Assignment of Income Streams to Special Needs Trusts and Supplemental Benefits Trusts

By Donald D. Vanarelli, Esq.

I. PUBLIC POLICY / BACKGROUND: TRANSFER OF ASSETS

Special needs trusts¹ are estate planning devices that are specifically permitted under federal and state Medicaid law, which further New Jersey’s public policy regarding the rights of the disabled.N.J.S.A. 3B:11-36; see J.P. v. Division of Medical Assistance and Health Services, 392 N.J. Super. 295 (App. Div. 2007).

Special needs trusts may be “first party” trusts (“d(4)(a) trusts”), which contain the assets of the disabled beneficiary; or “third party” trusts (sometimes referred to as “supplemental benefits trusts”), which contain the assets of a third party (usually a parent or grandparent). The legal requirements differ for establishing each type of trust, and care must be taken to establish the special needs trust to comply with applicable law, so that the assets of the trust are not considered “available” to the disabled beneficiary, thus rendering the beneficiary ineligible for Supplemental Security Income (“SSI”), Medicaid, or other public benefits based upon need.

A. Asset Transfers to a Self-Settled Special Needs (“(d)(4)(a)”) Trust

The transfer of the disabled individual’s own assets into a qualifying self-settled special needs trust (which contains the disabled person’s own assets, rather than the assets of a third party) does not render that individual ineligible for public benefits.² Once transferred, the assets contained in that trust are exempt from being counted as a “resource,” for purposes of determining eligibility for public benefits.³

Pursuant to federal law, as amended on August 10, 1993 by the Omnibus Budget Reconciliation Act of 1993, Public Law No. 103-66, placing an individual’s funds directly into a special needs trust may permit that individual to obtain eligibility for public benefits, because those assets are not counted in determining eligibility. That statute begins with the general provision that, when the assets of an individual are placed in a trust, those assets are countable:

For purposes of determining an individual’s eligibility for … benefits under a State plan established under this subchapter, subject to paragraph (4), the rules specified in paragraph (3) [regarding trust assets being considered “available” and countable resources of the individual] shall apply to a trust established by such individual.

However, the above-quoted provision includes an exception to the general rule, found in paragraph (4) of that subsection. According to paragraph (4), when the assets of an individual are placed in a certain type of trust (a “(d)(4)(A)” or “self-settled special needs” trust), those assets are not “countable” resources:

This subsection [regarding treating trust assets as countable assets of the individual] shall not apply to any of the following trusts:

(A) A trust containing the assets of an individual under age 65 who is disabled … and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.

On June 5, 1996, in a HCFA Memorandum entitled “Treating Disability Trusts under Transfer of Assets, Trust Estate Recovery, and Third Party Liability Rules,” HCFA confirmed to all state Medicaid directors that special needs trusts, including those established by a court on behalf of or at the behest of an individual, are covered by the Medicaid trust rules, including the provisions exempting a trust from the general rules that cause the trust to be considered as available resources. See also Waldman v. Candia, 317 N.J. Super. 464 (App. Div. 1999).

This exception to trust countability is also acknowledged in the Social Security Program Operations Manual System (“POMS”) Section SI 01120.203, Exceptions to Counting Trusts Established on or After 1/1/01, which states that “sections 1917(d)(4)(A) and (C) of the Social Security Act (the Act) (42 U.S.C. §1396(d)(4)(A) and (C)) set forth exceptions to the general rule of counting trusts as income and resources for the purposes of Medicaid [and SSI] eligibility.”

The federal law permitting assets to be placed in a self-settled special needs trust without affecting an individual’s Medicaid/SSI eligibility is echoed by our New Jersey state law and Medicaid regulations,N.J.S.A. 3B:11-36 et seq., and N.J.A.C. 10:71-4.11 (g)(1)(i-xviii).

Thus, according to both federal and state law, placing a disabled individual’s assets in a special needs trust is specifically recognized as a permissible method by which to protect the individual’s eligibility for SSI, Medicaid or other public benefits based on need.

