Family Law

Divorce and Children With Special Needs: Things to Consider

By Melissa Heinig, Attorney
Learn more about steps you should take during a divorce that involves a special needs child.

A divorce with children can be challenging, but when divorce involves special needs children, the fear and anxiety felt by parents can reach extraordinary levels. Studies show that divorce rates among couples with special needs children is at a startling 80%. If you find yourself in this situation, there are important steps you can take to protect yourself and your child.

Parents Should Work Together, if Possible

In any divorce, the process is less expensive and less frustrating if the parents work together. This is especially true in cases involving special needs children. First, both parents need to agree on the severity and existence of the child’s special needs. It’s very common for parents to disagree on treatment plans if they don't agree there's a need to begin with. Once you've resolved this first step, set aside your differences, and sit down prepared to work together to design a parenting plan that is best for your child.

What Should Parents Consider?

Custody

Parents need to decide who will be the child’s primary caretaker or custodial parent. When making this decision, parents should discuss who can best care for the child’s daily medical needs, including physical limitations and mental disabilities. You should consider where the child feels the most comfortable and safe, and where the child will continue to thrive.

Parents should also create a visitation schedule for the child and other parent. You both need to understand that changes in a child’s routine can be difficult and create unnecessary stress on the child. Some children will have a hard time with the separation from the other parent, so you should include ongoing telephone contact, if possible, in your agreement. You should also address any ongoing medical or therapy appointments for the child to prevent confusion or disagreements between parents in the future. Be specific so you will be able to resolve future disputes easier.

In addition to physical custody and visitation, parents should decide legal custody—who will make decisions about the child’s medical, educational, and social needs. The court can grant, or parents can agree, to sole (to one parent) or joint (to both parents) legal custody.

Things to consider when deciding legal custody include who will be responsible for:

  • the child’s medical care
  • the child’s daily needs
  • the child’s education, including choosing a school, attending meetings and creating special education plans, and
  • the child’s social opportunities, such as therapy and support groups.

Guardianship

In some cases, a child will need care beyond the age of 18. Parents should decide who will become the child’s legal guardian if this is the case. The guardian will be responsible for all decisions concerning the child once they are over the age of 18. There are special requirements that guardians need to meet, so talk to an estate planning or probate attorney in your area before making this decision.

Financial Support

Children are entitled to support from both parents until they reach the age of 18, and in some cases, 19 ½. The court will consider each parent’s financial situation, ability to work, tax deductions, and daycare costs. Although the court will order support, the child support formulas don’t necessarily take into consideration the extraordinary costs that often come with having a special needs child. Extra expenses may include medical bills, medical procedures, equipment, therapies, and costs for schooling.

Parents can make it clear in the divorce or parenting agreement who will be responsible for these extra costs. The custodial parent shouldn’t carry this financial burden alone, so make sure the agreement is specific and thorough.

In addition to child support, some courts will order a noncustodial parent to pay spousal support (alimony). This order is based on each parent’s financial situation, ability to work, health, education, and any other factors the court deems important. Courts often reserve alimony for spouses who had a long marriage and where one spouse has a higher income than the other. The purpose of alimony is to put the parents on equal ground financially. In some cases, however, courts will use it to offset costs in divorces with special needs children. For example, if the custodial spouse must stay home to provide round the clock care for the child with severe medical disabilities, a court may take that into consideration when setting alimony.

Public Assistance

If your child receives public assistance, like Social Security benefits, or Medicaid, or if they may need it in the future, your parenting agreement should include a statement that requires both parents to comply with the application process. Many agencies will require income information from both parents for certain assistance programs, so both parents need to provide the required documents in a timely manner to make sure the child receives the support they need.

Special Needs Trust

If your child will receive support from either parent after turning 18, you will need to create a special needs trust, which is a legal arrangement in which a person, called the “trustee,” holds and manages assets for the child, called the “beneficiary.”

In a special needs trust, any money earmarked for the child’s benefit is placed into an account that’s managed by the child’s trustee, usually the parent. The trustee is responsible for distributing the money to the child as needed.

Without a special needs trust, the state or federal government may consider the money the child receives to be “income,” which may disqualify the child from obtaining Social Security benefits. This could be detrimental to the child, so it’s important to speak with a qualified attorney about a special needs trust before you finalize your divorce.

If you have additional questions about a divorce with a special needs child, or you want someone to review a proposed parenting agreement, contact an experienced family law attorney in your area.

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