The end of a marriage does not end the parents’ commitment to their child with special needs. Parents going through a divorce (and the attorneys advising them) should pay particular attention when the parents have a child with special needs to (i) the allocation of child support for the child with special needs, (ii) the parent’s own estate-planning and guardianship and education decisions.

If a child with special needs has been deemed disabled under the Social Security Administration definition by the appropriate agency, child support dedicated to that child should be allocated under the separation agreement to a special-needs trust so that these assets do not affect the child’s ability to receive government assistance. Child support, although paid directly to a spouse, is considered to be an asset of the child for purposes of determining eligibility for means-tested governmental programs. To avoid disqualifying the child from governmental benefits, the divorce agreement should direct child support payments to be made directly to a first-party special-needs trust, instead of directly to the custodial spouse. The child with special needs will be the sole beneficiary of the trust and the custodial parent can be the trustee. In this way, the child support will be used for the child’s benefit without disqualifying the child from benefits he or she may receive now or in the future.

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