B. Third Party Asset Transfers to a Special Needs Trust

According to POMS §SI 01120.200.D.2, “if an individual does not have the legal authority [1] to revoke or terminate the trust or [2] to direct the use of the trust assets for his/her own support and maintenance, the trust principal is not the individual’s resource for SSI purposes…. If a trust is irrevocable by its terms and under State law and cannot be used by an individual for support and maintenance (e.g., it contains a valid spendthrift clause⁴),…it is not a resource.”

II. TRANSFER OF INCOME STREAMS

A more complex issue arises when considering transferring an income stream into a special needs trust.

The most common types of income streams include alimony and child support payments; personal injury/structured settlements; pensions; annuities; and individual retirement accounts.

According to the Social Security POMS, as a general rule, “additions to trust principal made directly to the trust are not income to the grantor, trustee, or beneficiary.”⁵ In addition, a “legally assignablepayment…that is assigned to a trust, is income for SSI purposes unless the assignment is irrevocable…. If the assignment is revocable, the payment is income to the individual legally entitled to receive it.”⁶

According to the POMS, the following payments are not assignable by law and, therefore, may not be paid directly to a trust:

Temporary Assistance for Needy Families (“TANF”);
Railroad Retirement Board-administered pensions;
Veterans pensions and assistance;
Federal employee retirement payments (CSRS, FERS) administered by the Office of Personnel Management;
Social Security title II and SSI payments; and
Private pensions under the Employee Retirement Income Security Act (“ERISA”) (29 U.S.C.A. §1056(d)).⁷

In New Jersey, workers’ compensation benefits are similarly non-assignable.⁸

However, income that is legally assignable and is assigned to an irrevocable trust is not income, for SSI purposes.⁹ Thus, many types of streams of income, such as alimony and child support; annuities; individual retirement accounts; and personal injury/structured settlements¹⁰, may be assigned to an SNT.

Case Practice Example:
In a case I blogged about on my website,¹¹ I represent a retired firefighter who was approved for Police and Firemen’s Retirement System (“PFRS”) benefits. He has a severely disabled son who receives public benefits based upon need. In 2008, my client requested that PFRS approve a beneficiary designation, so that the benefits to which his son would be entitled upon my client’s death would be distributed to the testamentary SNT established under his will. After being denied this request, our appeal to the PFRS Board was unsuccessful; in fact, the Board declined to even address whether the beneficiary designation would be effective on my client’s death, claiming that addressing the issue would be an “advisory opinion,” because my client was still alive. Our subsequent appeal to the Appellate Division was also unsuccessful. However, our Petition for Certification to the Supreme Court of New Jersey was granted, the judgment of the Appellate Division was “summarily reversed,” and the matter was “remanded to the Board of Trustees of the [Police and Firemen’s Retirement System] to decide the case on the merits.” I am optimistic that, this time around, the PFRS will make the right decision and permit my client to change the beneficiary designation so that the benefits to which his severely disabled son would be entitled upon my client’s death can be distributed to the testamentary trust.

Some of the more common income streams are discussed in more detail below:

A. Alimony and Child Support

In a nation with already staggering divorce rates, it has been estimated that the divorce rate for families with disabled children is as high as 85%.¹²

In the context of divorce, alimony and child support payments can have unintended consequences on the public benefits of a disabled spouse, or on a divorcing couple’s disabled child.

Alimony

As set forth below, alimony payments may be irrevocably assigned to a self-settled special needs trust without affecting that spouse’s eligibility for public benefits.

