Right now, 40 to 50 percent of Americans who are getting married will get divorced. However, couples who are parents to special needs children have almost double the divorce rate percentage with 80 to 90 percent of marriages ending in divorce. While any divorce poses specific challenges, when dealing with a divorce with a special needs child, the focus should be on strategic long-term disability care planning to ensure a financial support for children who will need long-term services. Unlike other children who will one day outgrow their parents, special needs children will require assistance with basic life skills such as decision making, daily activity and self-care well into their own adulthood.
When negotiating during a divorce, it is important to take into consideration the child’s disability when making agreements. For example, children with Autism or Sensory Processing Disorder might not be able to handle transitioning from one house to another therefore only one parent might have physical custody rather than both. As always, all custody discussions should be handled with what is in the child’s best interest but in this case, what is the best long-term interest of the child. Also, agreements should clearly define responsibilities when it comes to physical therapy, tutoring, specialized medications and education.
Another unique aspect of divorce with specials needs children is that children aren’t always minors. In the event that the child is above the age of 18 and is disabled and not incapacitated, then they can issue what is called a General Durable Power of Attorney to one parent or both parents. They might also dictate who will be the Health Care Proxy to help make informed health care decisions. If the child who is over the age of 18 does not have the capacity to make informed decisions guardianships are a possibility. Guardianships are usually awards to one parent who will make decisions on what is best for the child.
Divisions of assets become tricky in these cases because when the child reaches a certain age because in order for the child to receive Medicaid and Social Security Benefits they must make below a certain income. This might seem contradictory because it is always the parents’ goal to make sure that their child will be financially secure in the future. It is recommended that assets that wish to be given to the child be put into a separate trust and appoint a trustee to use the funds at their discretion. This way the child can still qualify for things like Medicaid and Social Security Income. It is important to note that the trustee cannot be one of the parents.
If you are going through a divorce and have a child with special needs, contact one of our divorce attorneys to help you through this difficult process to ensure a successful financial future for yourself as well as for your child.