Planning for Divorce and Children with Special Needs

 September 13, 2013
Posted by M&LAdmin4

Friday, September 13, 2013

Most people are familiar with the statistics surrounding marriage and divorce in the United States. According to 2010 vital statistics data, the marriage rate is 6.8 per 1000 population. The divorce rate, unfortunately, is 3.6 per 1000 – more than 50%.

Statistics surrounding divorce and families with special needs aren’t as clear-cut, however. Despite the popular belief that the divorce rate for families with special needs is as high as 80-85%, the results from studies conducted on families with special needs and divorce have conflicting results. One study that examined the link between families with children with autism spectrum disorder (ASD) has shown that the divorce rate is indeed higher, while another study on the same topic concluded that the divorce rate is not affected by having a child with ASD. A third study examining families with a child with Down’s syndrome concluded that the rate of divorce is lower.

What is true, however, is that every marriage can fall prey to the stress and challenges of everyday life. When a child with special needs is born, those daily stresses and challenges become amplified. Financial and extreme emotional stress that result from caring for a child with special needs can fracture a vulnerable relationship, and may be the catalyst that leads to divorce.

If you are considering or are in the process of obtaining a divorce, it is essential that you plan for your child with special needs before, during, and after the divorce proceedings. As parents of children with special needs, we know how vulnerable our children are to change and instability; it is important that parents work together as a team to minimize the impact that the divorce will have on your child.

Why Divorce is So Much Harder for Families with Special Needs

According to a MetLife Survey, 32% of parents with a child with special needs spend more than 40 hours per week – time equal to a second full time job – on special needs related issues.

Divorce, under the best of circumstances, is incredibly difficult. Dealing with finances, custody and legal arrangement issues as well as the emotional impact of dissolving a relationship is unbelievably difficult.  When a child with special needs is involved, everything is that much harder – issues such as custody and visitation are more complex, as the needs of the child may involve medical appointments, therapy, etc. that make scheduling complicated. Child support and property division can be challenging, as divorce may further strain finances that are already exhausted by the needs of the child. Typical child support agreements do not account for the expenses incurred by the unique needs of children with disabilities, and, financial plans must be prepared in such a way that the long-term interests of the child are protected, and to ensure that the child retains eligibility for government benefits in the future.

When this extra stress and pressure is added to the already challenging task of caring for a child with special needs (remember – 40+ hours a week), many people can become incredibly overwhelmed, emotionally exhausted and extremely stressed.

How do I Plan for My Child with Special Needs During a Divorce?

Here at M&L Special Needs Planning, we have experience with helping families with special needs plan for their children with disabilities during a divorce. Through research, and by drawing on this experience, we have compiled a list of considerations related to custody and financial issues surrounding divorce and children with special needs. We have also compiled a divorce and special needs planning checklist that may help you ensure that your child remains as unaffected as possible by the change in family dynamics.

Custody and Visitation

Most typical custody and visitation schedules include a parent who has primary custody, and a parent who has evening, weekend, over night and/or vacation visitation. This typical custody/visitation agreement may not suit the needs of your child. For example, how will the child react to the change in environment? Will the child be negatively impacted by the instability that comes with visitation? How will medical appointments, therapy, tutoring, etc. be affected by the new schedule? Does your child have medical equipment that needs to accompany him or her on visitation? How far away is the home of the parent who has overnight visitation; is this location close to medical professionals? All of these considerations (and more depending on the child involved) need to be examined before arriving at a custody agreement; ensure that all attorneys involved in the divorce agreement are familiar with the needs of your child before a custody agreement is entered into. It may be helpful to create a “typical day” in the life of your child so that all parties are fully aware of your child’s daily routines and schedules.

Financial Implications of Divorce – Protect Your Child’s Financial Future

The financial implications of divorce for families with special needs are incredibly important – remember, until the child with a disability is 18, the amount of child support that a parent pays for that child can be unlimited. Once a person turns 18, special needs or not, legally he/she becomes an adult. For a child with special needs who is 18, child support now is considered “unearned income” when taking into consideration the government benefit of Supplemental Security Income (SSI). If the child support is more than $730 per month for 2013, the young adult with a disability will be found ineligible for government benefits of SSI due to too much unearned income.

