Considerations When Divorcing Spouses Have Children With Special Needs

Considerations when Divorcing Spouses have Children with Special Needs

In a divorce, two broad categories of issues must be addressed and determined when the spouses have children with special needs: (1) issues relating to custody and parenting time; and (2) issues relating to finances, support, medical and life insurance. The presence of a child with special needs can significantly impact how both custody and financial issues are ultimately determined.

Developing a Parenting Plan

Planning for continued parental care of a child with special needs requires a great deal of thought. You will need to develop a Parenting Plan, which is a written document outlining how you will raise a child or children after separation or divorce. A Parenting Plan for a child with special needs is often more complex, as the child’s care may require a multitude of additional services. The unique circumstances of the child and the post-divorce environment must be carefully considered. The Parenting Plan must be detailed and in the best interest of the child, containing descriptions of a schedule that governs the days and times during which each parent spends time with the child and decisions regarding the child’s education.  The issue of which school the child will attend and the school’s curriculum has heightened significance in cases involving a child with special needs.  The Parenting Plan should also contain provisions regarding medical decision-making and a detailed description of the child’s current medical needs and how they are being met.  Future needs that can be anticipated should also be discussed.

Generally, a Parenting Plan reflects the current situation. The needs of all children change over time, but when considering a child who requires therapies or medications, it is more likely that there will be a need for modifications to the routine. It is impossible to predict all potential changes, but if it is likely that parents will not be able to agree to changes or on the implementation of the plan, a provision for addressing such impasses can be included in the Parenting Plan.  Given the nature of the child’s special needs, any or all of these considerations may take on increased significance.

Spousal Support

Another main issue to consider is how to meet the financial needs of the parent who has provided the majority of care for the special needs child and may continue to do so after the divorce. Where a child’s special needs are significant, one parent may be required to sacrifice his or her job or career in whole or in part to be able to care for the child. In these cases, it is critical to ensure that the caretaker parent is provided with sufficient funds to live – not only while the child is still a minor – but also after the child has reached majority. If that parent has forsaken his or her livelihood to care for the child for many years, it may be impossible for that parent to meaningfully re-enter the workforce. It should also be considered, among other things, how that parent will be able to live during his or her retirement.

Child Support

The costs of raising a child with special needs may be astronomical depending on the severity of his or her needs.  In a divorce situation, a child’s special needs may impact the determination of the appropriate amount of child support. Child support is calculated based on parents’ income but it can also include allocation of additional support when there are extraordinary expenses such as necessary medical or education costs and day care costs which continue longer than usual. Life insurance to cover the contingency of a parent’s death during the child’s minority may also be considered.  It must be contemplated whether child support or other benefits should be paid directly to the other parent, the child or into a third-party special needs trust.  Children can lose out on significant governmental benefits depending on how support or benefits are paid. 

Caring For Adult Children

Planning for the future and transitioning to adulthood

Some children’s special needs are so significant that they will never be able to live on their own or make decisions for themselves. If a child remains unable to make decisions for himself or herself, a parent may need to seek a guardianship or conservatorship in order to continue making those decisions. While one or both parents can assume this responsibility during their lifetime, the parties may need to provide that a legal guardian will assume these functions in the event they predecease the child.

A child with special needs may be entitled to federal and/or state financial benefits, the purpose of which is to create a financial safety net. These benefits may be in the form of cash or contribution in kind toward educational, housing, or general living expenses. Diagnosis and documentation of need is often critical to a determination of such entitlement. These entitlements are often, but not always, financially means-tested.  There are two important public assistance programs available to families with a special needs child:  1) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq., 20 C.F.R. Part 416; and 2) Medicaid, 42 U.S.C. 1396 et seq., 42 C.F.R. Parts 430, 431, and 435.  It is critically important to consider the effect of the receipt of income (such as inheritance or the proceeds of a life insurance policy) to an adult child on any benefits he or she may be receiving. In addition, child support, if appropriate past age 18, may be detrimental to a special needs child’s qualification for public benefits if handled improperly.

A Special Needs Trusts (SNT) allows families of disabled children to create a trust to provide for supplemental needs above basic food, clothing and shelter. These trusts are a crucial planning tool when a beneficiary with a disability receives an inheritance or other income. The primary objective of the SNT is to supplement, and not to replace, the government benefits for which the beneficiary would otherwise be eligible, primarily Medicaid and Supplemental Security Income (SSI).

Navigating the divorce process when you have a child with special needs can be challenging. Parents should consult attorneys who are educated, experienced, and trained in connection with the unique issues presented by these circumstances and can assist them in this process with the goal of achieving the best outcome for their families.  The New Jersey family law attorneys at Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC are here to help if you, or someone important to you, has questions about children with special needs, custody, parenting time, or support. Call us at 201-488-1161.

Contact Our Experienced New Jersey Child Support Lawyers

If you have questions about child support, you may need the guidance of an experienced family law attorney.

At Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC, our team of New Jersey child support lawyers are experienced, dedicated, and committed to help those going through very difficult times. Contact us today at 201-488-1161 for a legal consultation with our New Jersey Child Support Attorneys.