By: Amy Wechsler, Esq. & Heidi Ann Lepp, Esq.
In New Jersey, child support is usually paid either directly between parents, or via the New Jersey Family Support Payment Center (“NJFSPC”) formerly known as “Probation.” Under a new law passed in 2017, NJFSPC can no longer collect and administer child support once a child reaches age 19, except in certain limited circumstances. One of these circumstances is when a child is disabled, in which case NJFSPC can continue collecting child support until the child is 23. Regardless of the circumstances, however, child support payable through NJPSPC, or ordered by a court is no longer an option after the child’s 23rd birthday.
What happens to child support when a disabled child turns 23? Parents can agree to any arrangement, including providing for support beyond that age. Judges, however, cannot order continuing child support. Nevertheless, although child support ends, there is still a way to obtain support from a non-custodial parent for an adult disabled child through “financial maintenance.”
To qualify for financial maintenance, the child must be determined to be disabled under either a federal or state government agency, the disability must have existed prior to the child reaching age 19, and the child requires continued support. For cases in which child support was provided before the child turned 23, an application to convert that support to financial maintenance can be made in the Family Part of the NJ Superior Court. For children who are declared incapacitated by a court, and a guardianship has been established, the application for financial maintenance is made in the Probate Part.
Unlike child support, there are no formulas to calculate financial maintenance. The law allows child support to be “converted” to financial maintenance, but that does not necessarily mean the same amount will be ordered. To determine the appropriate amount, judges require detailed information about the child’s needs and the family’s financial circumstances. Thus, when applying for financial maintenance, the application should include a Family Part Case Information Statement detailing household income, assets, debts and expenses.
It is important to avoid conflict with other forms of financial assistance available to disabled adults. Supplemental Security Income (SSI) and Medicaid benefits require certain financial eligibility, and the receipt of financial maintenance can result in a reduction or complete loss of these benefits. This impact can be minimized or avoided by creating a Special Needs Trust for the child, establishing a special account under the Achieving a Better Life Experience Act (ABLE), or directing payments to third party vendors (such as school tuition or cell phone service provider), instead of to the household or the child. In contrast, Disabled Adult Child (DAC) benefits, which are not means-tested, are not reduced by financial maintenance.
Parents are free to enter into creative agreements establishing support beyond what the law requires in order to meet the family’s individual needs. Parents who pay or receive child support for a disabled child approaching adulthood should plan ahead to best provide for the child’s future. This involves gathering information about how to secure government benefits, how to decide whether a Special Needs Trust is feasible, whether to seek guardianship, and whether, and to what extent, financial maintenance is appropriate.