Special-Needs Children and Divorce
Too often, the demands of caring for a special-needs child create stressors on a marriage that lead a couple to divorce. The divorce rate among parents of special needs children is above average – by some estimates, as high as 80%. When crafting a divorce agreement (or modifying one), unique issues must be anticipated and addressed for a special needs child. An informed approach can make all the difference in securing the child’s future, and in allowing smooth, successful co-parenting going forward.
All of our firm’s lawyers have represented parents of special-needs children. Keith Maples – the divorced father of an autistic son – has focused on this practice area and he has particular insights into the challenges and issues involved. Our firm’s team approach to case work allows everyone to benefit from Keith’s insights and expertise. Keith has supported cases throughout Texas by being co-counsel or by providing consulting to the attorney of record for special needs cases. This arrangement best supports our non-Austin based clients by having special needs expertise on the case, so critical to a good resolution, while retaining their regular family law attorney to handle the remainder of the case. Keith has also provided testimony as an expert witness in cases involving special needs issues. Additionally, Keith regularly serves as a mediator in cases involving these issues. For additional information, click here
to review Keith's paper from his presentation on child support issues for parents of special needs children at the 2010 Advanced Family Law Seminar. Click here
to review Keith's paper from his presentation on issues for special needs children at the 2011 Advanced Family Law Seminar.
We have found the typical divorce decree often is inadequate to address the issues that arise with special-needs children. Factors that make their parenting plans more challenging include:
- Special-needs children often have difficulties, which can make typical shared-custody schedules unworkable;
Parents may not agree about how to address their child’s special needs on a day-to-day basis – for example, maintaining a standard routine;
Parents may have different opinions about healthcare choices, treatment plans, education and interventions; and/or
Parents may need to specify tools and methods for how to resolve areas in which they disagree
Careful consideration must be given to a parenting plan that will meet the family's special needs.
Before a divorce is finalized, numerous decisions must be negotiated, resolved and written into a parenting plan. A divorce decree may need specific provisions that address:
Medical, educational and therapeutic interventions, including “alternative” medicine;
Treatments not covered by insurance;
Diet and medication programs;
Working with schools to implement plans for the educational needs of the child;
Care outside of either parent’s home, and associated costs;
Impact of care decisions on parents’ ability to work outside the home; and/or
Lifetime care and support.
Read more about parenting plans here.
Many special-needs children will require care and support all of their lives. In such cases, the divorce decree must anticipate life-long support issues – well into the child’s adulthood and possibly beyond the parents’ lifetimes. Adult children typically become uninsurable as dependents so the child will likely need to depend on Medicare for medical expenses. Payments of child support directly to a parent might jeopardize the child’s entitlement to Medicare and other benefits. This issue can be addressed with the creation of a special needs trust for the child, working with an estate-planning lawyer. Many of the provisions of the Family Court order will not survive the child's eighteenth birthday and some children may require a guardianship to that the parents may continue to provide for the disabled child's care after they become an adult.
Each child and family is different. No cookie-cutter approach will work in every case. We have found it essential to carefully consider each child’s needs and abilities, as well as the family’s unique dynamic and situation, then create a plan to suit them over time.