It is not necessarily only one parent that could be ordered to pay child support for an adult disabled child in Texas. The Texas Family Code allows for you, your child’s other parent or both of you to pay support if he or she is unable to care for themselves due to a disability or impairment.
No matter who is responsible for paying the support, a judge would look to these factors when determining how much a child support award should be for a child over the age of 18. First, what needs does your child have both now and in the future? These needs would have to be directly related to the child's disability. What sort of care does your child need? Is the disability significant enough to demand around the clock care? What are the chances that the disability could improve to the point of no longer needing outside care? These are the considerations that a judge would need to pay for current and future needs of your child.
Next, do you or your ex-spouse pay for or will pay for care or supervision of your adult child? The other side of the coin would be whether or not one of you provides direct care for your child yourself. Either way, the costs will be different. Paying for an outside person to come in and care for your child allows you to go out into the world and earn an income. On the other hand, paying for someone to care for your child is more expensive (in the short and long terms) and may need a different amount of support to be paid as a result.
Financial resources of yourself and your ex-spouse will be examined as well. If you are the primary caretaker of your adult child but are wealthy or otherwise financially secure, likely, you do not need as much in the way of child support as a person without a high income would. Likewise, if you live in an area where social programs are available that assist in caring for your child is available that will be taken into account when determining an award of child support.
What support may be available through your local, state and federal governments for your child?
Health care costs go up steadily each year, it seems. As a part of that process, it will become more and more expensive for your child to be cared for if he or she has a disability. If either of you is on fixed or limited incomes then your dollar will have to be stretched wider and wider to account for this increase in costs. How, then, can you be expected to help your child live as well as possible when you lack the resources to do so?
One way is to eligible to receive government benefits associated with health care. Our federal and state governments commit billions of dollars each year to helping lower-income people receive health care when they are not able to provide it for themselves. If you lack economic resources sufficient to pay for health insurance on your own, government programs like Medicaid exist to help you afford coverage for health insurance.
The State of Texas and the federal government share oversight and management of Medicaid. Texas operates its own Medicaid system but does so in conformity with whatever norms are developed on the federal level. If you moved to Texas from another state, you may have found that you were no longer eligible for Medicaid. This is because each state in the country has different requirements for eligibility when it comes to Medicaid.
Additionally, the Social Security Administration offers a program known as Supplemental Security Income (SSI) that guarantees a minimum income for persons with disabilities as long as they meet the definition of disabled that the SSA has come up with. SSI is not supposed to be a lifelong method of building wealth. It is more or less the lowest amount of money that could be used by a person to provide for their daily needs.
There are also significant financial limitations to this program that cause many applicants to become ineligible, as a result. If you have another source of income coming into your home, the amount that you would receive in SSI would be reduced by that amount. This means that even if you receive no money from family members, but you are living rent-free in-home provided by a relative, that this will also count against the amount of money that you would stand to receive from the government for SSI benefits.
SSI recipients in Texas are also immediately eligible to receive Medicaid coverage. If your adult disabled child has the need to go to the hospital frequently or sees a specialist for impairment of theirs, Medicaid can be of great assistance to you and your family since these costs are largely covered by Medicaid. Nursing home care, prescription medicines, and other health costs can be offset if Medicaid coverage and SSI are made available to your adult disabled child.
Who is eligible to receive SSI benefits?
It is a fairly narrow group of people that are eligible to receive SSI benefits. First, you must be a person who is over the age of 65, blind or disabled. As we have already discussed, there are income and asset limits that will be considered before determining eligibility to receive SSI benefits. Let's go over the income limits that the Social Security Administration would consider before we go any further.
If a person earns more than about $700 per month in income ($1,200) for two persons then they would not be eligible for SSI benefits. Whatever your income is (or that of your child is) it would be subtracted from the $700 maximum benefit to arrive at the dollar amount that you would stand to receive every month.
