SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

J.B. v. W.B. (A-111-11) (069972)

Argued March 11, 2013 -- Decided August 20, 2013

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers for the first time the role of a special needs trust for the benefit of an 

adult, unemancipated, disabled child and under what circumstances a child support obligation under an existing 

negotiated agreement may be modified to allow for the creation of a special needs trust.

Plaintiff J.B. and defendant W.B. were married in 1985 and have two children. A.B., who was born in 

1988, is autistic. J.B. and W.B. divorced on October 10, 2002, and entered into a comprehensive post-settlement 

agreement (PSA) which addressed child support obligations but deferred issues regarding post-secondary school 

education. The parties recognized that A.B. likely would never be emancipated, and J.B. agreed to continue paying 

his expenses, including medical, psychological, and special education costs. While establishing life insurance terms, 

the parties contemplated creation of a special needs trust to protect the proceeds A.B. eventually would receive. 

In 2009, A.B., who was twenty-one, began attending a post-secondary school in Connecticut for persons 

with special needs. Later that year, J.B. moved to direct his child support payments for A.B. into a special needs 

trust designed to fund A.B.’s educational and living expenses. J.B. asserted that his salary had decreased since 

creation of the PSA, the parties should prepare for the possibility of his untimely death, and W.B. should not receive 

A.B.’s support payments now that A.B. resides at school. He further asserted that A.B. would be ineligible for 

certain government benefits if the support payments were not paid into a special needs trust. The trial court denied 

J.B.’s motion, finding that he failed to show changed circumstances warranting relief from the PSA. 

J.B. appealed, and the Appellate Division affirmed. The panel noted that the PSA contemplated many of 

the hypothetical situations posed in J.B.’s modification request. Moreover, both parties understood that A.B. likely 

never would be emancipated and J.B.’s obligations to him would remain throughout his life. J.B. also did not 

establish with certainty that a special needs trust would render A.B. eligible for any government benefits. Rather, 

the panel saw J.B.’s motion as nothing more than a self-serving effort to revise the PSA in a manner favorable to 

him. Finally, because A.B. was not a party and there were no issues involving parenting time or custody, the panel 

rejected J.B.’s argument that the trial court should have appointed a guardian ad litem. The Court granted J.B.’s 

petition for certification. 210 N.J. 217 (2012). 

HELD: A parent seeking to modify a negotiated agreement for the support of a disabled child through the 

establishment of a special needs trust must present a specific plan and demonstrate how the proposed trust will 

benefit the disabled child. When a disabled child is the subject of a proposed special needs trust, it is within the trial 

court’s discretion to appoint a guardian ad litem.

1. Special needs trusts allow disabled individuals to maintain eligibility for needs-based government benefits, a use 

that was authorized by Congress under the federal Omnibus Budget Reconciliation Act of 1993 and in New Jersey 

by N.J.S.A. 3B:11-37(b). Assets placed in a special needs trust by disabled individuals, or persons acting on their 

behalf, are not considered “available assets” for purposes of determining Supplemental Security Income (SSI) and 

Medicaid eligibility. Several requirements must be met in order for trust assets to be excluded from the disabled 

person’s income, including that the assets will supplement, not supplant, government benefits. In New Jersey, child 

support paid to a parent is considered an asset of the child and will disqualify the child from receiving government 

benefits. In light of the protections afforded by a special needs trust, it can be an effective tool in planning for the 

future of a disabled child, although parents may choose to fund their child’s future directly in order to avoid the 

limitations placed on trust funds and eliminate governmental intrusion. (pp. 15-21) 
2

2. Decisions regarding the modification of child support are reviewed for abuse of discretion. PSAs are enforced 

according to the parties’ original intent, and should not be modified by a trial court absent fraud, unconscionability, 

or overreaching during negotiations of the PSA. However, in the interest of ensuring fairness in the dissolution of 

marriages, courts retain the equitable authority to modify privately reached child support agreements. A party to a 

comprehensive negotiated PSA who is seeking to modify a support obligation must meet the threshold standard of 

changed circumstances. Changed circumstances are not limited to events unknown at the time of the agreement, and 

include changes in the needs of the child or the income of a parent. In crafting agreements terminating a marriage, 

divorcing parents are encouraged to anticipate the needs of their children beyond the present circumstances, 

although even the most thoughtful parents may not anticipate every future event. Therefore, even when a negotiated 

plan is in place, proposed modifications that may be more advantageous to the child should not be dismissed out of 

hand. The threshold changed circumstances standard assumes that the parties anticipated the event precipitating the 

application for modification of the PSA. However, although modification may be unfair if the PSA addresses the 

changed circumstance, the standard will not bar consideration of the motion for modification where resolution of an 

acknowledged issue was deferred. In such situations, the guiding principle is the best interests of the child. 

Redirecting a child support obligation from a parent to a special needs trust should not be considered exceptional or 

extraordinary relief if the plan is in the child’s best interests. (pp. 21-27)

3. Here, the original PSA deferred the issue of post-secondary education, as well as the question of establishing a 

special needs trust. Because J.B. did not commit to fully fund A.B.’s post-secondary education or all future 

financial needs, his application to establish a special needs trust should have been evaluated in accordance with the 

best interests of the child standard. However, J.B.’s application presented little more than a concept, preventing the 

trial court from reaching an informed decision. Although the record suggests that A.B.’s long-term needs would be 

better met if he were eligible for government programs, it sheds little light on the fundamental question of whether 

the current support funds are sufficient to meet those needs. A parent seeking to modify a negotiated agreement for 

the support of a disabled child must present a specific plan and demonstrate how a proposed trust will benefit the 

disabled child. At a minimum, the trial court must have a complete understanding of the disabled child’s current 

needs, the cost to support those needs, and any available funding resources. When a proposed plan relies on access 

to government benefits, it must address eligibility rules, the timespan for attaining eligibility, the length of time 

before benefits are available once the child is eligible, and the means of defraying current costs without 

compromising the child’s eligibility. The plan also must designate a trustee and address the terms and conditions for 

disbursement of the corpus of the trust. Because J.B.’s proposed plan meets none of these requirements, the 

