How Special Needs Affects Child Support in Illinois

Updated on September 5, 2022
Updated: August 25, 2022

Child support payments are one of the most important parts of any divorced parent's budget. These payments typically end when the child turns 18 years old and graduates from high school or goes to university. According to the law, the child has reached an age where they can support themself financially. But some children need financial support beyond their childhood. If your child has special needs, you may be able to extend child support into adulthood. If you need any help with your case our child custody attorneys are here to help.

What Qualifies for Extended Child Support in Illinois?

In Illinois, family courts mandated child support last until the minor child turns eighteen years old when they become an adult in the eyes of the law. If the child graduates high school after they turn eighteen, child support is then extended until they turn nineteen. In the state of Illinois, child support can be extended past the age of legal adulthood in the event that the child is severely disabled.

This includes mental impairment, physical disability or physical impairment, and intellectual disability. This obligation should be fulfilled until the disabled person is able to overcome their disability. The primary parent of disabled adult children is able to petition for continued child support from the non-custodial parent if the non-minor child has not become emancipated, or if the disability did not develop after the child is deemed ineligible for child support.

Factors the Court Will Consider

The court will take the financial resources of the parents of the disabled children into account, as well as the financial resources of the disabled adult children. Finances may come from the estate of a deceased parent, as well. The judge may order one or both of the parents to support the adult children using their income or property.

Different factors are taken into account to determine if financial assistance is necessary, including but not limited to the standard of living the adult disabled individual would likely experience if they had non-divorced parents, the income, property, other financial circumstances involving the parents, and any financial resources possessed by a non-minor disabled child. This may also include government benefits such as social security income.

Courts will also take a special needs trust into account, if applicable. A special needs trust (SNT) is an estate planning tool that allows parents of disabled individuals to receive government assistance while still retaining their right to funds to supplement their benefits. This allows the ability to increase their quality of life and covers extra expenses that may arise.

An SNT can be established for individuals with physical disabilities, mental disabilities, and mental illnesses that become debilitating before the 18th birthday of the disabled individual. There are three different types of SNTs. They all function the same during the beneficiary's life but are different regarding who creates the trust, who is designated as the trustee, and what happens to the remainder of the funds in the trust after the beneficiary passes away.

Related: How to Modify Child Support in Illinois

What Counts as a Disability for the Purposes of NonMinor Child Support?

Illinois defines a disability as a cognitive or physical impairment that significantly and severely limits major life activity. Physical disabilities include but are not limited to, spina bifida and cerebral palsy, Down Syndrome, autism spectrum disorder, schizophrenia, and bipolar disorder may meet the criteria for non-minor child support obligations for cognitive disabilities. 

a woman meeting with a special needs child

What Determines Disabled Adult Child Support Payments?

Child support for healthy and otherwise fully abled children is calculated using the Income Shares Model. This method considers the net income of both parents to determine a child support payment that is reasonable, given finances and circumstances regarding the needs of the child. Disabled adult child support is calculated using a different method.

The court will consider individual circumstances regarding the parents and the adult child in order to reach the amount paid for child support. Parent's income and what the standard of living for the child would look like in the event the parents weren't divorced are considered, as well as Social Security Disability Income and any financial resources the adult child has access to are used to determine the amount of non-minor child support payments awarded, and the custodial and non-custodial parents are designated.

Who Do the Support Payments Go To?

Courts take a special needs trust into account, if applicable. A special needs trust is an estate planning tool that allows parents of disabled individuals to receive government assistance while still retaining their right to funds to supplement their benefits. This allows the ability to increase their quality of life and covers extra expenses that may arise.

An SNT can be established for individuals with physical disabilities, mental disabilities, and mental illnesses that become debilitating before the 18th birthday of the disabled individual. There are three different types of SNTs. They all function the same during the beneficiary's life but are different regarding who creates the trust, who is designated as the trustee, and what happens to the remainder of the funds in the trust after the beneficiary passes away.

A self-settled special needs trust is for a disabled individual under the age of sixty-five years old is established by a parent or legal guardian, and is funded by assets belonging to the disabled person or what that individual is entitled to. After the death of the beneficiary, any trust assets remaining have to be paid back to the state for Medicaid received and are then distributed by the trust settlor.

A third-party SNT is for a disabled individual of any age, is established by someone other than the person with the disability, and trusts assets are funded by the settlor of the trust. When the disabled beneficiary passes away, the funds are then received by the settler and are not distributed back to the state.

A pooled trust is for a disabled individual of any age, similar to a third-party trust. Trust assets are funded by the disabled party, created by a parent or legal guardian, and the disabled person is able to receive these assets at any time. The trustee, however, must be a non-profit organization. The beneficiary has an individual account, but the funds are pooled for investments.

Learn More: How to Ensure Child Support is Being Spent Properly

 Need Help With Child Support?

If you're a divorced parent of a special needs kid nearing adulthood, it's wise to talk to an experienced Illinois family law lawyer about pursuing non-minor spousal maintenance for yourself so that your special needs kid gets the financial help he/she needs. You can call our firm at (708) 232-0017 or through our contact form to schedule a free consultation and discuss any concerns or issues you may have with child support.

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