY
• private school tuition,
• private tutoring,
• summer camps,
• music or art lessons,
• sports clinics,
• vacations,
• study abroad,
• a car for a child of driving age,
• payments on a family car,
• costs of maintaining the child’s
primary residence,
• extra clothing and incidental items
for teenagers,
• a 529 plan for college funding, and
• additional savings accounts or trusts
on behalf of the children.
• Not all high-income parents will be expected to pay for all of the listed items; nor is the list
exclusive.
• Courts recognize that high income can fluctuate and that children’s needs change over time.
• The basic underlying principle is that children are entitled to share in the standard of living of
both of their parents.
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NEW JERSEY CHILD SUPPORT
STATUTORY FACTORS
• Needs of the child;
• Standard of living and economic
circumstances of each parent;
• All sources of income and assets of each
parent;
• Earning ability of each parent, including
educational background, training,
employment skills, work experience,
custodial responsibility for children
including the cost of providing child care
and the length of time and cost for each
parent to obtain training or experience
for appropriate employment;
• Need and capacity of the child for
education, including higher education;
• Age and health of the child and each
parent;
• Income, assets and earning ability of the
child;
• Responsibility of the parents for the
court-ordered support of others;
• Reasonable debts and liabilities of each
child and parent; and
• Any other factors the court may deem
relevant.
Factors courts consider when supplementing guideline awards NJSA 2A:34a-23a:
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• Parents of special needs children need to be sure that their child support agreements and
orders include detailed provisions for how the parent will handle health care expenses.
• The first question is what kind of insurance coverage is available to the child and which
option will be most cost-effective for everyone.
• Expenses generally fall into three categories:
• Insurance premiums for a plan that will cover many expenses,
• Predictable and recurring expenses not covered by insurance, and
• Unpredictable and non-recurring expenses not covered by insurance.
Child Support and Health Care Expenses

Predictable and Recurring Health Care Expenses
• The basic income-based child support amounts
build in an allowance for medical costs of up to
$250 per child per year.
• A parent can add the cost of including a child in a
health insurance policy to this basic child support
amount.
• A parent can also add the cost of any predictable
and recurring health care expenses that will not
be reimbursed by insurance and exceed $250 per
child per year.
• For example, if your child will be attending
therapy on a weekly basis for an indefinite length
of time, and the therapy is not covered or is only
partially covered by insurance, a judge can add
the non-covered portion of the cost to the regular
child support award.
• Other examples of health care expenses that a
court might add to a child support award include
fees for speech, occupational, or physical therapy,
home health care, psychological counseling,
prescription medications, prosthetics, and
assistive technology.
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Unpredictable and Non-Recurring Health Care Expenses
• If a child has unpredictable and non-
recurring health care expenses of over $250
per year, the court will not be able to
predict these sufficiently to include them in
the child support award but will usually
order parents to share them as they arise,
generally in proportion to their respective
incomes.
• The custodial parent will usually be
responsible for paying the expenses and for
providing the non-custodial parent with
receipts for reimbursement within a
reasonable amount of time.
• If you anticipate these kinds of expenses,
be sure that your agreement or court order
specifically defines the type of expense that
you and your child’s other parent have
agreed to split or that the court has
ordered you to split.
• A parent can object to providing
reimbursement for any expense that falls
outside the scope of the order or
agreement, and the result could be a court
battle.
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Extraordinary Child Support Expenses
• Child support awards can also include predictable and recurring “extraordinary” expenses.
• These include expenses for special needs children (and for gifted children, who are sometimes the
same children).
• Expenses can cover a wide variety of goods and services, including special schooling, private
tutoring, and assistive technology necessary for the child’s education.
• A court will generally apportion agreed on or court-approved predictable and recurring
extraordinary expenses between the parents according to their respective incomes and then add
the appropriate amount to the child support award.
• A court can also order parents to share the costs of any unpredictable and non-recurring
extraordinary expenses as they are incurred.
• As with unpredictable health care expenses, the custodial parent will generally be responsible for
providing proof of payment to the non-custodial parent before being entitled to reimbursement.
• If your child has extraordinary expenses that the other parent does not believe are necessary, you
will have to prove to the court that the particular expense is reasonable in light of your child’s best
interests and both parents’ combined ability to pay the expense.