Appellate Division’s affirmance of the order denying his motion was proper. (pp. 27-29)

4. No New Jersey rule or statute addresses the question of whether a guardian ad litem should be appointed for a 

dependent, disabled child who is the subject of a proposed special needs trust. The role of a guardian is to assist the 

court in determining the best interests of a minor or incompetent individual, and the decision to appoint a guardian is 

within the trial court’s discretion. When a proposed modification may fundamentally affect a disabled child’s 

future, the court should not hesitate to appoint a guardian, and also should seriously consider doing so when one 

parent resists the other’s application to establish a trust. Here, the court did not abuse its discretion by declining to 

appoint a guardian since the proposed plan was entirely speculative and lacked the detail required for an informed 

decision as to whether it was in A.B.’s best interests. In the event either parent presents a plan that permits an 

informed decision, the court should consider appointment of a guardian ad litem. (pp. 29-33)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS and PATTERSON; and 

JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion. 
SUPREME COURT OF NEW JERSEY

A-111 September Term 2011

069972

J.B.,

Plaintiff-Appellant,

v.

W.B.,

Defendant-Respondent.

Argued March 11, 2013 – Decided August 20, 2013

On certification to the Superior Court, 

Appellate Division.

Bonnie C. Frost argued the cause for 

appellant (Einhorn, Harris, Ascher, 

Barbarito & Frost, attorneys; Ms. Frost and 

Christopher J. Roman, on the briefs).

Paul A. Rowe argued the cause for respondent 

(Greenbaum, Rowe, Smith, and Davis, 

attorneys; Mr. Rowe and Lisa B. DiPasqua, on 

the briefs).

Mary M. McManus-Smith argued the cause for 

amicus curiae Legal Services of New Jersey 

(Melville D. Miller, Jr., President,

attorney; Ms. McManus-Smith, Mr. Miller, and

JoAnne T. Mantz, on the brief).

JUDGE CUFF (temporarily assigned) delivered the opinion of 

the Court.

Plaintiff and defendant in this matter are divorced parents 

of an autistic son who has special needs. Both acknowledged 

that he likely would never be emancipated. At the time of their 
2

divorce, the parents negotiated a property settlement agreement

(PSA) that deferred some issues about their son for a later 

date. Several years later when their son enrolled in an out-ofstate post-secondary school, the father filed a motion to 

establish financial responsibility for their son’s education and 

to establish a special needs trust. Concluding that the PSA 

addressed the support issues before the trial court and that the 

father had not demonstrated changed circumstances to warrant a 

modification of his support obligation, the trial court denied 

the motion. The trial court also observed that the proposed 

trust plan lacked sufficient detail to permit an informed 

decision about whether such a trust would be in the best 

interests of the child. The Appellate Division agreed and 

affirmed.

This case presents our first opportunity to consider the 

role of a special needs trust for the benefit of an adult, 

unemancipated, disabled child. Although we acknowledge that any 

application to modify a support obligation must satisfy the 

threshold requirement of changed circumstances if the PSA fully 

addressed the issue, maturation of a child and his or her

changing needs may satisfy the changed circumstances standard. 

Moreover, when the parties have deferred future financial 

arrangements to a later date, the applicant need not demonstrate 

changed circumstances to permit consideration of the merits of 
3

the application. In all instances, the best interests of the 

child is the guiding principle. 

In this case, the parties deferred certain issues regarding 

future support of their disabled son, and the father submitted 

an application to modify the PSA and address the deferred 

issues. The application to establish a special needs trust, 

however, did not contain sufficient information to permit a 

Family Part judge to determine whether a trust funded by the 

father and used to supplement certain government benefits better 

met the son’s current and future needs than the arrangement 

adopted initially in the PSA. Accordingly, we affirm the

judgment of the Appellate Division denying the father’s motion 

to modify his support obligation and to create a special needs 

trust. We also set forth non-exhaustive guidelines for 

consideration by the Family Part of an application to establish 

such trusts. 

I.

Plaintiff J.B. and defendant W.B. married on October 19, 

1985. Two children were born of the marriage: A.B. on March 

11, 1988, and M.B. on July 30, 1991. A.B. is autistic. 

Plaintiff and defendant divorced on October 10, 2002. 

After two years of litigation, the parties entered into a

comprehensive PSA, which addressed most issues relating to the 

divorce, including child support obligations, but deferred other 
4

issues, such as the parties’ respective financial obligations

for post-secondary school education. The parties agreed to the 

following child support terms:

[T]he Plaintiff shall pay to the Defendant 

the sum of $4,166.66 per child ($50,000 per 

year, per child) as and for child support. 

The payments shall be made by the Plaintiff 

by way of automatic deposit into the 

Defendant’s bank account.

Further, plaintiff agreed that his child support obligations for 

M.B. would continue until M.B.’s emancipation.1 In regard to 

A.B., however, the parties 

recognize[d] that [A.B.] is autistic, has 

special needs, and probably will never be 

emancipated. Both parties are committed to 

a course of action which preserves, promotes 

and protects [A.B.’s] best interest. The 

Plaintiff has paid and shall continue to pay 

for [A.B.’s] unreimbursed and uncovered 

medical, dental, hospital, surgical, 

psychiatric, psychological, special 

education, and other similar expenses which 

are reasonable and appropriate for [A.B.] 

The parties agreed that both M.B. and A.B. should “attend 

and accomplish the highest level of schooling/education possible 

for that child.” The parties, however, did not make specific 

arrangements in the PSA for the payment of each child’s posthigh school education. The parties agreed that, “[i]f the 

 

1 Pursuant to the PSA, if M.B. took “[p]ermanent residence away 

from the residence of both custodial parents, . . . not 

includ[ing] residence while away at college,” he would be 

considered “emancipated” for purposes of plaintiff’s child 

support payments.
5

parties are unable to agree as to the payment of [post-high 

school] educational costs and expenses, either will have the 

right to apply to the [c]ourt for appropriate relief.”

