There are few challenges more difficult than going through divorce and having a special needs child. As a divorced, single parent of a beautiful special needs daughter, I can tell you that you realize immediately that the burden of future planning, well-being, and protection fall squarely on your shoulders as a custodial parent. It is the daily living and ordinary moments that test your self reliance and capacity to parent alone. When there is a special needs child involved in a divorce, issues of child custody, visitation, and support and property division are significantly more complex to negotiate. As part of your divorce, make sure your attorney knows what your child’s needs are and walk them through a “day in the life” of you and your child.
“Special needs are often determined following categories that the public education system considers eligible for special education services, including autism, physical limitation and health impairment, emotional disturbance, learning disability, and developmental delay, among many others.”1 In structuring a divorce agreement, special care must be given to several areas of planning as well as to the special needs child’s transition to adulthood. Legislation and case law are evolving in this area as more family lawyers deal with a burgeoning number of cases involving special needs children.
A typical visitation schedule used in most divorces may not be appropriate for your family. Special needs children often require consistency, structured lives, and familiar routines. Unless your ex-spouse visits your special needs child on his/her own “turf,” you have to plan for travel. It is important to determine how your child will travel (e.g. with a care giver, with your other children or with you). You may have special equipment to send back and forth because insurance usually covers one apparatus of its kind at a time. You may have to be flexible because of health issues and maintain proximity to familiar medical professionals.
You and your ex-spouse may have different visions as to what your child’s disabilities and abilities are. A parenting plan should spell out essential information and instructions. Your ex-spouse may not be familiar with managing behaviors, giving medicines, monitoring consistency of foods, adapting physical surroundings, or understanding specific preferences of your nonverbal child. Details become paramount in communicating with your ex-spouse concerning not only your special needs child, but also your other children. The dynamics of your other children undoubtedly are affected by the amount of your time, energy and attention required by your special needs child. While not intentional, it is important for both parents to make a commitment to spend one-on-one time with your non-special needs children so they too can feel important.
Caring for a special needs child is expensive. Most standard court financial affidavit forms and child support calculations do not account for any of these expenses, so deviations from the guidelines are usually warranted. Some state statutes or case law may continue the support obligation of both you and your ex-spouse for the lifetime of your (adult) child.
Child support expenses may include therapy, medical equipment, medication, nutritional supplements, dietary restrictions, modifications to the family home and car, relief care and other care givers, elective surgery, as well as highly specialized medical professionals who may be out of network. There are also expenses for medical and life insurance and the child’s special educational needs.
If your child receives special education and is on an Individualized Education Program (IEP), the school does not need to obtain the signature of both parents on an IEP, even if you have joint custody. It is important to discuss whether both parents should be required to sign an IEP or whether only one parent should exercise this power for practical reasons. The divorce agreement should include cost sharing of additional educational expenses, such as independent evaluations, tutors, consultation, advocacy, legal fees, and other support services for your child as he/she transitions out of the educational system.
In structuring a divorce agreement, care must be given to unique issues that arise in your child’s transition into adulthood, such as guardianship, eligibility for quasi government or private agency benefits, employment, recreation and social skills, independent living, or custodial care. Typically with developing children, child support and custody end at age of majority or when they graduate from college. Divorcing parents of children with special needs who have severe impairments face the reality of life long care giving and perhaps, co-parenting.
Public Benefits Planning
Your child may be eligible for Supplemental Security Income (SSI), which are cash benefits for individuals with disabilities. Alimony and child support payments need to be structured in consideration with your child’s benefit eligibility. It is essential that your family law attorney works with a special needs attorney and experienced financial adviser to eliminate risk of forfeiting your child’s entitlements. In most states, loss of SSI also causes loss of Medicaid, which provides for your child’s medical coverage, including important drug therapy and home or institutional services that help your child and yourself. Divorce attorneys do not always know how child support payments made directly to you as custodial parent interact (negatively) with “means tested:” government benefit programs like SSI and Medicaid. In-kind support for alimony and/or child support, or as a combination of in-kind support and cash payments, may be mandatory to ensure intended outcome. It is critical to address these issues during your divorce.
Spousal Maintenance (Alimony)
You need to consider if managing the care of your special needs child is your full time job. “The primary caregiver parent not only provides daily care to their special needs child, they also manage doctor appointments, therapy sessions, and treatment regimens. They also research and secure funding for the special needs child’s expenses, maintain the funding year after year and track the family’s medical insurance reimbursements. Since many of these activities can interfere with the primary caregiver parent’s employment, they often may find it difficult to maintain a full time job. Due to these challenges, the primary caregiver parent’s income earning potential is often compromised. This should be a factor when determining whether spousal maintenance is required.”2
You must tailor your divorce agreement for the long term. Use appropriate special needs trusts, in coordination with public benefits and in contemplation of gifting plans and long-term care insurance. Maximize your estate planning and your financial health to protect your special needs child’s current and future needs and interests. Your retirement plans, life insurance or any other financial accounts where you designate your child as a beneficiary, and any lifetime gifts or bequests by anyone in your family, should be directed to a special needs trust or a supplemental benefits trust. These kinds of trusts complement government programs. Effectively channel support in your divorce settlement to provide for more quality of life expenditures for your special needs child. Make the system work better for you and your special needs child by taking a practical look at what special needs are and how they are relevant in the arena of divorce.
1 The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases, by Margaret (Pegi) S. Price, April 24, 2009, American Bar Association
2 ClearviewDivorce.com Blog, “Special Circumstances: Why Divorce with a Special Needs Child is More Challenging”, June 24, 2011
FPA Member Lili A. Vasileff, CFP®, CDFA™, is President of the International Association of Divorce Financial Planners and President of Divorce and Money Matters, LLC.