For many people, it is not the dollar amount paid in benefits each month that is the most attractive feature of SSI. Medicaid is the biggest part of the equation for many people. If you cannot afford insurance either for yourself or your adult disabled child, then your child's receiving SSI and Medicaid would likely be the best-case scenario for you and your family. It is not just income from jobs that counts towards this analysis. The value of investments, real estate, and pension plans will also be assessed. The resources available to you and/or your child cannot total more than $2,000 to be eligible to receive SSI benefits.
However, one asset that will not be considered is the value of your home and the land on which it is located. Household items and a vehicle owned by you are not counted either. SSI is paid every month and is thus seen as a substitute (or at least a partial substitute) for monthly income from a job). Again, I think the greatest benefit to you and your family that SSI eligibility could provide is the ability to get on Medicaid for health care expense payments.
Does the receipt of child support payments impact eligibility to receive SSI?
You need to be aware that if you are going through a divorce there are potentially significant financial impacts that could be upcoming for you and your adult disabled child. This is especially true if you or your child are receiving the type of government health insurance benefits that we have spent a great deal of time discussing today. You need to be aware of the consequences of divorce on eligibility status in these important governmental programs.
Before you and your spouse finalize any division of property agreements in conjunction with your divorce you need to consider the impact on your and your child's current and future eligibility to receive SSI and/or Medicaid benefits. For example, if you have a property that is now going to be sold for cash and deposited into your savings account that could affect eligibility. Previously you may have been eligible to receive benefits, but if you were to be awarded a retirement account that could change the equation.
Dividing up and transferring retirement plans in a Texas divorce
You need to be aware that the government benefits that you and your disabled child receive can be impacted in a divorce. Additionally, you may be in line to pay a great amount of money in taxes when you legally become the owner of those retirement plans through a Qualified Domestic Relations Order (QDRO). You should consult with your divorce attorney on whether or not a Special Needs Trust would need to house the funds from one of these retirement accounts so that the funds to do not count against your eligibility for one of these important programs.
Child support payments for an adult disabled child can either continue in an official capacity after your child reaches adulthood, or can be made as an “unofficial” child support payment made from your ex-spouse to you. Child support payments can reduce or eliminate your child’s ability to receive SSI, however. This means that Medicaid can be taken away as well and with it the ability to receive the care that your child needs regularly.
Even if you are able to be paid some amount of child support on a monthly basis for your adult disabled child, it can be frustrating to learn that you will possibly lose out on other benefits that your child relies upon just as much in order to receive the care that he or she needs to live as fruitful a life as possible. Be sure to talk to your attorney about these type of issues before agreeing to anything in mediation.
How does child support payments for a disabled child impact current and future eligibility for SSI/Medicaid?
Any child support payments that you receive from your ex-spouse that goes towards the support of your child will not be counted as income for you. Child support payments within the context of SSI count as income for your child and will continue to do so as long as you and your child live in the same home. This income is unearned.
If your ex-spouse makes child support payments directly to you or to your disabled child who is under the age of 18, 1/3 of that money is excluded as income that is countable for SSI purposes. Let's throw out an example here so that I can better illustrate this point that I am trying to ma
Suppose that your ex-husband pays child support that totals $200 per month to you for your 11-year-old daughter. The first 1/3 of this support payment would not count as earned income. Also, another $20 per month would be removed from earned income consideration. So, the final tally would be $147.66 would be counted as unearned income. That number would be subtracted from the maximum amount of monthly SSI benefits to determine how much you could receive in SSI benefits. That amount plus the $200 would be your monthly take-in as far as income is concerned. For a child who is over the age of 18, all of the child support minus $20 would go as a reduction against SSI.
More on the ins and outs of child support payments for a disabled child will be detailed in tomorrow’s blog post
I hope that this information has been helpful to you and your family. Much of it is difficult to follow and sort of tedious in the way that many government programs can be. However, you must be aware of your rights and what you stand to receive (and lose) in a divorce case.
If you have any questions about the material that we covered today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to learn more about the law, your case and to receive direct feedback about your particular circumstances from one of our attorneys.