Divorce and Children With Special Needs

There are few challenges more difficult than going through a divorce and having a child with special needs (divorce and special needs). The burden of future planning, well-being and protection fall squarely on your shoulders as a custodial parent.

When there is a child with special needs involved in a divorce, issues of child custody, visitation, and support and property division are significantly more complex to negotiate. As part of your divorce, make sure you consider globally what your child's special needs are and have your attorney walk you through a "day in the life" of caring for your child.

Child support charts do not address the extra expenses of a child with special needs. There is increased need for specialty medical care, services, and equipment; for non-prescription treatments, vitamins and nutritional needs; for paid respite care for the custodial parent. Uncertainty about the nature and cost of future care makes it difficult to estimate disability-related expenses in a divorce agreement.

From a legal perspective, the goal is to identify and understand how to determine the child's best interests. Here are some examples:

• With whom will the child live?

• How much contact (previously termed "access" or, in some jurisdictions, "visitation")

will the parents, legal guardian or other parties be allowed (or required) to have?

• To whom and by whom will child support be paid and in what amount?

• Am I able to support myself or do I need spousal maintenance to allow me to care for

the child?

A parenting plan should spell out essential information and instructions. A good starting point is to explore how much you and your spouse agree concerning your child's disabilities and abilities.

In structuring a divorce agreement, special care must be given to parenting arrangements, estate planning and the child's transition to adulthood. Legislation and case law are evolving in this area as more family lawyers deal with a burgeoning number of cases involving children with special needs.

In the divorce agreement, care must be given to unique issues that arise in the child's transition into adulthood, such as guardianship, eligibility for quasi- government or private agency benefits, employment, recreation and social skills, independent living, or custodial care. Typically with developing children, child support and custody end at age of majority or when they graduate from college. Divorcing parents of children with special needs who have severe impairments face the reality of life- long care- giving and, perhaps, co-parenting.

Alimony (spousal maintenance) and child support payments need to consider the child's eligibility for public benefits as both a minor and adult. It is essential that your family law attorney work with a special needs attorney and an experienced financial adviser to eliminate risk of forfeiting the child's entitlements. A qualified divorce attorney will know how child support payments made directly to the custodial parent interact (negatively) with "means tested" government benefit programs like SSI and Medicaid. In-kind alimony and/or child support should be considered in order to preserve government benefits. It is critical to address these issues during the divorce process.

Managing the care of a child with special needs is often a full- time job and the effect on the custodial parent's income should be considered when establishing spousal maintenance. Since caring for your child with special needs may extend well beyond age of majority, you need to tailor your divorce agreement for the long-term. Use appropriate special needs trusts, in coordination with public benefits and in contemplation of gifting plans and long-term care insurance. Effectively channel support obligations and parenting plans in the divorce settlement to provide for more quality of life expenditures for the child.

Make the system work better for you and your family by taking a practical look at what special needs exist and how they are appropriately addressed in the arena of divorce.

If you have a special needs child and are going through a divorce or child custody case, call the experienced attorneys at LASITER & JACKSON at (602) 234-5900 to schedule your free 30 minute consultation.

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