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EDUCATIONAL SERVICES FOR SPECIAL NEEDS CHILDREN
• Divorcing parents sometimes find themselves on the same page in attempts to obtain
appropriate services for their child from a public school, but on opposite pages in an
argument over whether or not a judge should include the cost of obtaining such services
privately as an extraordinary expense in a child support order.
• Whether you are seeking public school services or attempting to establish the need for a
parental contribution to privately obtained services, its important to understand the
educational evaluation process:
• Even children with mild disabilities may be eligible for publicly funded special educational services
pursuant to an Individualized Educational Program (IEP) or a 504 plan if the disability affects their
right to a free and appropriate public education.
• A parent can submit a written request (even a dated handwritten note will suffice) to the
appropriate representative of their school district through their child’s teacher, counselor, or
principal.
• Within 20 days of any request the school district must hold a meeting to decide whether evaluation
is appropriate.
• A family law attorney who has a solid understanding of special education issues can provide
you with additional informatoin.
Your special needs child is entitled to educational support.

NEW JERSEY PRIVATE SCHOOL TUITION AND EXPENSES
AN EXTRAORDINARY CHILD SUPPORT EXPENSE
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Factors courts consider when ordering contributions:
• The parent’s ability to pay.
• Any prior agreement by the parent to pay.
• Whether the child support guidelines allow
payment.
• The past attendance of either parent at the same
school or a similar school.
• The degree to which the academic environment
meets the child's best interest.
• The child’s pre or post divorce private school
attendance.
• The religious background of the parents and the
child.
• The private school’s advancement of the child’s
special educational, psychological or special
needs.
• Whether a court order or agreement grants one
parent the right to choose a school.
• The reasonableness and historical consistency of
the custodial parent’s views and enrollment
decisions.
• The child’s ability to respond to and prosper
from the educational experience.
• Each parent’s history of involvement in
educational decisions.
If only one parent believes that a public school, even with an IEP or 504 Plan, is inadequate to meet their child’s needs,
that parent will need to provide expert testimony demonstrating:
• the need for the private program based on factors such as the child’s precise condition,
• the demonstrated success of the private program as compared with the public alternative, and
• evidence of the ability of you and your spouse to pay for the private program.
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If no continuation is granted after the
second notice, the order of support ends as
of the child's 19th birthday.
A parent can oppose an updated order for
continued support by filing an application or
motion with the court. If you have multiple
children on the order, you can file to adjust
the child support amount.
TERMINATION OF NEW JERSEY CHILD SUPPORT
New Jersey law has established 19 as the
presumptive ending age for child support
and/or medical support obligations.
When does New Jersey child support end?
Support may continue up to age 23 if the
child is still in high school; is attending full-
time college, vocational or graduate school;
is disabled; or if the parties reached a
separate agreement or have a court order
for continuing support.
Under no circumstances will a New Jersey
court order child support for children over age
23.
The New Jersey Child Support Office mails a
Notice of Proposed Child Support Obligation
Termination 180 days before a child's 19th
birthday. If there is no response, they mail a
second notice 90 days before the
dependent's 19th birthday.
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POTENTIAL IMPACT OF CHILD SUPPORT ON ELIGIBILITY FOR
GOVERNMENT BENEFITS
• In some cases, a child with special needs will be eligible for various government benefits.
• If you are not certain whether your child’s disability reaches the requisite level of severity, you
can obtain more information from the U.S. Social Security Administration or the New Jersey
Department of Labor and Workforce Development.
• In the case of “means-tested benefits” (meaning benefits with eligibility based on a custodial
parent’s available income and resources), such as Supplemental Security Income (SSI) and
Medicaid, child support payments for a child under age 18 can affect eligibility, sometimes
disqualifying the child for benefits entirely
• It may be possible to minimize or eliminate this effect by structuring child support so that the
non-custodial parent deposits payments into a trust set up for the child’s benefit rather than
providing payments directly to the custodial parent
• You may need to consult with both a family law attorney and a trusts & estates attorney to
determine the best way to provide for your child.
Maximizing benefits for your special needs child