Plaintiff also agreed to continue A.B.’s medical insurance 

and to maintain life insurance policies naming the children as 

beneficiaries. Plaintiff agreed to maintain a $1.5 million life 

insurance policy, which later increased to $2.5 million. In 

establishing life insurance terms, the parties also contemplated 

the creation of a special needs trust, agreeing that, “[i]f the 

plaintiff elects to establish a life insurance trust to fulfill 

his life insurance obligations[,] . . . [t]he parties shall 

confer and agree as to the appropriate Trust language which will 

insulate the proceeds for the protection of the parties’ son, 

[A.B.], such as by creating a ‘Special Needs trust.’” 

On October 12, 2005, a Family Part judge entered a consent 

order modifying the parties’ judgment of divorce to incorporate 

the written PSA. From 2005 until 2009, the parties followed the 

terms of the PSA, and plaintiff paid his support payments 

directly to defendant.

In 2009, A.B., at the age of twenty-one, finished his 

education at a state-funded, special needs school, N.J.S.A.

18A:46-6, -13, and began attending a school in Connecticut for 

persons with special needs. A.B.’s enrollment in the out-ofstate program gave rise to the current litigation. 
6

II.

On November 20, 2009, plaintiff filed a notice of motion in 

the Superior Court, Family Part, seeking to direct his child 

support payments for A.B. into a special needs trust. 

Specifically, he requested the court: (1) “[e]stablish[] a 

Special Needs Trust to fund the educational and living expenses 

of [A.B.] at [the Connecticut school]”; (2) appoint a parent 

coordinator to assist in establishing the trust; (3) compel 

defendant to cooperate in the creation of the trust; (4) split 

the cost of the parent coordinator equally with defendant; (5) 

“eliminate[] any direct child support obligation to Defendant 

for the benefit of [A.B.], retroactive to the filing date of the 

application, based upon the recent enrollment of [A.B.] in a 

full-time residential facility”; (6) determine the financial 

contributions of the parties towards A.B.’s educational expenses 

on a proportional basis; (7) modify the PSA to decrease the 

amount of life insurance coverage plaintiff is required to 

maintain and compel defendant to maintain life insurance on her 

life for A.B.; (8) compel defendant to pay for counsel fees; and 

(9) provide other relief.

In his certification supporting the motion, plaintiff

related that he was no longer an owner of his agency and no 

longer earned the same salary as he earned at the time of the 

divorce. He also suggested the parties should prepare for the 
7

possibility of his untimely death. Plaintiff also related that 

A.B. now resides at a school and, therefore, child support 

payments should not be made directly to defendant. Plaintiff 

further asserted that A.B. is not financially prepared for “a 

time when [plaintiff is] earning less income and ha[s] fewer 

available resources.” Finally, plaintiff asserted that A.B. 

will be ineligible for certain governmental benefits, including 

Supplemental Security Income (SSI) and Medicaid, if the child 

support payments are not paid into a special needs trust. 

Plaintiff stated that A.B. “may be eligible for certain 

government benefits programs now and in the future.” Plaintiff 

submitted a letter from an attorney with whom both parents 

consulted that outlined the purpose of a special needs trust and 

the government benefits and programs in which A.B. could

participate. 

In her response to plaintiff’s motion and in support of her 

cross-motion to determine the parental financial obligation for 

A.B. and M.B., who was applying for college admission at that 

time, defendant informed the court she did not object to the 

formation of a special needs trust and, in fact, had already 

attempted to form one with funds A.B. received from his maternal 

grandfather. She did, however, object to the termination of 

direct payment of child support to her before A.B. became 

eligible for government benefits and programs. 
8

The trial court denied plaintiff’s motion to establish a 

special needs trust, finding plaintiff failed to show changed 

circumstances warranting relief from the terms of the PSA. The 

court found “[t]he parties absolutely knew that [A.B.] was not 

going to be emancipated” and, therefore, the parties 

contemplated that plaintiff would always pay at least $50,000 in 

child support for A.B. The court also found plaintiff had a 

life insurance policy in place that would benefit A.B. in the 

case of the “unfortunate demise” of plaintiff. The trial court 

emphasized that the parties negotiated the inclusion of life 

insurance at “arms length.” 

Plaintiff appealed the trial court’s denial of his motion 

to redirect his support obligation into a special needs trust. 

Plaintiff also raised the issue of whether the trial court, on 

its own motion, should have appointed a guardian ad litem for 

A.B.

The Appellate Division affirmed the trial court’s denial of 

plaintiff’s motion to allow payment of child support into a 

special needs trust. In affirming the trial court’s 

determination, the panel acknowledged the standard for 

modification of the PSA is changed circumstances and noted

plaintiff did not demonstrate any circumstances to warrant 

modification of the PSA.
9

The panel determined that the parties entered into the PSA 

with an understanding of A.B.’s future needs, that child support 

payments would cover A.B.’s day-to-day needs exclusive of 

schooling, and that “[t]he amount struck by the parties of 

$50,000 per year in child support reflected that understanding.” 

The panel noted plaintiff further understood he would be 

responsible for the cost of A.B.’s special education. 

The appellate panel remarked that plaintiff’s arguments in 

favor of modification, such as a decrease in salary, were mired 

in hypotheticals. Additionally, the appellate panel noted that

the parties contemplated many of the situations set forth by 

plaintiff. In regard to the assertion that plaintiff may die 

prematurely, the panel referred to plaintiff’s agreement in the 

PSA to maintain a life insurance policy to benefit A.B. 

