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Divorce Court Orders Support For Adult Child With Disability

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Laura F. is a 28-year-old autistic woman. She has always lived with her parents, and they have provided for her care. In the past decade she has worked several part-time jobs at sheltered workshops, but she has never held a full-time job, never even earned minimum wage, and never been able to work without a job coach. Now her parents are getting divorced, and questions arise about who will be responsible to support her.

Joanne F. and Eugene F., Laura’s parents, have been married for 31 years, and now live in California. They have substantial wealth and have lived an affluent lifestyle. Joanne has now filed for divorce and asked the courts to award her both child support and spousal support payments. She asked for the support payments to start immediately, and to continue while the divorce itself is resolved.

The divorce court heard testimony from both parents, from an accountant and from Laura’s psychologist. At the end of the hearing Eugene was ordered to pay $3,750 per month in support for Laura, and an additional $3,070 to Joanne as spousal support.

California’s statutes make provisions for child support awards for adult children with disabilities. The law allows an award of support if the child “is incapacitated from earning a living and without sufficient means” to provide for his or her own support.

The California Court of Appeals ruled that the law does not require someone in Laura’s position to be completely destitute and living on the streets before qualifying for a support award. The fact that she had worked for several brief periods in sheltered workshops did not show that she could support herself, and the child support award was upheld. The spousal support award was also approved, with the court noting that both assessments should be based on Eugene’s ability to earn a good living rather than just his actual employment income. Marriage of Falk, December 15, 2003.

Arizona’s law governing support of adult disabled children is similar, but not identical. It is likely that Laura F. would have been awarded at least some support if the case had been brought in Arizona.

Under our state statute the divorce court may order support payments for a mentally or physically disabled child to continue past the age of majority. The court may, as in Laura F.’s case in California, order payments to begin even if the child has already reached the age of majority. As was true in California, the Arizona courts will consider the standard of living the child would have had if the marriage was not being dissolved.

Just one day after Elder Law Issues wrote about the Laura F. case, the Maryland Court of Special Appeals released its opinion in a similar case involving court-ordered support for an adult child with disabilities. Kelly M. is 23 years old, and has been identified as “mildly mentally retarded.” According to earlier court testimony, she functions at about a 4th or 5th grade level, and she has worked part-time at the Department of Veterans Affairs, earning about $400 every two weeks.

Kelly M.’s mother (Bonnie) and father (Daniel) divorced when she was two years old, and her father was ordered to pay child support at the time of the divorce. When Kelly turned 18, Bonnie requested that the child support order be extended. Over Daniel’s objection he was ordered to pay $634 each month in support for Kelly.

A few months later Bonnie sought to increase the child support figure, arguing that she was no longer able to contribute to Kelly’s support because she had become disabled herself. Bonnie also noted that Daniel could better afford to support her–his income was then in excess of $60,000 per year.

In return, Daniel argued that the child support should be ended altogether. He pointed out that in the intervening time, Kelly had obtained full-time employment with the Department of Veteran’s Affairs, and her income had risen to $16,600 per year.

Although Kelly’s income had increased, she had lost her eligibility for Supplemental Security Income (SSI) and Medicaid coverage for her medical needs. Based on the totality of those circumstances the trial judge, ruling in 2000, determined that Daniel should still have to pay child support, but at the much lower figure of $100 per month.

Both Bonnie and Daniel appealed. Bonnie argued that the child support should have remained at the $634 figure or even increased, according to Maryland child support tables, to $681 per month. Daniel argued that he should not have to pay any child support, because Maryland law imposes an obligation of support for adult children only if they are “destitute.” Kelly’s full-time employment, argued Daniel, made it impossible to call her destitute. The result of that appeal was that Daniel was ordered to pay support at the rate calculated by the child support tables, as if Kelly was still a minor child. His support order was increased to $702 per month beginning in 2002.

Almost immediately, Daniel once again sought review of the child support award. In the third trip through the lower court process, his child support was reduced to $150 per month. This was based, according to the trial judge, on the notion that Kelly’s support should be based on what would be reasonably necessary to supplement her inadequate income, not based on the child support guidelines used by Maryland for minor children.

The Maryland Court of Special Appeals considered how to set support for adult children with disabilities for a second time in Kelly’s case. Its ruling: the child support guidelines should be the starting point for setting the amount of parental support. The case was returned to the trial court for another calculation of the amount to be awarded in support, with the clear instruction to reduce the level of support from the guideline amount only if the facts warranted deviation from that figure. The final outcome is not yet known, but it is likely that Daniel will be ordered to pay substantially more than the current $150 per month. Corby v. McCarthy, December 30, 2003.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.