• A trust can provide payment for medical
treatment and equipment, for necessary
requirements of life such as food, shelter,
clothing and transportation, and for a wide
variety of life-enhancements, such as vacations,
education and entertainment.
• Because SSI is intended to provide basic
subsistence items such as food and shelter, the
child’s SSI payment may be reduced if a trust
covers this type of expense; nevertheless,
creation of the trust may preserve the child’s
overall SSI eligibility.
• In general a disabled child will require either a
special needs trust, funded with assets belonging
to the child, or a supplemental benefits trust,
funded with assets belonging to a parent or
another third party.
• In either case, parents will need to appoint a
trustee to manage the trust for the child.
• If you are interested in setting up either a special
needs or a supplemental benefit trust for your
child, it is imperative to consult with an attorney
who has experience with such trusts and
understands all of the following:
• the rules regarding proper establishment of
the trust,
• the rules governing the kinds of things that the
trust can pay for or not pay for,
• the rules covering how and to whom payments
can be made,
• tax benefits and ramifications, and
• all applicable rules of any public benefit
programs that your child is currently eligible
for or may become eligible for in the future.
SPECIAL NEEDS AND SUPPLEMENTAL BENEFITS TRUSTS
A trusts can provide for both the current and the future needs of a child
47

POST JUDGMENT
MODIFICATIONS IN
PARENTING ORDERS

49
 Special Needs Children: Post Judgment Modifications
What if things change after final custody orders?
Child custody and support orders can be modified until a children is emancipated.
All modifications require a substantial change in circumstances.
A custody or parenting time modification might be appropriate if a parent is seeking:
• A change in the primary residential parent
• A change from sole custody to joint custody or vice versa
• A significant decrease or increase in parenting time
Courts will generally expect parents to try to work things out through negotiation or
mediation before going to court.

WHAT IS A SUBSTANTIAL CHANGE?
POTENTIAL TRIGGERING EVENTS:
• Change in parental fitness,
• Permanent change in the child’s school or
extracurricular schedule,
• Interference by one parent with the other
parent’s time,
• Ongoing contentious relationship between
parents affecting the child,
• One parent’s relocation out of the area.
• A significant change in the child’s medical or
educational needs.
Courts considering a request for a major change
will require proof that the change is necessary
to further the child’s best interests.
50
Requirement of Substantial Change of Circumstances

• The needs of all children change over time, and
changes may be more pronounced for children
dealing with disabilities.
• In some fortunate cases a disability may resolve
entirely, or a child’s treatment and adaptation
will be so successful that many of the original
concerns no longer apply.
• In other cases, the need for accommodations
and services may increase over time.
• Whether you are attempting to reach an
agreement regarding a parenting plan, define
extraordinary expenses in a child support
agreement, or outline the provisions of a trust,
consider building in contingencies for future
developments to the maximum extent possible.
• As with initial plans, your child’s medical
professionals and educational professionals in
charge of school accommodations can help in
the evaluation of appropriate modifications.
• Because many changes are unpredictable,
agreements can also include provisions
dictating the way that parents will approach any
potential future disputes.
• For example, you can agree to attend mediation
prior to filing any papers in court.
PARENTING TIME AND CHILD SUPPORT MODIFICATIONS AND
OF SPECIAL NEEDS CHILDREN
51