The panel also remarked that the parties could have 

established a special needs trust in the PSA but chose not to do 

so. Instead, they chose to name A.B. as the beneficiary of a 

$2.5 million life insurance policy. The parties also 

contemplated that, one day, plaintiff would be responsible for 

the costs of A.B.’s special needs education. The parties 

understood that A.B. would likely not be emancipated and, 

therefore, that plaintiff’s obligations would remain throughout 

his lifetime. 
10

In regard to the governmental benefits available to A.B., 

the panel concluded that the facts presented did not establish 

with certainty that A.B. would be eligible for governmental 

benefits if plaintiff paid child support into a special needs 

trust. The panel characterized plaintiff’s motion as “a selfserving effort to revise the terms of the PSA to make them more 

favorable to him” and affirmed the denial of his motion. 

The panel similarly rejected plaintiff’s argument that the 

trial judge should have, sua sponte, appointed a guardian ad 

litem for A.B. The panel concluded that Rule 4:26-2 only 

applies to minors or incapacitated persons who are parties to an 

action. A.B. is not a party to the action. It also concluded 

that this case does not involve a parenting time or custody 

dispute for which Rules 5:8A and 5:8B would allow the court to 

appoint a guardian ad litem. The panel determined this case was 

ultimately about modification of child support that did not 

warrant appointment of a representative for A.B. 

This Court granted plaintiff’s petition for certification. 

210 N.J. 217 (2012). We also granted Legal Services of New 

Jersey’s (Legal Services) motion to participate as amicus 

curiae. 

III.

A.
11

Plaintiff asserts that “[s]pecial needs planning is 

available to special needs children regardless of their wealth.” 

He further asserts that he wishes to pay his child support into 

a special needs trust to make A.B. eligible for governmental 

benefits. Plaintiff states that he is not attempting to 

terminate his child support, instead he simply wants to redirect 

any child support he pays into a special needs trust in order to 

permit A.B. to qualify for means-tested benefits. He asserts 

A.B. is the true beneficiary of the modification. 

Plaintiff argues that the Appellate Division’s opinion 

forecloses A.B. from ever receiving governmental benefits 

without his mother’s consent. Plaintiff contends that the 

Appellate Division’s “precedent is dangerous not only to the 

parties, but even more so to other families who do not have 

significant financial means.” He argues that a parent would be 

unable to prepare for the future of a special needs child 

without the consent of the other parent. 

According to plaintiff, although courts should uphold PSAs, 

the needs of a child should not be limited by his or her 

parents’ agreements. Plaintiff states that the courts should 

have modified any terms “that were detrimental to [A.B.]” in the 

exercise of its parens patriae responsibility to protect the 

interests of children by scrutinizing consensual agreements. He 
12

states that the court should be driven by the best interests of 

the child. 

Further, plaintiff asserts that, without the representation 

by a guardian ad litem, “[A.B.] is . . . being deprived of his 

constitutional right to governmental benefits without due 

process.” He argues that “[a] guardian ad litem would be 

equipped to represent the best interest of [A.B.] before the 

court rather than his parents whose applications focused on the 

conflict between the two of them.” 

B.

Defendant responds that plaintiff is attempting to 

terminate rather than modify his child support obligations. 

Nonetheless, defendant argues that the circumstances do not 

warrant an alteration to the PSA, a document which the parties 

took a long time to consider. She argues that, at the time of 

the creation of the PSA, the parties had “a full understanding 

of their child’s special needs” and made detailed preparations 

for A.B.’s care.

Defendant contends that A.B.’s interests are protected by 

enforcement of the PSA and by “ensuring that [A.B.] would not be 

relegated to a level of support provided by means tested 

government programs.” She emphasizes that A.B.’s needs should 

be met “in accordance with the standard of living enjoyed by 

both of [his] parents.” She asserts that the court’s ruling was 
13

proper, considering plaintiff failed to present a plan of how 

A.B. would be supported without direct payment to defendant or 

whether A.B. even qualified for governmental benefits. 

Defendant also contends that, under the statutory language, she 

would not have access to the funds to pay for food or clothing 

for A.B.

Finally, defendant asserts that the Appellate Division

properly determined that a guardian ad litem was not necessary 

in this case and agrees that this appeal is about nothing other 

than child support.

C.

Amicus curiae Legal Services argues that “the child support 

statute, the child support guidelines, and the state and federal 

laws on special needs trusts” all authorize the payment of child 

support to a special needs trust instead of directly to the 

custodial parent. Legal Services points to the 2005 amendment 

to the child support statute, see L. 2005, c. 171, § 1 (codified 

as amended at N.J.S.A. 2A:34-23(a)), which directs that child 

support continue past the age of twenty-one for the disabled 

child and authorizes courts to order the creation of a trust. 

That amendment, Legal Services argues, “broadened the scope of 

authority . . . to generally promoting the well-being of the 

disabled adult child.” 
14

Turning specifically to special needs trusts, Legal 

Services contends that those trusts are specifically allowed to 

enable a disabled person to enjoy a better standard of living. 

It argues that special needs trusts have been affirmed as a tool 

“to undertake planning to preserve assets and maximize public 

benefits.” 

Legal Services analogizes this case to In re Keri, 181 N.J.

50, 61-62 (2004), where this Court held that, “when a Medicaid 

spend-down plan does not interrupt or diminish a ward’s care, 

involves transfers to the natural objects of the ward’s bounty, 

and does not contravene an expressed prior intent or interest, 

the plan, a fortiori, provides for the best interests of the 

ward and satisfies the law’s goal to effectuate decisions an 

incompetent would make if he or she were able to act.” Legal 

Services suggests the standard articulated in Keri may be 

instructive here. 

Legal Services also contends that the Legislature intended 

to encourage the creation of special needs trusts to enable 

persons with disabilities to benefit from government programs, 

while still receiving supplemental support. According to Legal 

Services, although plaintiff would not gain financially, the 

benefits to A.B. would be significant. Legal Services argues 

that “[t]he total financial benefit of obtaining SSI and the 

related Medicaid, in New Jersey[,] is approximately $30,000.00
15

. . . annually.” Legal Services does recognize, however, that 

here, where plaintiff agreed to continue providing health 

insurance for A.B., the value of Medicaid is not readily 

apparent. 

