Considerations In a Divorce Involving a Child with Special Needs
Marriage and raising children are often difficult. Raising a child with special needs may put even more strain on a marriage, with the result that parents of special needs children have a higher divorce rate than the overall population. Special issues arise when parents of a disabled child divorce, and it is important to hire a divorce attorney who is familiar with this unique set of circumstances. Below are some issues that should always be addressed in a divorce involving a special needs child.
1. Determine the extent to which the parents agree or disagree regarding the needs of their child and how to address those needs.
Disagreements about how to raise children and how to manage money are often at the core of divorce cases, and divorces between parents of special needs children are no exception. Often the parents of special needs children have disagreements about the needs of their child and how to address those needs, including how much money should be spent addressing those needs. In some cases, there are significant disagreements regarding whether or not a child actually has special needs or the severity of those needs. It is important to determine at the outset where the areas of disagreement are, in order to properly address the future needs and care of the special needs child as part of the divorce case.
2. Determine whether the special needs child is likely to need support beyond completion of high school or reaching age 18.
The severity of a child’s disabilities can vary greatly. In some cases, the child’s disabilities are so extreme that there will be no debate, even if the child is still very young, about the continuing need for support after the child becomes an adult. In that event, child support is likely to be ordered to continue indefinitely. It will be up to the obligor to seek a court order terminating support in the event the child/adult becomes capable of self-support.
However, it is not always possible to determine whether the child will need support beyond the completion of high school. If the court does not recognize the need for permanent support at the time of divorce, the burden will be on the party to whom the primary care obligation has fallen to seek an order to continue the support upon completion of high school. The fact that the adult disabled child may need support well beyond the lives of his or her parents significantly increases the overall cost of the support and presents unique financial challenges.
3. Determine whether there is a need for a special needs trust for the benefit of the adult disabled child.
If the support of an adult disabled child is not paid into a special needs trust, then the support will be considered income of the adult disabled child, which will likely disqualify the child from receiving social security benefits and Medicaid benefits. Loss of these benefits could be quite detrimental. Accordingly, if the disabled adult child might qualify for social security and/or Medicaid benefits, a special needs trust should be established.
4. Determine whether the one or both parents will need to seek a guardianship of the person of the child.
If a child will need someone to make decisions on his or her behalf once he or she becomes an adult, then one or both parents will need to seek a guardianship of the person of the child when the child reaches 18. This is necessary because the Divorce Decree or SAPCR Order, which contains conservatorship provisions, will terminate upon the child reaching 18 years of age. This will occur even if the child is disabled to the extent that the child/adult still needs someone to make major decisions on his behalf.
5. Help the parents understand that the terms of their Divorce Decree are especially important for the parents of a special needs child as compared to those of typical children.
Special needs children will likely require significant educational assistance, which will involve many meetings with school officials to create and implement special education plans. These children may also have issues regarding elective invasive medical procedures, mental health treatment, or a need to deal with the government to access benefits for the child that are not common for typical children. Care must be taken to develop the case depending on whether or not the parents will be able to work together to make these major decisions for the child. If the parents will have difficulty making decisions together, then it may be appropriate for one parent to have the ability to make final decisions in the event of a disagreement. Otherwise, provisions for an alternative dispute resolution process can be included to help in the event of an impasse on important decisions for the child.
6. A unique possession schedule may need to be imposed to address each parent’s ability to care for the needs of the child, the child’s ability to transition between two homes and any other unique problems caused by the child’s special needs.
Ideally, both parents will be able to manage the child’s needs and give the other parent a break from what can be a difficult job. That is not always the case, however, and the fact that one parent has proven to be unable to manage the child and his or her needs for long stretches should be considered when fashioning a possession schedule. In addition, when considering schedules for a special needs child, the presence of siblings should be taken into consideration. It may make sense in some cases to have a different schedule for the special needs child, but that is not always the case.
7. A parent who is caring for a disabled child of the marriage may seek spousal support, regardless of the duration of the marriage, for as long as the court determines that they need the support due to the care needs of the disabled child.
Oftentimes one parent has been the primary care provider of the special needs child and plans to continue to do so even after that child become an adult. Many times, this care will prevent employment outside the home. In these instances, the caretaker may seek support above and beyond the norm. The appropriateness of such support is, of course, a case by case determination, as parents of an adult disabled child often disagree on the need for continued care, as well as the type of care the disabled adult should receive. While one parent may believe that in-home care by a parent is best for the child and that the other parent should pay to make that possible, other options are out there, such as group homes for disabled adults. Reasonable minds may disagree on what is best for a particular disabled adult, and a court may ultimately have to make that decision if the parents cannot agree.
8. Special needs children create unique issues for relocation cases as well.
Relocation cases are always challenging, due to the difficulty in maintaining involvement with the child for the parent left behind. This is especially so with a special needs child who may not ever be able to travel unaccompanied by another adult. On the other hand, the potential support of extended family is a compelling argument by the primary parent to be allowed to relocate near his or her family.
9. As the special needs child and the parents age, decisions will need to be made for long-term care outside of the parent’s home.
Even if a parent is available to provide in-home care for a time, this will necessarily come to an end as the parent ages or passes on. There are many programs that are designed to allow disabled adults to stay in their homes and in their community, and some of these programs may provide massive amounts of care so that a disabled adult may remain in the home, even if their family is unable to provide all of their care. Advance planning for long term care is essential, especially for divorcing parents who may not see eye to eye on what is best for their special needs child.
Each child with special needs is different, and cases involving such children will often require a unique approach to prepare the matter for settlement or trial. While this list is far from complete it is intended as a good starting point for lawyers entrusted with this unique and important responsibility.
These cases have a special place in our hearts and in our practice. All of our attorneys have experience dealing with divorces involving special needs children. If we can assist with additional information please contact us at 512.480.9777.