Divorce and the Child With Special Needs: Income Deeming and Child Custody

Divorce is a difficult process for everyone. If you have a child with special needs, the choices you make during a divorce can have lifelong repercussions, both for you and for the child. It is not always in the best interest of a child with a disability to receive a large award because child support could cancel the child’s SSI and Medicaid benefits.

But this is not the only problem child support creates for a child with special needs; a complicated process that the Social Security Administration (SSA) uses to evaluate household income can also wreak havoc with SSI and Medicaid benefits.

When a disabled child lives in a household with other people, the SSA takes into account the income of everyone who lives with the disabled child when it calculates eligibility for benefits. This is known as “income deeming.” The SSA applies a formula to determine what portion of the household income applies towards eligibility. If the total household income is too high, the disabled child can lose SSI and Medicaid.

In families going through a divorce, income deeming becomes especially important for two reasons. First, a child with special needs may have siblings who are also receiving child support from an absent parent. In these cases, that additional child support will count as household income and could place the SSI recipient’s benefits in jeopardy. Second, the choice of parent who will have custody of the child (the custodial parent) could throw off an SSI benefit if one parent’s household income is significantly different from the other’s. In many cases, loss of SSI benefits is not a key factor in choosing a custodial parent. But in other cases, especially when the child receives significant benefits from SSI and Medicaid, the choice of a custodial parent could make a tremendous difference for that child’s welfare.

If you or any of your loved ones are going through a divorce, Evan Farr can help you understand these complex income deeming regulations and will work with your divorce attorney to make sure that child support will not adversely affect your child’s future.

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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