IV.

In order to evaluate whether the trial court should have 

modified the child support agreement to allow plaintiff to pay 

child support directly into a special needs trust, we begin with 

a general examination of special needs trusts.

A.

A special needs trust is a trust that is intended to allow 

a disabled individual to maintain eligibility for certain needsbased government benefits.2 See Waldman v. Candia, 317 N.J. 

Super. 464, 472 (App. Div.), certif. granted, 158 N.J. 686 

(1999), appeal dismissed, 166 N.J. 599 (2000). The use of 

special needs trusts to protect eligibility for government 

benefits was first authorized by Congress when it passed the 

federal Omnibus Budget Reconciliation Act of 1993 (OBRA ‘93), 

Pub. L. No. 103-66, § 13611(b), 107 Stat. 312, 625 (codified as 

 

2 Our discussion is confined only to a special needs trust 

because plaintiff’s motion discussed only that type of trust. 

This Court recognizes that other types of trusts may be suitable 

to address the needs of disabled, dependent children. See Gary 

Mazart & Regina M. Spielberg, Trusts for the Benefit of Disabled 

Persons: Understanding the Differences Between Special Needs 

Trusts and Supplemental Benefits Trusts, N.J. Law. Mag., Feb. 

2009, at 25-26 (discussing supplemental benefits trusts).
16

amended at 42 U.S.C.A. § 1396p(d)). OBRA ‘93 identified certain 

types of trusts into which disabled individuals, or persons 

acting on behalf of such individuals, can place assets without 

those assets becoming “available assets” for purposes of 

determining Medicaid eligibility. See ibid. One such trust is 

what is known as a special needs trust. See 42 U.S.C.A. § 

1396p(d)(4)(A). In 1999, Congress extended the protections 

afforded by the use of a special needs trust, finding that the 

contents of that type of trust are not considered “resources” or 

“assets” for purposes of determining eligibility for SSI. See

Act of Dec. 14, 1999, Pub. L. No. 106-169, § 205(a), 113 Stat. 

1822, 1833 (codified as amended at 42 U.S.C.A. § 

1382b(e)(6)(C)(i)). 

Recognizing that the law in New Jersey did “not 

specifically authorize the establishment of these trusts[,]” 

N.J.S.A. 3B:11-36(d), in 2000, the Legislature adopted N.J.S.A.

3B:11-37(b). L. 2000, c. 96, §§ 1, 3. The statute provides 

that, “[u]pon the request of an interested party, a court may 

establish an OBRA ‘93 trust for a person who is disabled . . . 

and may direct that the assets of the person with a disability 

be placed in the OBRA ‘93 trust.” N.J.S.A. 3B:11-37(b). 

The contents of a special needs trust, however, may be 

excluded from the disabled person’s income calculation only if 

the trust satisfies certain specific requirements. See N.J.A.C.
17

10:71-4.11(g)(1). The most important requirement, recognized at 

both the state and federal level, is that the state must 

“receive all amounts remaining in the trust upon the death” of 

the trust beneficiary “up to an amount equal to the total 

medical assistance paid on behalf of the individual under a 

State plan.” 42 U.S.C.A. § 1396p(d)(4)(A); accord N.J.A.C.

10:71-4.11(g)(1)(xii). The implementing regulations contain

additional requirements for a trust to qualify as a special 

needs trust. See generally N.J.A.C. 10:71-4.11(g)(1)(i)-

(xviii). The trust must “specifically state that the trust is 

for the sole benefit of the trust beneficiary[,]” N.J.A.C.

10:71-4.11(g)(1)(ii), and the trust must be irrevocable, 

N.J.A.C. 10:71-4.11(g)(1)(viii). The trust must also 

“specifically state that its purpose is to permit the use of 

trust assets to supplement, and not to supplant, impair or 

diminish, any benefits or assistance of any Federal, State or 

other governmental entity for which the beneficiary may 

otherwise be eligible or which the beneficiary may be 

receiving.” N.J.A.C. 10:71-4.11(g)(1)(iii). A special needs 

trust is meant to supplement, rather than supplant, government 

benefits; therefore, if the money placed in a special needs 

trust is used for “food, clothing or shelter,” those 

expenditures will be considered in-kind support and maintenance 

and will count as a set amount of income attributable to the 
18

child. N.J.A.C. 10:71-4.11(g)(1)(iii)(1), -5.4(a)(12); see also

Mazart & Spielberg, Trusts for Disabled Persons, supra, at 24

(discussing special needs trusts). 

Individuals other than the beneficiary may place assets 

into a special needs trust. On the other hand, such a trust 

only qualifies as an OBRA ‘93 trust if it contains the assets of 

the beneficiary. See 42 U.S.C.A. § 1396p(d)(4)(A) (noting 

exception applies to “trust containing the assets of an 

individual under age 65 who is disabled”). In New Jersey, 

“child support belongs to the child[,]” Pascale v. Pascale, 140 

N.J. 583, 591 (1995); accord Martinetti v. Hickman, 261 N.J. 

Super. 508, 512 (App. Div. 1993); therefore, child support paid 

directly to a parent is considered an asset of the child in the 

nature of unearned income and will disqualify the child for 

government benefits, see Mazart & Spielberg, Trusts for Disabled 

Persons, supra, at 29-30. 

Because of the protection a special needs trust affords 

disabled individuals, it can be used as an effective tool to 

plan for the future of a disabled minor or adult child. See

Jennifer Brannan, Comment, Third-Party Special Needs Trust: 

Dead or Alive in a Uniform Trust Code World, 16 Tex. Wesleyan L. 