SPECIAL NEEDS CHILDREN:
ALIMONY & PROPERTY
DISTRIBUTION

 Special Needs Children: Alimony & Property Division
NEW JERSEY ALIMONY & PROPERTY DIVISION
THE IMPACT OF CHILDREN’S SPECIAL NEEDS
• The impact of a child’s special needs on an alimony
decision will generally depend on how those needs
affect the primary parent’s ability to work outside
the home.
• Parents may disagree on the necessity of a custodial
parent remaining home with the child, as opposed
to obtaining child-care services that would allow the
parent to work.
• Parents who cannot reach agreement on this point
may need to obtain a professional opinion from an
evaluator regarding the impact of the child’s needs
on the primary parent’s ability to work.
• They may also need a vocational evaluation to help
the primary parent identify career paths that might
• be compatible with the child’s needs (by
allowing for part-time or at-home work, for
example).
• The child’s needs could also affect property
distribution if a parent who is unable to work
due to those needs requests a greater amount
of marital property in lieu of alimony.
• In addition, while a custodial parent generally
has a somewhat better argument in favor of
keeping the marital home (or at least keeping
temporary residence in the marital home) as
opposed to a non-custodial parent, the custodial
parent of a special needs child may have an
even stronger argument.
53

Types of New Jersey
Alimony
TEMPORARY (pendente lite)
Maintains the “status quo” during the divorce.
AFTER FINAL JUDGMENT
Four different types, each with a specific purpose:
OPEN DURATIONAL
• No predetermined end date.
• Absent exceptional circumstances, available only after
marriages of at least 20 years.
• Purpose is to help recipient maintain marital standard of
living.
LIMITED DURATION
• Term specified in advance.
• Absent exceptional circumstances, limited to length of
marriage
• Purpose is to help recipient maintain marital standard of living.
REHABILITATIVE
• Limited duration alimony with s specific purpose
• Purpose is to helping a lower earning spouse obtain tools
necessary for self-support.
REIMBURSEMENT
• Single payment or limited duration with a specific purpose.
• Purpose is to compensate one spouse for financial
contributions to the education or career advancement of the
other.
0
1
1
0
1
2
3
4
54

Coordinating Property Distribution with Alimony
Planning
While courts consider alimony to be separate from property distribution
and to serve a different purpose, they also take into account many of
the same factors in analyzing these two aspects of divorce.
Couples attempting to resolve disputes regarding property or alimony
should generally consider these aspects together, as a decision on one
point will almost always affect a decision on the other.
55

56
What is equitable distribution?
• Equitable distribution is the law applying to property division in a New Jersey
divorce.
• New Jersey requires a fair division of marital property – not an exactly equal
division.
What is marital property?
• Marital property is property (and debt) that either or both spouses acquire during
marriage.
• It does not include property owned before marriage, inherited property, or gifts
from someone other than the spouse.
56

New Jersey Equitable Distribution
Statutory Factors
a. The duration of the marriage;
b. The age, physical and emotional health of the parties;
c. The income or property brought to the marriage by each
party;
d. The standard of living during the marriage;
e. Any written agreement made by the parties before or during
the marriage concerning an arrangement of property division;
f. The economic circumstances of each party at the time the
division of property becomes effective;
g. The income and earning capacity of each party, including
educational background, training, employment skills, work
experience, length of absence from the job market, custodial
responsibilities for children, and the time and expense
necessary to acquire sufficient education or training to enable
the party to become self-supporting at a standard of living
reasonably comparable to that enjoyed during the marriage;
h. The contribution by each party to the education, training or
earning power of the other;
i. The contribution of each party to the acquisition, dissipation,
preservation, depreciation or appreciation in the amount or
value of the marital property, as well as the contribution of a
party as a homemaker;
j. The tax consequences of the proposed distribution to each
party;
k. The present value of the property;
l. The need of a parent who has physical custody of a child to
own or occupy the marital residence and to use or own the
household effects;
m. The debts and liabilities of the parties;
n. The need for creation, now or in the future, of a trust fund to
secure reasonably foreseeable medical or educational costs
for a spouse or children;
o. The extent to which a party deferred achieving their career
goals; and
p. Any other factor which the court may deem relevant.
57

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