When a couple is divorcing, it is important that they do not forget their commitments to their child with special needs. Most importantly, any child support for the child with special needs should be allocated under the separation agreement to a Special Needs Trust. This will ensure that these assets will not affect the child’s ability to receive government assistance in the future.
Parents planning to divorce should also consider whether or not they are going to establish separate trusts for their child. Each spouse could do so, using the same trustees and beneficiaries or different ones. Although it may be difficult, the parents of the child with special needs should make great efforts to coordinate the funding of the trusts so that they can be sure that adequate resources will be available to their child.
A common issue that occurs with divorce is that the parents fail to consider which one of them will become the guardian once the child reaches age 18. Parents should decide if one or both of them will retain guardianship. In addition, parents should decide who will be responsible for educational decisions with respect to their child. Both of these issues should be carefully addressed when drafting a divorce agreement so that disputes following the divorce will be minimized.
Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit Littmankrooks.com.