For purposes of SSI, alimony or spousal support is generally categorized as unearned income. Consequently, after the $20 disregard, alimony or spousal support will reduce SSI benefits on a dollar-for-dollar basis.¹³

However, the POMS expressly permits the irrevocable assignment of alimony payments to a special needs trust:

A legally assignable payment…that is assigned to a trust, is income for SSI purposes unless the assignment is irrevocable. For example,…alimony payments paid directly to a trust as a result of a court order, are not income. If the assignment is revocable, the payment is income to the individual legally entitled to receive it.¹⁴

According to one practitioner,
It is important that the trust be “created” by the court and not just by agreement of the parties in order to meet the requirements of the law and avoid the risk that the Social Security Administration will find that the trust was created by the individual or the spouse [citing POMS §SI 01120.203B.f.]. If the alimony payments are irrevocably assigned to the trust, the payments are not counted as income for SSI purposes, POMS SI 01120.200G…. Support payments or alimony should not be placed in a third-party [special needs] trust. These payments belong to the beneficiary of the trust, therefore placement into a third-party trust would constitute a transfer of assets for Medicaid and SSI purposes and would result in the imposition of a penalty period.¹⁵

The issue of alimony paid to a special needs trust on behalf of a disabled divorcing spouse was addressed by our Appellate Division in J.P. v. DMAHS.¹⁶ In reaching its conclusion that alimony paid to a SNT pursuant to a divorce does not constitute income to the Medicaid recipient spouse,¹⁷ the J.P.court provided an analysis of the federal and state law governing the issue. It concluded that, although state regulations would ordinarily impose a penalty for the transfer of “assets” (including income) when the individual does not receive those assets because of a court order entered on his/her behalf, that penalty does not apply to assets transferred to a court-ordered SNT.

The J.P. court relied upon the State Medicaid Manual, HCFA Transmittal 64 §3259.7B1, which provides that, “[w]hen the right to income placed in the [SNT] actually belongs to the trust and not to the individual the income does not count under SSI rules as income received by the individual.” It rejected Medicaid’s assertion that a special needs trust can be used to shelter resources but not to shelter income, and concluded that “Medicaid’s attempt to distinguish between alimony and equitable distribution placed in the trust has no rational or legal basis.”

Child Support

SSI’s treatment of child support payments is outlined in POMS §SI 00830.420. According to that POMS section, child support payments made on behalf of an SSI child are unearned income to the child, with a one-third income disregard for an eligible child by an absent (non-custodial) parent. Current child support that is received for an adult child is income to the adult child, and is not subject to the one-third income disregard.¹⁹

However, the POMS recognizes an exception to this rule for the irrevocable assignment of child support payments to a special needs trust:

A legally assignable payment…that is assigned to a trust, is income for SSI purposes unless the assignment is irrevocable. For example, child support…payments paid directly to a trust as a result of a court order, are not income. If the assignment is revocable, the payment is income to the individual legally entitled to receive it.²⁰

A central issue involved in the assignment of child support payments is whether the special needs trust must be self-settled (with a payback provision) or may be third-party (with no payback provision). If characterized as “child support,” certain protections, such as enforcement of payments through the probation department, are available. However, as discussed in more detail infra, “child support” payments belong to the child. Because the child has a legal right to receive child support, many practitioners opine that the special needs trust that is created must be a self-settled trust, and payback provisions must be included.²¹ Indeed, the POMS section addressing self-settled special needs trusts includes the following example:

A disabled SSI recipient over age 18 receives child support which is assigned by court order directly into the trust. Since the child support is the SSI recipient’s income, the recipient is the grantor of the trust and the trust is a resource unless it meets an exception in SSI 01120.203 [the self-settled special needs trust exception]. If the trust meets an exception and is not a resource, the child support is income unless it is irrevocably assigned to the trust, per SI 01120.201J.1.d. In this example, the court ordered the child support to be paid directly into the trust, so we consider it to be irrevocably assigned to the trust.²²

However, some practitioners recommend that, if a divorcing couple agrees to forego protections such as the enforcement rights that come with payments of “child support,” the couple enter into a settlement that does not include “child support,” but instead obligates the parent to make payments to a third-party special needs trust on behalf of the disabled child, as part of a property settlement agreement. Although the parent’s obligation to make these payments would not be the subject of child support enforcement protections, the obligation can be enforced as a contract right under the property settlement agreement.

