Post-Divorce Financial Support Needs and Guardianship Issues for Your Disabled Child

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How Can I Ensure My Disabled Child Receives Necessary Financial Support As An Adult?

When a child reaches age 18, or the age of majority, court orders regarding parenting time, child support, guardianship, etc. cease. Because cutting off support may not be in the best interests of a non-minor child with a disability after he or she turns 18, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) gives judges the authority to award money out of the property and income of either or both parents for the support of a child who is not otherwise emancipated. The money awarded may be paid to either parent, a trust created by the parents for the needs of the child, or irrevocably to a special needs trust established by the parents pursuant to Section 15.1 of the Trusts and Trustees Act.  

Borrowing from the federal definition of disability under the Americans With Disabilities Act, Section 513.5 of the IMDMA defines a disabled individual as an “individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment.”

When deciding whether to order continued financial support for disabled non-minors from one or both parents, Illinois Judges consider the following factors:

  • Present and future financial resources of both parents including retirement savings;

  • What the child’s standard of living would have been had the parents remained married;

  • The child’s financial resources including current available assets and earning potential;

  • Any other financial resources provided to or for the child such as Social Security income and home-based supports provided pursuant to the Home-Based Support Services Law for Mentally Disabled Adults.

Parents who enter into divorce proceedings should consider the issues of care and support for their disabled child and whether a plan to address those issues should be included in the marital settlement agreement.

Furthermore, even when a disabled adult resides with one or both parents, legal guardianship must be established through the court. To obtain legal guardianship in Illinois the individual must be an 18 years old legal US resident a legal resident who is deemed by the court as being “of sound mind.” Parents may wish to petition for co-guardianship of their disabled non-minor if they can agree on major life decisions for the child. If co-guardianship has already been established, the dissolution of the marriage will not affect the guardianship.

If you have questions about guardianship or establishing support plans for your disabled child as part of the divorce process, please contact Arlington Heights divorce attorney David Saxe of SAXE LAW LLC at 224.800.1351 or to schedule a consultation.