When Divorce Is the Only Answer and a Family Member Has Disabilities
by Linda Ershow-Levenberg, Certified Elder Law Attorney (C.E.L.A.)
Updated August, 2020
Practice Area: Family Law
When a marriage is beyond repair, legal assistance is needed to assist you to protect your interests with regard to separation including income support, property settlement, and living arrangements. When there are children of the marriage, there will be additional concerns such as child support, child custody and parenting time arrangements. If any of the family members has disabilities, special planning strategies are available to protect the disabled person. Speak with one of our attorneys about the special needs of your situation. We integrate the following techniques into our matrimonial cases:
Medicaid eligibility – We prepare Medicaid spend-down plans and we file Medicaid applications for spouses who are separated or getting divorced who require long-term care.
Legal Guardianship – If one of the spouses lacks legal capacity, we assist the concerned family member to file for legal guardianship.
Special Needs Trusts – If a divorcing spouse who is under 65 is in need of Medicaid benefits to pay for assisted living care or community-based care, a Special Needs Trust can be created and a court can order that the alimony be paid into the trust. This technique can preserve eligibility for Medicaid and provide the disabled person with a source of funds for all of the special supplemental needs that might not otherwise be covered by Medicaid alone. Similarly, assets received in property settlement can also be transferred into a Special Needs Trust.
Social Security Disability – If a spouse is insured under the Social Security system by working the required amount for 40 calendar quarters, and now can no longer work due to a medically-determinable condition that is likely to last 12 months or more despite available treatment, or which is terminal, s/he can apply for Social Security Disability benefits to provide a source of income.
Supplemental Security Income (SSI) – If a spouse or an adult child is disabled and cannot work, but isn’t insured under the Social Security system due to insufficient work history or other reasons, s/he can apply for SSI benefits to provide a source of income as well as to receive Medicaid for health insurance. These applicants cannot own more than $2,000 in countable resources; if they are under 65, we can prepare Special Needs Trusts and assist them to become financially qualified for these benefits.
Wills and Estate Plans – Divorcing spouses generally need to revise their Wills, their Powers of Attorney, and the beneficiary designations on their assets. We provide comprehensive review of the estate plan and prepare all necessary documentation to ensure that the client’s needs and wishes are met.
Trusts for Disabled Children – If the client has a child with disabilities, there is often a need to prepare a Trust which will receive any inheritance left to that child, or to receive funds that may be allocated in the course of a divorce settlement. This may include Life Insurance trusts. We prepare the trusts that are needed to fully implement the property settlement and child support arrangements agreed to by the parties, and we assist the client with the implementation and follow-up.
To make an appointment or speak to an attorney about disability planning & protection issues related to divorce, legal guardianship, Special Needs Trusts for disabled persons, call 732-382-6070 or contact us online.