Other practitioners recommend voluntary payments of income by the parent to a third-party SNT, separate from and in addition to court-ordered child support.²³

Case Practice Example:
I was recently involved in a case in which a divorcing couple had an adult disabled child receiving SSI. The divorce attorneys had originally contemplated a property settlement agreement in which the husband would pay child support on behalf of the adult disabled child. However, this arrangement would have jeopardized the child’s eligibility for SSI. The wife was not concerned with losing the typical enforcement protections available for child support payments, and chose to enter into a property settlement agreement silent on the issue of “child support,” in which the husband would make monthly payments to an irrevocable third-party special needs trust of which the disabled child was the beneficiary.

Choosing between these alternatives requires an examination of various issues, including a parent’s legal duty of support; the emancipation of an adult disabled child; and the child’s receipt of public benefits. By way of example, if a parent has a legal duty to support a disabled child, even beyond the age of majority, then payments in lieu of child support paid to a third-party SNT would violate the parent’s duty of support; accordingly, the possibility exists that these payments to a third-party SNT would jeopardize that child’s eligibility for public benefits.

A discussion of the interplay between a parent’s child support obligation and a disabled child’s public benefits was addressed in the context of a comprehensive examination of autism and divorce by Lawrence R. Jones and David L. Holmes.²⁴ As the authors explain, a court generally calculates a child support obligation based upon the parents’ incomes, pursuant to the New Jersey Child Support Guidelines set forth in Appendix IX of the New Jersey Court Rules. However, a parent may request that the court disregard the Child Support Guidelines as inapplicable, where “good cause” is shown.

With regard to the issue of emancipation, a parent’s responsibility to support a disabled child after the age of majority is an issue of state law.²⁵ Although the laws of New Jersey do not fix an age at which legal emancipation of a child occurs, there is a statutory presumption that emancipation occurs at age 18.²⁶ That presumption, however, may be rebutted. Courts of New Jersey recognize that child support may continue beyond minority where, on reaching the age of majority, the child is disabled from supporting himself:

Children who are unable to care for themselves because of their minority are no less entitled to the court’s solicitude when they continue to suffer, after they have attained their majority, from a physical or mental disability which continues to render them incapable of self-support. Normal instincts of humanity and plain common sense would seem to dictate that in such cases the statutory obligation of the parent should not automatically terminate at age 21, but should continue until the need no longer exists.²⁷

Accordingly, until emancipation, a parent remains charged with the duty of support.²⁸

Notably, the right to child support is considered the right of the child, rather than the right of the parent, and is based upon an evaluation of the child’s needs.²⁹ In the unreported Proft decision, for example, the father of the disabled adult child sought an order emancipating the child, and granting reimbursement of past child support payments made, because of the child’s subsequent personal injury settlement. Although the case did not address the public benefits aspect of child support, the court’s observations have ramifications on this issue:

… we are mindful that [the father’s] support obligation…was established by consent. It was not calculated in accordance with the Child Support Guidelines, and may well have been measured by his ability to pay, rather than by the needs of [the child]. As a consequence, even if the [personal injury] settlement were found upon remand to be properly allocated to [child] support, an additional support obligation could remain, depending on the nature and extent of [the child’s] disability, its anticipated duration, and [the child’s] short- and long-term needs.³⁰

California practitioners have noted that California courts have not yet addressed whether the existence of an SNT for the child’s benefit would affect a parent’s duty of support, but that one California court allowed consideration of an adult disabled child’s independent income and assets in order to reduce the parent’s child support obligation.³¹ However, other states have held that an SNT for the benefit of a child has no impact on a parent’s duty of support.³²

How a child’s eligibility for public benefits (absent receipt of child support) affects a parent’s responsibility to provide child support to that child is a thorny issue. As one matrimonial law journal opines,