Rev. 249, 250-51, 255-56 (Winter 2010). The effectiveness of 

special needs trusts has led to express recognition of their 

importance by the majority of states, including New Jersey. See
19

N.J.S.A. 3B:11-36(a) (“It is in the public interest to encourage 

persons to set aside amounts to supplement and augment 

assistance provided by government entities to persons with 

severe chronic disabilities.”); see also In re Jennings v. 

Comm’r, N.Y.S. Dep’t of Social Servs., 893 N.Y.S.2d 103, 109

(App. Div. 2010) (explaining that New York Legislature codified 

supplemental needs trust3 definition in N.Y. Est. Powers & Trusts 

Law § 7-1.12); In re Riddell Testamentary Trust, 157 P.3d 888, 

893 (Wash. Ct. App. 2007) (“The law invites, rather than 

discourages, the creation of special needs trusts . . . .”); 

Parkhurst v. Wilson-Coker, 848 A.2d 515, 516-17, 519-21 (Conn. 

App. Ct. 2004) (explaining purpose of special needs trusts). 

Indeed, in Hamilton v. Laine, 67 Cal. Rptr. 2d 407, 408 (Ct. 

App. 1997), the Court of Appeal of California provided an 

example illustrating the benefits of a special needs trust:

Without [a] special needs trust, if the 

minor’s cost of care is $6,000 and the month 

annuity is $5,000, the annuity pays the 

first $5,000 of the minor’s cost of care and 

[Medicaid] covers the $1,000 difference. 

With [a] special needs trust, [Medicaid] 

covers the entire $6,000 and the $5,000 

monthly annuity can then be used for the 

minor’s special needs.

Despite the benefits, there are reasons why parents may 

choose not to employ use of a special needs trust and may 

 

3 Some jurisdictions refer to special needs trusts as 

supplemental needs trusts. Both are distinguishable from 

supplemental benefits trusts.
20

instead choose to fund their child’s future directly. Direct 

parental support avoids the use limitations placed on funds in 

special needs trusts. See Craig P. Goldman, Render unto Caesar 

That Which Is Rightfully Caesar’s, but not a Penny More than You 

Have To: Supplemental Needs Trusts in Minnesota, 23 Wm. 

Mitchell L. Rev. 639, 674 (1997) (“For example, money may not be 

spent for the benefit of others and thus the funds could not be 

used to pay for travel of family members to visit the 

beneficiary . . . or to pay for the college education or wedding 

of another child.” (Alteration in original) (internal quotation 

marks omitted)). Opting not to create a special needs trust 

also

eliminates governmental intrusions into 

private family matters, avoids disputes 

about eligibility for government benefits 

during the life of the adult child with a 

disability, does not require an 

understanding of Medicaid and SSI, and 

allows parents to fulfill what they may view 

as their moral obligation to provide for 

their child.

[Gail C. Eichstadt, Essay, Using Trusts to 

Provide for the Needs of an Adult Child with 

a Disability: An Introduction to Family 

Concerns for Lawyers and a Primer on Trusts 

for Parents, 45 S.D. L. Rev. 622, 637 

(1999/2000).]

V.
21

With that understanding of special needs trusts in mind, we 

next turn to the law regarding modification of child support 

arrangements, beginning with the appropriate standard of review.

A.

“When reviewing decisions granting or denying applications 

to modify child support, we examine whether, given the facts, 

the trial judge abused his or her discretion.” Jacoby v. 

Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). The trial 

court’s “‘award will not be disturbed unless it is manifestly 

unreasonable, arbitrary, or clearly contrary to reason or to 

other evidence, or the result of whim or caprice.’” Ibid.

(quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 

2001)). 

B.

“New Jersey has long espoused a policy favoring the use of 

consensual agreements to resolve marital controversies.” 

Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). Courts 

recognize the contractual nature of those matrimonial 

agreements. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). As 

contracts, PSAs should be enforced according to the original 

intent of the parties. Id. at 266. Therefore, as a general 

rule, “absen[t] . . . unconscionability, fraud, or overreaching 

in negotiations of the settlement,” a trial court has “no legal 

or equitable basis . . . to reform the parties’ property 
22

settlement agreement.” Miller v. Miller, 160 N.J. 408, 419 

(1999). 

PSAs, however, “must reflect the strong public and 

statutory purpose of ensuring fairness and equity in the 

dissolution of marriages.” Id. at 418. As such, courts 

historically have maintained “[t]he equitable authority” to 

modify child support agreements privately reached between 

parties. Conforti v. Guliadis, 128 N.J. 318, 323 (1992); see 

also Patetta v. Patetta, 358 N.J. Super. 90, 95 (App. Div. 2003) 

(“While courts are predisposed to uphold property settlement 

agreements, this enforceability is subject to judicial 

supervisory control.” (citations omitted)); N.J.S.A. 2A:34-23 

(support orders “may be revised and altered by the court from 

time to time as circumstances may require”). Allowing such 

modification ensures that the arrangements are “fair and just” 

to all parties involved. See Petersen v. Petersen, 85 N.J. 638, 

642 (1981). 

When a party to a comprehensive negotiated PSA seeks to 

modify any support obligation, that party must meet the 

threshold standard of changed circumstances. Lepis v. Lepis, 83 

N.J. 139, 146-48 (1980). Events that qualify as changed 

circumstances to justify an increase or decrease of support 

include an increase in the cost of living, an increase or 

decrease in the income of the supporting or supported spouse, 
23

cohabitation of the dependent spouse, illness or disability 

arising after the entry of the judgment, and changes in federal 

tax law. Id. at 151. In addition, an increase in the needs of 

a child or emancipation of a child may constitute changes in 

circumstances that will trigger an examination of the support 

obligation. Id. at 151-52. 

Changed circumstances are not confined to events unknown or 

unanticipated at the time of the agreement. Dolce v. Dolce, 383 

N.J. Super. 11, 19 (App. Div. 2006). On the other hand, care 

must be taken not to upset the reasonable expectations of the 

parties. Ibid. When a PSA addresses the changed circumstance, 

modification of the PSA may not be equitable or fair. Lepis, 

supra, 83 N.J. at 153. When one or both parents have agreed to 

undertakings advantageous to a child beyond that minimally 

required, the public policy favoring stability of arrangements, 

see Smith v. Smith, 72 N.J. 350, 360 (1977); Dolce, supra, 383 

N.J. Super. at 20, usually counsels against modification. 

