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Divorce and the special needs child

Children with special needs require unique consideration in a divorce.
Children with special needs require unique consideration in a divorce.

While all children need the continued support and care of parents, children with disabilities or special needs require unique consideration during divorce. As one would expect, there are considerable financial and caretaking responsibilities in these cases that should not be played down. Careful research and crafting of divorce agreements and decrees should be a priority in cases that involve special needs children.

Couples facing this challenge should prepare to do their homework in itemizing present and long-term needs and all associated costs to ensure that the futures of these children are secured. Taking time upfront on this aspect of the divorce agreement also goes a long way in enabling the family to transition and co-parent successfully going forward.

While child support payments are usually determined according to the family law code of each state, this support can be adjusted to meet special needs of the children involved.

Adjustments to standard financial support guidelines are typically based on factors, such as:

  • The specific needs of the child
  • The ability of the parents to contribute to the support
  • Financial resources available for this support
  • Child care expenses in order for the caretaker to remain gainfully employed. (Although care for the child may require a specially trained caretaker.)
  • The amount of uninsured medical expenses
  • Special educational care or therapies

In order to qualify or merit special adjustments to standard child support, a detailed budget should be created outlining specific expenses to be incurred in the “best interest of the child.” If the child will eventually be able to live independently and require less care, the decree should provide specific criteria for determining an alternate level of support in that situation.

This budget outline would specify exactly which expenses would decline if the child could eventually live independently and/or become gainfully employed. In such cases, however, the caretaker parent may still be required to provide substantial input and guidance, as well as supervision of attendants.

Besides financial support, couples should also consider developing their own unique parental possession schedule since the typical parental possession schedule may not be feasible for a special needs child. This may mean that one parent could be entirely or almost entirely responsible for the child’s care and management.

There is a clear financial impact on the primary caretaker that should be considered in establishing the level of financial support from the other parent. This may impact the caretaker parent's ability to work full-time if he or she must ensure the child is cared for properly around-the-clock, transported to medical appointments and therapy, etc. The caretaker’s need for respite must also be considered and addressed in the parenting plan and in associated costs.

While the agreement for possession of the child, his or her support and each parent’s rights and responsibilities is managed through the divorce decree, when the child graduates high school or reaches age 18, that agreement no longer applies. It is possible for that agreement to form the basis for the disabled adult’s continuing time with each parent through the Guardianship process.

When spouses are establishing their parenting plan as they go through divorce, this is the time to consider the disabled child’s short-term and long-term needs, support, caretaking and scheduled time with the non-caretaker.

Each divorce situation is unique, with its own set of circumstances and financial issues. The information in this column is meant to provide a guideline for individuals and couples working toward a fair and equitable divorce settlement. For specific legal and financial advice on divorce, please consult a board certified and experienced family law attorney and a certified divorce financial analyst for best results.

Join Patricia Barrett at her upcoming 2014 Houston Leisure Learning classes on Jan. 13 and Mar.10. She will also be presenting at the Guide to Good Divorce seminars in Houston on Feb. 1, May 3, July 26 and Sept. 27. For more information on divorce financial planning or divorce mediation, visit Patricia's website, Lifetime Planning.

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