Because SSI is only meant to be supplemental and not substitutionary, a noncustodial parent’s child support obligation should not be impacted if a child receives SSI [in the disabled child’s name]. SSI benefits are “gratuitous contributions from the government” and do not reduce any obligation by either parent…. Along these same lines, a parent cannot refuse to pay child support with the reason that paying would cause the child’s public assistance to end. At least one [Colorado] court has refused that argument, stating that public assistance is paid to substitute the missing parent’s support to provide for a child’s needs. If a parent is no longer missing, it is the parent’s duty to provide for the child, and the substitutionary public assistance has no reason to continue.³³

Practitioners struggle with the competing issues of a parent’s duty of support, and what the child’s “needs” are when public benefits would otherwise provide for those needs. New Jersey courts have held that, in the case of an adult disabled child, “[t]he child’s’ own resources should first be applied to the cost of his care.”³⁴ However, in Monmouth County Division of Social Services v. C.R., 316 N.J. Super. 600 (Ch. Div. 1998), in connection with a DYFS placement of a disabled child, the parents entered into a voluntary agreement with DYFS to provide financial support based on the parents’ income and resources. When the child attained the age of 21, the father sought to be retroactively reimbursed for support payments he made to DYFS following the child’s 18th birthday, claiming that he was “no longer legally responsible for the cost of maintenance of [his son] incurred by the Division of Youth and Family Services.” The court denied the request, citing, inter alia, “the basic support obligation of every parent to his child, which transcends any temporary source used to help meet this obligation.” It concluded that the parent’s “limited, but voluntary, financial involvement in meeting his son’s needs is really the affirmation of what was always his fundamental duty, even in the presence of a concurrent role required or permitted of public authorities.”

According to Jones and Holmes, supra,
If the government pays benefits to or for a child (disability, Social Security, etc.), these payments may in some cases reduce a parent’s child support obligation, since the benefits reduce the parents’ costs of raising the child [citing New Jersey Child Support Guidelines, New Jersey Court Rules Appendix IX-A 10(c)]. Receipt of Social Security Disability benefits may reduce child support, while receipt of Supplemental Security Income (SSI) benefits may not reduce support, since SSI supplements parental income based on financial need.³⁵

However, these authors also opine that,
in a case where the [disabled] person is living with neither parent but in another environment such as a group home for developmentally disabled adults, there may be little or no daily out-of-pocket support expenses incurred by either parent, and thus little or no need at that specific time for child support.³⁶

Despite the substantial authority supporting payments of child support into a special needs trust, some practitioners have observed that families rarely seek to have a court order the irrevocable assignment of child support or alimony payments into a trust, “because of the complexity of [the] issue… and the lack of sophistication at the local Social Security office” with this approach:

In our experience, families generally handle the child support/emancipation question in one of two ways: They forego formal support at age 18 and get their child enrolled in all the benefit programs that he or she qualifies for, while making an informal arrangement for supplemental support, or they forego public benefits until age 22 when their child is out of school, and they continue child support payments until then.³⁷

B. Annuities

The Social Security POMS specifically provide for the assignment of an annuity payment to a special needs trust: an example provided in the POMS of a situation in which trust principal is not a resource is where “the claimant is a minor and the beneficiary of an irrevocable trust established with the child’s annuity payment by his father, who is his representative and the trustee of the trust,” and the claimant’s siblings are residuary beneficiaries. The POMS section addressing third-party special needs trust analyzes the situation as follows:

The trust principal is not a resource to the claimant. Under the general rule in SI 01120.200.D.2, the trust document provides that the trust is irrevocable. Although the claimant can be considered the grantor of the trust (because the actions of the father as payee are as an agent of the claimant), the trust is not revocable under the rule for grantor trusts in SI 01120.200.D.3 because the claimant is not the sole beneficiary.³⁸

Case Practice Example:
I recently had a case in which I represented a disabled man’s sister/agent under a power of attorney. The disabled brother was receiving monthly payments from an annuity, but wanted to apply for SSI. I successfully applied to have those monthly payments irrevocably assigned by the court to a self-settled special needs trust on his behalf. Before filing the application, I worked with the annuity company to ensure that there were no terms of the annuity contract that would cause the annuity company to object to the application.

