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Special Needs Planning Issues Following Divorce (Part II)


Special needsDivorce can be complicated, frustrating, disappointing, expensive, along with a whole range of other emotions, as anyone who has endured this type of proceeding can attest. As difficult as the issues can be in a divorce proceeding, can you imagine what happens when divorce involves a child with a disability? 

Just in time for our workshop on Special Needs Planning, let's review an often overlooked aspect in this important planning process.  This is the 2nd in a three part series offered yesterday, today and  tomorrow .

Let's tackle this issue by focusing on one case study to illustrate how much more difficult the issues can be when a child with a disability is involved in the marital split and how important it is to have someone knowledgeable in government benefits and special needs planning issues participate in the proceedings.

Can the Daughter Qualify for SSI?
During the course of the proceedings, the wife appears to be the only person testifying as to the question of whether her daughter can qualify for SSI benefits and the utility of creating a special needs trust for her daughter. According to the wife, her daughter cannot qualify for SSI benefits due to the so-called deeming rules, pursuant to which a parent's income and assets are deemed to be available to the child for purposes of determining the child's eligibility for SSI benefits. The husband argues that the wife should apply for SSI for their daughter, but she refuses to do so, citing the deeming rules as an obstacle to her daughter's eligibility, and arguing that her own work income and $400,000 in assets will result in a denial of eligibility.

Without expert testimony, the court may have determined that the daughter was not eligible for SSI benefits, based solely on the testimony of the wife, who had apparently "done her own research on the issue." In fact, the deeming rules stop when a person turns age 18 under CFR Sections 416.1165 and 416.1851, and their daughter could qualify for an SSI benefit of up to $674, plus any additional state supplement. With this testimony now on the record, the husband is able to argue, credibly, that his daughter is entitled to a monthly SSI benefit of $761 and, if she were to avail herself of this benefit, then this increased income should be taken into account by the court in evaluating husband's request for a downward modification of the original child support payment. 

Tomorrow blog will explore this issue of D4a Trusts for the special needs child.

You can learn more about this topic as well as other strategies on our website under the tab entitled: special needs planning in Virginia. Be sure you also sign up for our complimentary e-newsletter so that you may be informed of all the latest issues that could affect you, your loved ones and your estate planning.  However, proper estate planning is not a do-it-yourself project.  Why not call us for a complimentary consultation at 757-259-0707.

 

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