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Divorce with a Child with Special Needs

When you have a child with special needs, it seems like going through a divorce is more emotional and complicated. Many parents feel alone and powerless, facing the challenges of taking care of your child’s health, education, and long-term planning for the future all by yourself. So how do you get through a divorce with a child with special needs?

All the elements you must navigate, including child custody, visitation and financial support, become that much more complex and challenging. That’s why it is important to speak with experts and attorneys who can help you through the process. Make sure you consider each of your child’s needs and you articulate all of them to those who are assisting you. Here are some points to consider.

Financial Aspects of Divorce

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. If you are unsure about the costs for any of the items your child needs, it will be difficult to estimate disability-related expenses in a divorce agreement.

If you receive government benefits for your child with special needs, it is essential that your attorney work with a special need’s attorney and an experienced financial adviser to eliminate risk of losing the child’s entitlements. Divorce attorneys do not always know how child support payments made directly to the custodial parent negatively impact government benefit programs like SSI and IHSS. 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.

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.

Who gets 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.

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.

Planning for the future

In structuring a divorce agreement, special care must be given to parenting arrangements, estate planning and the child’s transition to adulthood. This includes planning for your child in the future: guardianship, eligibility for benefits, employment, recreation and social skills, independent living, or custodial care. If your special needs child has severe impairments, you will have to face the reality of life-long caregiving and, perhaps, co-parenting.

Use appropriate special needs trusts, in coordination with public benefits and in contemplation of gifting plans and long-term care insurance. Effectively direct support obligations and parenting plans in the divorce settlement to provide for more quality of life for your child. Make the system works 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 feel overwhelmed and you need help, please contact us.

American Disability Association is dedicated to the wellbeing and protection of children with disabilities and actively provides support to enhance their quality of life. Whether you are dealing with federal or state benefits or struggling with a school district to get proper education for your child, we have the resources to help you. Many individuals and families managing a disability are not aware of the wide array of services available to them, or they do not know how to apply for these benefits in a way that is likely to succeed.

Contact us for help. Dial (888) 323-2133 or email us at [email protected]