C. IRAs

A third-party special needs trust may be funded with an IRA or other qualified retirement plan; however, for purposes of public benefits eligibility, naming an SNT as an IRA beneficiary may not be appropriate:

A special needs trust may qualify as a designated beneficiary. If the trust meets the designated beneficiary requirements, the beneficiaries of the trust, and not the trust itself, are treated as the designated beneficiary. This type of trust is commonly referred to as a “conduit trust”…in which the trustee has no power to accumulate retirement plan distributions in the trust. The trustee is required, by terms of the governing instrument, to pass all plan distributions out to the individual trust beneficiary or beneficiaries. Under the conduit trust approach, the beneficiary is in the same position as if he/she had been named directly — individually as beneficiary of the benefits — except that distributions must be made to satisfy required minimum distributions (RMD). A conduit trust may not be a workable option because it requires that all RMD are passed through to the beneficiary, and these distributions may disqualify the beneficiary from receiving means-tested public benefits.³⁹

¹ The terms “special needs trust” and “supplemental benefits trust” are employed by different commentators and practitioners to mean different things. For purposes of this article, I will use the term “special needs trust” to include first-party and third-party trusts and, where applicable, I will specify whether I am referring to a first- or third-party special needs trust.
² 42 U.S.C. §1396p(c)(2)(B)(iv); 42 U.S.C. §1382b(c)(1)(C)(ii).
³ 42 U.S.C. §1396p(d)(4)(a); State Medicaid Manual, HCFA Transmittal No. 64, §3259.7A; 42 U.S.C. §1382b(e)(5).
⁴ POMS §SI 01120.200.B.16 defines a Spendthrift Clause as one that “prohibits both involuntary and voluntary transfers of the beneficiary’s interest in the trust income or principal … [so that] the beneficiary’s creditors must wait until money is paid from the trust to the beneficiary before they can attempt to claim it to satisfy debts.”
⁵ POMS §SI 01120.200.G; §SI 01120.201.J.
⁶ Id.
⁷ POMS §SI 01120.201.J.1.c; §SI 01120.200.G.1.c.
⁸ J.C. v. DMAHS, No. A-5632-07T2, A-6297-07T2 (N.J. Super. Ct. App. Div. Feb. 8, 2010) (citing N.J.S.A. 34:15-29).
⁹ POMS §SI 01120.201.J.1.d.
¹⁰ Personal injury/structured settlements will be addressed separately by my Co-Presenter, Thomas D. Begley, III, Esq.
¹¹ The Frustrating Tale Of A Retired Firefighter Repeatedly Denied The Right To Plan His Estate To Benefit His Severely Disabled Child, www.vanarellilaw.com/blog/?p=6631.
¹² Hines, A. and Margolis, H., Divorce in Special Needs Planning, The ElderLaw Report, Volume Xxii, Number 5, December 2010.
¹³ Milender, F., Divorce and the Disabled Spouse, The ElderLaw Report, Volume XXII, Number 5, December 2010 (citing POMS §SI 00830.418).
¹⁴ POMS §SI 01120.200.G.1.d. (emphasis supplied).
¹⁵ Milender, F., Divorce and the Disabled Spouse, supra.
¹⁶ 392 N.J. Super. 295 (App. Div. 2007).
¹⁷ As noted in Mazart, G. and Spieldberg, R., A Public Benefits Conundrum: Matrimonial Settlements, New Jersey Lawyer Online, www.njlnews.com/articles/2007/10/27/in_re_magazine/f5-mazert.txt, the Medicaid recipient in J.P.was under age 65, so she was able to establish a self-settled special needs trust; however, if she had been over age 65, a pooled trust would have been an alternative.