The threshold changed circumstances standard assumes that

the parties addressed the event precipitating the application to 

modify provisions of a PSA. In some instances, the parties will 

acknowledge the existence of certain facts, express a desire to 

meet the needs of a child, or fashion a solution to the

acknowledged issues but defer the resolution of these issues

until a later date. In such a situation, the changed 
24

circumstances standard does not operate as a threshold barrier 

to address the motion before the court; the guiding principle 

for consideration of the motion is the best interests of the 

child. That same principle informs consideration of a motion to 

modify a negotiated comprehensive PSA once the party seeking 

modification demonstrates changed circumstances. 

VI.

A.

Statutes and case law have recognized for some time that 

creation of a trust to permit continuation of support of a 

dependent spouse or child should be permitted in appropriate 

circumstances. See N.J.S.A. 3B:11-36 to -37 (authorizing 

creation of special needs trust for disabled person); N.J.S.A.

2A:34-23 (authorizing “creation of trusts . . . to assure 

payment of reasonably foreseeable medical and educational 

expenses”); see also Jacobitti v. Jacobitti, 135 N.J. 571, 574-

75 (1994) (approving creation of trust to secure spousal 

support). Nonetheless, this case presents our first opportunity 

to consider under what circumstances a parent may modify a child 

support obligation by establishing a special needs trust for a 

dependent child in place of some or all of the terms of an 

existing negotiated agreement. 

Plaintiff’s application to establish a special needs trust 

and to fund it with child support now payable to defendant 
25

implicates certain basic principles regarding agreements that 

conclude a marriage and that govern the obligations and 

expectations of the parties to those agreements. We encourage 

divorcing parents to anticipate the needs of their children 

beyond the parents’ and children’s present circumstances and 

needs, and we must respect the reasonable expectations of the 

parties. On the other hand, we must guard against effectively 

freezing the means of providing for a child’s welfare to the 

plan adopted at one point in time and eliminating the 

possibility of crafting a support scheme more responsive to the 

needs of an adult, disabled child. Indeed, this Court has 

recognized for some time that the increased needs of a child 

should be considered a changed circumstance. Lepis, supra, 83 

N.J. at 151-52. We must also recognize that even the most 

thoughtful parents may not anticipate every future event. Their 

disabled child may or may not develop the skills required to 

live in an independent or semi-independent living arrangement. 

As the parents age, they may realize that their physical or 

financial resources cannot provide the level of care required by 

the adult, disabled child. Moreover, changes in the terms and 

conditions of employment of one or both parents may compromise 

the scheme devised years before to provide for the current and 

future needs of their child. Modification of a fully negotiated 
26

agreement for the support of any adult, disabled child should 

not be undertaken lightly. 

Thus, when parents develop a plan that addresses the needs 

of their child or children that may be more advantageous to the

child or children as they and their parents’ age, it should not 

be rejected out-of-hand because the parents have a negotiated 

plan in place. Moreover, when the parties have a fully 

negotiated agreement but have deferred some issues, such as 

payment for post-secondary education or future support for a 

disabled, dependent child, care must be taken that the best 

interests of the child standard is applied to allow full 

consideration of a proposal that addresses the future needs of 

the dependent, disabled child.

We reemphasize that “[t]he right to child support belongs 

to the child.” Pascale, supra, 140 N.J. at 591; accord

Martinetti, supra, 261 N.J. Super. at 512. The parent who 

receives the support is obliged to expend the funds to support 

the child. See J.S. v. L.S., 389 N.J. Super. 200, 205 (App. 

Div. 2006) (“The purpose of child support is to benefit 

children, not to protect or support either parent.”), certif. 

denied, 192 N.J. 295 (2007). A special needs trust in 

conjunction with a thoughtful plan to gain eligibility and 

receipt of government benefits, including Medicaid, SSI, and 

Division of Developmental Disability (DDD) programs, permits a 
27

family to provide health care, income, housing, and vocational 

services for their disabled, dependent child. The redirection 

of a child support obligation from a parent to a trust designed 

to meet the present and future needs of the dependent, disabled 

child should not be considered exceptional or extraordinary 

relief, if such a plan is in the best interests of the 

unemancipated child. 

B.

In this matter, the original PSA deferred certain issues, 

such as payment of post-secondary education, and reserved the 

right of either party to seek appropriate relief from the court. 

The PSA was amended in October 2005 to incorporate certain 

agreements about future financial provisions for A.B. but 

reserved for a later date discussions about whether a life 

insurance trust or a special needs trust should be established 

for A.B. While plaintiff committed to permitting A.B. to 

receive post-secondary educational opportunities, he did not 

commit to fully fund that level of education or all future 

financial needs of his son. Plaintiff’s application to 

establish a special needs trust for the future financial needs 

of A.B. should have been evaluated in accordance with the best 

interests of the child standard.

Plaintiff, however, failed to present a detailed plan by 

which the trial court could evaluate whether a special needs 
28

trust furthers the best interests of A.B. Plaintiff presented 

little more than a concept. Such a sparse presentation did not 

permit the Family Part judge to reach an informed decision on 

whether continuation of the existing support provisions from the 

PSA are in the best interests of A.B. as he matures and moves 

beyond special education and transitional education programs.

Plaintiff provides $50,000 each year to defendant for the 

support of A.B. Plaintiff also maintains A.B.’s health 

insurance and holds a $2.5 million life insurance policy for 

A.B.’s benefit. The child support is a considerable sum of 

money to provide for A.B.’s current needs, and the life 

insurance proceeds will provide a considerable sum of money to 

care for A.B. on his father’s death. But A.B.’s needs are also 

considerable, and the record contains little information that 

addresses the fundamental question whether the funds currently 

paid for his support are sufficient to meet all of his needs. 

