divorce with special-needs child

Getting a divorce is hard on any family, but it’s especially difficult when a special-needs child is involved, because the burden of care and planning for the child falls mostly on the custodial parent.  When a special-needs child is involved in a divorce, the issues of custody, visitation, child support, and division of community assets become more complex and require special attention.  Standard child support and custody guidelines don’t address the extra costs and unique requirements of a special-needs child.  The custodial parent must be aware of extra expenses such as medical care, behavior management needs, special equipment requirements, and other costs.  

Estimating Future Expenses. 

Uncertainty about the future expenses of a special-needs child make negotiating disability-related expenses difficult.  Legally, it especially important to specify in the parenting plan where the child will live, how much access the non-custodial parent will have with the special-needs child, and how much child support will be paid to the custodial parent.  Additionally, special planning should be done to handle the child’s transition to adulthood, including establishing a guardianship, clarifying eligibility for governmental benefits, the possibilities for independent living, and the added costs of long-term custodial care.  Typically, child support ends at maturity, but in the case of a special-needs child, support may continue for the life of payer.  Managing a special needs-child is often a full-time job, so the custodial parent may not work, and that creates an added financial burden on the family.  

Special Needs Trust. 

It’s important to establish a special needs trust for your child as part of the divorce agreement.  Also, make certain the court orders child support be paid into the special needs trust in order to qualify for maximum governmental benefits.  Also, make certain that the special needs trust is the beneficiary of any pension plans, life insurance, and other employment benefits available to the parents.  The divorce decree should require the ex-spouse carry life insurance to cover the total amount of child support he or she will have to pay.  Have the court require the ex-spouse to supply annual copies of the policy to make certain it’s in full force.

Child Support. 

Everything will cost more for a special-needs child, so make certain the court is aware of the extra expenses you face over the child’s lifetime.  Don’t forget college expenses, the extra costs of disability driving, and health insurance.  Make certain your special-needs child remains eligible for health insurance after he or she would ordinarily age out of family coverage if the child is not emancipated because of a disability.  

Guardianship. 

If your special-needs child is not able to care for himself or herself at age 18 years, the custodial parent will need to apply for legal guardianship.  This is an added expense and should be included in the divorce agreement.

Social Security Benefits. 

There are social security benefits available for many special-needs children, depending on the income of the parents.  Some children may be able to collect benefits before the age of 18 years.  Supplemental Security Income will begin at age 18 years for most disabled children.  If child support is properly ordered paid into a special-needs trust, then SSI benefits will continue together with the child support and the child will remain eligible for governmental benefits even with the extra income from the support payments.  

Long-Term Medical Care.

Raising and caring for a special-needs child can be expensive because he or she may require long-term medical care.  Even with a special-needs trust and governmental benefits, one parent may need to be a full-time caretaker and not work.  The child’s special-needs will affect how custody and child support are structured.  For example, children with autism become upset when their routine is disrupted so parents may need to avoid standard visitation schedules.  Longer periods of uninterrupted visitation during the summer may be more suited to this situation.  It’s also important to consider how the child will travel from one parent to the other if special vehicles are needed.  

A Parenting Plan. 

The parenting plan for a special-needs child must be detailed and include day to day schedules for diet monitoring, behavior management, administering medications, communicating with a non-verbal child, and special environmental requirements to accommodate the child’s needs.  

If you are divorcing and a special-needs child is involved, consider opting for a collaborative divorce and engage a specialist who knows how to handle the legal requirements of a special-needs child.  The collaborative process is ideally suited to managing the challenges of a special-needs child and will help the parents learn to communicate and cooperate in the care and management of their child post-divorce.

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