Divorcing When You Have a Special Needs Child – What You Should Know

Divorce is never an easy process and it becomes more complicated when children are involved and parents are considering how to structure custody, support, and visitation. If a child with special needs is impacted by a divorce, additional care must be taken to adequately provide for your child’s unique short and long-term needs. Unfortunately, a significant number of marriages end in divorce and anecdotal evidence suggests this figure is higher when a family includes a child with specific needs. Certainly, these families face unique emotional and financial demands, and often dedicate substantial additional time to advocate for their children, which can, in turn, impact the marital relationship. What we do know is that the number of court cases involving children with special needs has been rising significantly in recent years (Family Court Review, Vol 43, No. 4, Special Needs Children in Family Court Cases, Donald T. Saposnek et al.) As a parent of a child with unique needs, especially one facing the prospect of being a single parent or sharing a shared parenting arrangement, you may feel overwhelmed by the various aspects of the divorce process. Understandably, navigating the challenges of an ordinary day with your child takes priority, leaving little time to think about details of a divorce settlement and whether they might affect your child’s future care and well-being.  However, if you and your spouse ultimately have decided to separate, it is important to find the time to carefully consider your child’s needs so as to avoid making financial decisions that inadvertently may have a negative impact on you or your child’s care. What exactly does that planning involve? Custody agreements can be complicated, as you consider how best to accommodate your child’s physical needs and emotional wellbeing, both now and in the future. Similarly, considering the future financial needs of a child with disabilities is a critical concern during the divorce process. The way child support and any alimony payments to a custodial parent are structured and applied could have a negative impact on your child’s eligibility for critical government benefits that are based on financial need, such as Medicaid or Supplemental Security Income (SSI). The age of your child is important when analyzing financial supports that are available to provide for the child’s care.  If a child is over the age of 18 and considered disabled under the federal Social Security standard, for instance, the child could receive monthly cash benefits in the form of SSI.  Government benefits like SSI have income and resource limits for eligibility, and when a child is over the age of 18, a parents’ income and resources are no longer included when determining financial eligibility.  However, a child’s own income does count.  As a result, child support payments paid to a custodial parent for a child who is over the age of 18 will reduce the child’s SSI check dollar-for-dollar.  However, if child support payments are directed by court order to a “self-settled” special needs (one that reimburses Medicaid at the child’s death), that advance planning could allow the adult child to receive a full SSI monthly check while still benefiting from the child support payments now held in a special needs trust.  Because the Medicaid program also is based on financial need, it is important to consider how best to structure child support payments if one of the goals is to preserve eligibility for Medicaid or essential government benefits. When negotiating terms of a divorce, it also is important to consider how your child’s needs will be met when you or your spouse pass away.  First, determine whether a third-party special needs trust (with no need for a Medicaid reimbursement provision) is appropriate to manage a child’s inheritance long-term.  Planning ahead and establishing a third-party special needs trust as part of an overall estate plan can accomplish dual goals of holding assets in a trust to preserve benefits, like SSI and Medicaid, while simultaneously ensuring that funds are used to supplement your child’s needs and maximize his or her life options. However, achieving any or all of these objectives requires advance planning and a comprehensive assessment of your child’s current and future needs, along with careful resource projections and allocations. For more information, see our article on How to Provide for a Special Needs Child After You’re Gone. Finally, as you focus and plan for your child’s future well-being during a divorce, it is important that you don’t neglect your own needs.  There are various local community groups and a wealth of information online offering guidance and support for parents of exceptional children with specific needs. When it comes to navigating the complex legal and financial hurdles, you don’t have to go it alone. Attorneys affiliated with the Special Needs Alliance have specific skill and background in this area and are committed to helping individuals with special needs and their families.