¹⁸ POMS §SI 00830.420.B.1.
¹⁹ POMS §SI 00830.420.C.1.
²⁰ POMS §SI 01120.200.G.1.d. (emphasis supplied). Although, as set forth below, it appears that child support payments belong to the child and thus require the proper receptacle of child support payments to be a self-settled SNT, the POMS example regarding child support payments not being income when irrevocably assigned to a trust appears in §SI 01120.200, applicable to third-party SNTs, and not in SSI 01120.201, the section that is applicable to self-settled SNTs.
²¹ Mazart, G. and Spielberg, R., Trusts for the Benefit of Disabled Persons: Understanding the Differences Between Special Needs Trusts and Supplemental Benefits Trusts, New Jersey Lawyer Magazine, No. 256, February 2009. A California resource recommends carefully drafting the order irrevocably assigning the child support to the trust: the order should assign only payment of child support to the trust, leaving other factors, such as payment amount and the timing and enforcement of payments, open for later modification by the court. Harshman, S. and Schaller, G., Introduction to Planning for Persons with Disabilities, §4.16G.
²² POMS §SI 01120.201.C.2.b.
²³ Harshman, S. and Schaller, G., Introduction to Planning for Persons with Disabilities, §4.16G.
²⁴ Jones, J. and Holmes, D., Autism and Divorce: Guidelines for Family Court Practice, New Jersey Lawyer Magazine, No. 256 (Feb. 2009).
²⁵ Begley, Jr., T. and Jeffreys, J., Representing the Elderly Client, §12.07[C][2] (2010 Supplement)(Wolters Kluwer NY).
²⁶ Proft v. Proft, 2005 WL 3429503, 2005 N.J. Super. Unpubd LEXIS 139 (N.J. Super. A.D. Dec. 15, 2005) (citingN.J.S.A. 9:17B-3).
²⁷ Grotsky v. Grotsky, 58 N.J. 354 (1971) (quoting Kruvant v. Kruvant, 100 N.J. Super. 107 (App. Div. 1968)).
²⁸ Id.
²⁹ Proft v. Proft, supra (citing Pascale v. Pascale, 140 N.J. 583, 591 (1995)).
³⁰ Proft v. Proft, supra.
³¹ Harshman, S. and Schaller, G., Introduction to Planning for Persons with Disabilities, supra, at §4.16G.
³² Id.
³³ Copperwheat, D., Cutting Edge Issues in Family Law: Comment: Impact of a Child’s Income on Child Support Payments, 21 J. Am. Acad. Matrimonial Law 677 (2008).
³⁴ Kruvant v. Kruvant, 100 N.J. Super. 107, 118 (App. Div. 1968).
³⁵ Jones, J. and Holmes, D., Autism and Divorce: Guidelines for Family Court Practice, supra.
³⁶ Jones, J. and Holmes, D., Autism and Divorce: Guidelines for Family Court Practice, supra.
³⁷ Hines, A. and Margolis, H., Divorce in Special Needs Planning, supra.
³⁸ POMS §SI 01120.200.L.2.b.
³⁹ Begley, supra, §12A.06[E] at 12A-12 (2001-2 Supplement).

Donald D. Vanarelli, Esq., with offices in Westfield NJ, is a Certified Elder Law Attorney (by NAELA, accredited by the ABA), an Accredited Professional Mediator and an Accredited VA Attorney. Mr. Vanarelli was selected as a “Super Lawyer” in years 2007–2011 and is a founding member of the New Jersey Elder Mediation Center. Specialized practice areas include: probate law, estate planning,estate administration, estate litigation, guardianships, and special needs trusts.

For additional information regarding Special Needs Trusts and Supplemental Benefits Trusts, call us at 908-232-7400 or click here to contact us online.