Divorce and the Special Needs Child

A divorce where a family has a special needs child is immediately more complex than that of a “typical” divorce scenario. A child is normally considered to have “special needs” if he or she qualifies for special education services from school. Conditions such as autism, learning disabilities, certain physical or mental health impairments, developmental delays, emotional problems, and hearing and visual impairments are typically considered “special needs.” These issues present unique challenges in divorce cases, and must be carefully considered when considering custody arrangements, child support and equitable distribution. Moreover, a typical divorce agreement does not consider the child’s transition to adulthood, which may not be the case where special needs children are involved.

Share the Details

Be certain that your attorney understands all of the details about your situation, and all the implications of your child’s special needs. Try not to simply relaythe the child’s diagnosis;  instead, walk your attorney through a “typical day” in your life, so that he or she may more fully understand the situation. Furthermore, be certain that your attorney is aware of all of the expenses associated with caring for your child. Outline in detail all “special needs” related services, such as therapy (occupational, speech, psychotherapy), medications, the need for special medical equipment such as cochlear implants, supplements, home modifications, and respite care for the primary care-giver. Communicating these details is extremely important in educating your attorney, so that he or she may properly structure spousal support, child support, alimony, custody arrangements and “equitable distribution”.

Coordinating Care

happy mom showing something in book to son in wheelchair

Raising a child with special needs may be extremely time consuming. The custodial parent likely has cumbersome responsibilities, such as coordinating doctor’s appointments, scheduling therapy, and dealing with insurance companies and governmental agencies to attempt to secure benefits for the child. These additional tasks may make it difficult for the primary caregiver to a maintain employment.

In addition, coordinating the care of a child with special needs requires a high degree of collaboration. If the divorcing parents’ relationship is contentious, a court-appointed parent coordinator may be necessary to assist with day-to-day planning.

Support and Other Benefits

In certain instances, child support may be paid directly to the trustee of a special needs trust in order for benefits such as Social Security, Supplemental Security Income and Medicaid to be maintained. A Special Needs Trust is a type of trust document (a right of property held by one person for the benefit of another) intended to allow financial resources to remain available to assist a disabled person who receives, or may later receive, Medical Assistance (MA) or Supplemental Security Income (SSI). For more information on Special Needs Trusts, click here. The fact that a child isn’t currently receiving public benefits isn’t necessarily an indication that he or she is currently ineligible for benefits, or may become eligible when the child turns 18. In addition, as some children with special needs may never become emancipated from their parents, the divorce agreement or judgment must include the time period beyond the child’s achieving the age of 18. Although child support obligations normally terminate when the child turns 18 or graduates high school, that is often not the case where a child has special needs.

Scott Bonebrake practices family law in Media, PA, and has been a licensed attorney for 24 years. Please feel free to contact Scott if you have any legal questions, including those regarding divorce and the special needs child. You can reach Scott at 610-892-7700, or at sbonebrake@noelandbonebrake.com.