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Extra Child Support for a Special Needs Child
Is a special needs child legally entitled to receive extra child support?
The child support guidelines simply don't satisfy the needs of a special needs child. The child support guidelines don't take into account the many extraordinary expenses that a special needs child always requires. These extra costs include specialized therapy, equipment, medications, special dietary costs, special schooling, tuition, etc. If the child support guidelines are routinely applied then the child support award would certainly not even remotely cover the actual needs of a special needs child.
Given the above reality, if a divorcing couple has a special needs child, then there needs to be a deviation from the child support guidelines. New Jersey Court Rule 5:5A provides that upon good cause, the application of the Child Support Guidelines may be modified or disregarded. It is important to emphasize that paragraph 9(d) of Appendix IX-A to the Court Rules specifically acknowledges that the guidelines fail to take into account the additional expenses that are incurred by a family that has a special needs or a disabled child(ren). Therefore, in this type of scenario, an above the amount guideline calculation should be ordered by the court.
How should the extra costs needed to raise a special needs child be incorporated into the child support guidelines?
When people get divorced, everyone cries poverty. Therefore, it is no easy task to try to convince the payor spouse to deviate from the guidelines. However, if a special needs child has predictable and recurring expenses then most courts will require that these items should be added to the child support award. The most typical examples of predictable and recurring expenses for a special needs child are special diets and special educational costs. These expenses are a consistent part of the family's lives. Therefore, most courts will approve that these expenses should be added to the child support award.
Are the rules any different to emancipate a special needs child?
The rules for the emancipation of a special needs child is certainly different. It is black letter law that a child emancipates once he reaches the age of majority, graduates from high school, or graduates from college. However, these rules are not applied to a child who is a special needs child. It is important to emphasize that emancipation is considered to be an event in the law, and it is not simply a date certain. The key concern is that emancipation occurs when a child moves beyond the sphere of influence and responsibility exercised by a parent and achieves an independent status on his or her own. See, Bishop v. Bishop, 287 Super, 593, 598 (Ch. Div. 1995).
In the real world, most special needs children may never move beyond their parent's "sphere of influence". Therefore, child support for a special needs child may continue for a very long time. A parent may be required to support a special needs child who even though he may have reached the age of majority. If the special needs child is incapable of maintaining himself due to their illness or disorder then most judges will not declare the child emancipated. In closing, in many cases a court will never declare a special needs child emancipated. Thus, child support could continue indefinitely for a special needs child.
In New Jersey, a separation agreement is any legal document signed by both spouses outlining the terms of the separation. Subjects resolved in a separation agreement can include child support, child custody, debt allocation and asset distribution. Notarizing the document ensures its validity, since there is no such case-type in New Jersey that provides for a "legal separation." Spouses wanting child support during the separation period, however, must file a claim with the New Jersey probation department.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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