One way to continue to provide financial support for a child with special needs while continuing to protect his or her eligibility for government benefits is to establish a special needs trust. At the age of 18, the child support can be redirected into this special needs trust.

A special needs trust is the only legal way for an individual to have the benefit of unlimited extra income, without losing government benefits. It is designed to supplement, not supplant, government benefits. If written correctly, it will provide financial assistance for any care above and beyond what the government provides.   It is absolutely imperative that the trust be written correctly, therefore parents must work with an attorney who understands and has experience working with families with special needs. For more information on special needs trusts, please click here.

Divorce and Special Needs Planning Checklist

The most important thing to take away from this blog is the realization that as you go through the process of divorce, planning is essential for the well being of your child with special needs. The needs of the child now and in the future have to be considered, and a well thought out plan can save stress and conflict. For example, healthcare needs – who is responsible for attending the medical and therapy appointments of the child? Who takes care of planning for education and transitioning? What happens to the child in the event that one parent dies? Below, we have created a checklist that can help you organize and plan for your special needs child.

–       Plan for finances before, during and after the divorce. This plan should include childcare support after the child turns 18, in the event that he or she cannot financially support him or herself. Investigate special needs trusts so that the child will retain eligibility for government benefits, and factor in future housing and medical needs for the child.

–       Create a plan for the medical needs of your child. Who pays for what in the event of a medical emergency? Do you have adequate insurance policies in place? Who is primarily responsible for taking the child to appointments, and communicating with medical professionals? Creating a medical plan of action can help clarify parental responsibilities and ensure that everyone is in the loop with the child’s medical needs. As well, review emergency contact info to ensure if reflects new addresses, contact info, etc.

–       Create a plan in the event that one (or both) of you die. Update and review any plans that you have made for your child in the event of the death of one or both parents to ensure that it is reflects the changing circumstances of the family. Confirm that the child has a guardian in place, and that there are funds established for the financial support of your child after you are gone. Create a Letter of Intent that helps the guardian understand the unique needs of your child, and will allow the guardian to assume responsibility and care for the child as smoothly as possible. All information relating to the medical needs of the child, contact info for all professionals giving care to your child, as well as important legal and financial information should be included in this letter of intent.

–       Create a parenting plan that reflects the needs and wants of both of the parents and the child. Sitting down together to create a parenting plan can help parents understand each other’s hopes and dreams for their child, and will also help parents reach an understanding of the child’s needs and capabilities. This parenting plan can lead to a parenting philosophy that will help with decision making after divorce – if you are familiar with each others parenting philosophy, and have reached agreement on parenting issues then it is easier to make solo decisions that reflect the wants of both parents, and avoid the “well mom/dad said it was ok” discussion that may arise if you aren’t both on the same page.

–       Plan for new romantic relationships. Not everyone is familiar with caring for children with special needs. When parents look for childcare for their children with disabilities, they ask a number of questions: is this person equipped to handle the child’s unique needs? Can this person respond in the case of a medical emergency? These same questions may arise if you child is left in the care of your ex-spouse’s new partner. Discuss your expectation levels in regards to new relationships and care giving ahead of time – this may possibly eliminate, or at least minimize, conflict down the road.

Confused? Frustrated? Not Sure Where to Start? We Can Help!

If you are currently going through a divorce, have a child with special needs, and need help with any stage of the process please contact us! We are experts at financial planning for families with special needs, and are familiar (through personal experience) with the unique challenges that arise from raising a child with a disability. We can help you with everything from planning and establishing the special needs trust, to creating a Comprehensive Special Needs Financial Life Plan which will allow you and your spouse to plan for the financial future of your child with special needs after the divorce. We can even recommend attorneys and other professionals who are familiar with and have experience working with the unique needs of families with special needs. We can also provide guidance with estate planning, creating the Letter of Intent, and helping your child through periods of transitioning, and to achieve independent living.

Thank you for taking the time to visit our blog today! We hope that our article has provided you with some clarity and understanding of a topic that can be stressful and overwhelming. It is important to remember that you are not alone in the struggle, and help is only a mouse click away.



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