The record merely suggests that gaining eligibility for 

government programs, such as Medicaid, SSI, and DDD, are better 

suited to meeting the long-term needs of A.B.

A parent seeking to alter a negotiated agreement for the 

financial support of a disabled child or seeking court approval 

of a plan to address deferred and unresolved issues concerning 

the support of a dependent, disabled child must present a 

specific plan and demonstrate how the proposed trust will 
29

benefit the disabled child. At a minimum, the Family Part judge 

must have a complete understanding of the current physical, 

psychological, educational, vocational, and recreational needs 

of the dependent, disabled child, the cost to support those 

needs, and the resources available to fund those needs. If the 

plan relies on access to government benefits, the Family Part 

judge must be presented with a specific plan that addresses,

among other considerations, eligibility rules, the time it will 

take to gain eligibility, and how long it will take to access 

benefits once eligibility is established. The plan must address 

the means of defraying current costs without compromising the 

child’s benefits eligibility. The plan must also address the 

terms and conditions for disbursement of the corpus of the trust 

and designate a trustee.

The plan presented by plaintiff meets none of those 

requirements. Due to the manifest deficiencies of the 

application presented by plaintiff, the Appellate Division 

properly affirmed the order denying plaintiff’s motion.

VII.

Although we have determined that plaintiff presented an 

inadequate plan to warrant modification or amendment of the PSA 

by the trial court, the record indicates that both parents 

recognize the wisdom of creating a plan to provide for the needs 

of their son now and as he and they grow older. We, therefore, 
30

address whether and under what circumstances a guardian ad litem 

should be appointed for a dependent, disabled child who is the 

subject of a proposed special needs trust. 

The need for an independent person to review certain 

applications that will affect the interests of a dependent and 

unemancipated child has been recognized by legislation and court 

rule. Our court rules contemplate the appointment of a guardian

ad litem in two contexts: an action to determine the incapacity 

of a person, R. 4:86; and actions to resolve custody or 

parenting time/visitation disputes, R. 5:8B. “[T]he basic role 

of the guardian ad litem is to assist the court in its 

determination of the incompetent’s or minor’s best interest.” 

Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. 

Div.), certif. denied, 152 N.J. 12 (1997); accord In re M.R., 

135 N.J. 155, 175 (1994).

There are other contexts in which either a law guardian 

will be appointed or a third party will be required to conduct 

an investigation to assure that the best interests of the child 

or children are advanced and protected. For example, a law 

guardian will be appointed for a child who is the subject of an 

abuse or neglect proceeding or a termination of parental rights 

proceeding. N.J.S.A. 9:6-8.21(d), -8.23; N.J.S.A. 30:4C-
31

15.4(b).

4 In an adoption proceeding where the child is received 

through private placement rather than from an approved agency, 

an approved agency must be appointed to investigate the 

circumstances of the placement and to perform an evaluation of 

the child and the adopting parents. N.J.S.A. 9:3-48(a)(2).

5 No 

rule or statute, however, directly speaks to the situation here.

Certainly not every application affecting an unemancipated 

child requires appointment of a guardian ad litem. See R. 5:8B

(“In all cases in which custody or parenting time/visitation is 

an issue, a guardian ad litem may be appointed . . . if the 

circumstances warrant such an appointment.” (Emphasis added)).

The decision to appoint a guardian ad litem is reposed in the 

discretion of the trial judge, see In re M.R., supra, 135 N.J.

at 179, and rightly so because the decision is informed by the 

experience the judge gains as the judge sifts through a daily 

docket of contested matters. A judge is also charged with 

protecting the best interests of a child. The judge should not 

hesitate, therefore, to appoint a person to permit the 

 

4 The basic role of the law guardian is to serve as an advocate 

for the minor child. 

5 N.J.S.A. 2A:4A-92 also authorizes a Court Appointed Special 

Advocate (CASA) program in each vicinage. See also Rule 5:8C 

(authorizing appointment of special advocate from CASA program 

to assist Family Part judge in determining best interests of 

child); Administrative Directive #05-13 (July 16, 2013) (noting 

that CASA volunteers gather information about children who have 

been removed from their homes due to abuse or neglect and 

present that information to court).
32

dependent, disabled child to have a voice in an application that 

may so fundamentally affect his or her future. In certain 

situations, a court-appointed expert well-versed in special 

needs trusts may be the appropriate response. When one parent

resists an application by the other parent to establish a trust 

that may offer more financial security to the disabled, 

unemancipated child as the child matures, the judge should 

seriously consider resorting to the various available resources

to protect the best interests of the child. 

In this case, however, as plaintiff’s application was 

presented to the court, we conclude that the trial judge did not 

mistakenly exercise the discretion reposed in him to appoint a 

guardian ad litem or other resource to investigate and report 

whether a special needs trust would protect and advance the best 

interests of A.B. The plan was entirely speculative and lacked 

the detail to permit an informed decision on whether it 

protected and advanced the best interests of A.B. When either 

parent submits a plan that permits an informed decision, the 

trial court should consider appointment of a guardian ad litem

or other resource person, particularly if there is a suggestion

that the parent proposing the trust is seeking to minimize the 

obligation to support A.B. or that defendant considers the child 

support currently paid to her as anything other than funds for 

the exclusive support of A.B.
33

VIII.

The judgment of the Appellate Division is affirmed as 

modified. 

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS and 

PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in 

JUDGE CUFF’s opinion.
SUPREME COURT OF NEW JERSEY

NO. A-111 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

J.B.,

Plaintiff-Appellant,

v.

W.B.,

Defendant-Respondent.

DECIDED August 20, 2013

Chief Justice Rabner PRESIDING

OPINION BY Judge Cuff (temporarily assigned) 

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST AFFIRMED AS 

MODIFIED

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE HOENS X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 7