What is Required for Planning for A Special Needs Child During Divorce?

special needs child during divorceThere are very few things that are harder to deal with when going through a divorce than planning for your children’s future when you have a special needs child. The burden of supporting your child on the day-to-day basis can fall squarely on your shoulders as the parent with the majority of parenting time. The daily living and special moments may test your self-confidence to parent your child alone.

A pending divorce that involves a special needs child brings up unique issues of decision-making, parenting time, and also property division that can become more complex to negotiate. During the process of your divorce, you must consider what your child’s special needs entail and work with your attorney to determine what a day would be like caring for your child, particularly from a financial standpoint.

The State’s child support guidelines don’t normally address the extra expenses that come with a child of special needs, but there are special laws that allow for additional support above and beyond percentages of income. There may be a need for special medical care, therapy services, medical equipment, nutritional needs, and even paid respite care for the parent who has been awarded the majority of parenting time with the child. The uncertainty of the future costs makes it difficult to estimate the related expenses of a special needs child during a divorce.

Legally, the goal is to identify what the child’s best interests are and to understand them. Some examples include:

  • Who will the child live with?
  • What amount of contact will the parents or other parties have with the child?
  • What amount of child support will be paid to the parent who is caring for the child for the majority of the time?
  • Are there going to be transportation issues relating to the parenting schedule?
  • How will the parties share medical expenses and other costs that go above and beyond just daily needs?

The devised parenting plan should spell out all pertinent information and instructions on the special needs child’s care, daily routine, medications, and safety plans. A great staring point would be to look at how much you and your ex agree concerning your child’s disabilities and abilities. Additionally, when putting together a divorce agreement, special attention must be paid to parenting arrangements, estate planning, and the child’s eventual transition into adulthood. Legislation and case law are always evolving in this area and more family attorneys are dealing with an increasing amount of cases involving a special needs child.

In a divorce decree, it is important to discuss with your attorney the unique issues that come up in the child’s transition into adulthood. These may include:

  • Guardianship
  • Recreation
  • Social skills
  • Independent living
  • Custodial care

In most cases, child support and custody (now “parental responsibilities” in Illinois) end at the age of majority, or when they graduates from high school. The Court does, however, have the ability to extend child support beyond high school for students attending college or for children with special needs. Divorcing parents of a child with special needs, particular those who have severe impairments, face the reality of life-long care giving and co-parenting beyond just age 18

When considering spousal maintenance and child support, you need to think about the child’s eligibility for public benefits as a minor and as an adult. It is very important that your family law attorney work with a special needs attorney and an experienced financial advisor to eliminate the possibility of forfeiting the child’s benefits. It is not always known how child support payments made to the custodial parent will affect, negatively or otherwise, government programs like SSI and Medicaid. Support of any kind should be considered to preserve government benefits. It is imperative to consider these issues during the divorce proceedings. Finally, it would be wise to speak with an experienced estate planning attorney, as special needs trusts can be established and both parents can be required to contribute to a trust within a divorce agreement, as well as be ordered to maintain life insurance benefits naming the child’s custodian or trust as the beneficiary.

Managing the care of a special needs child is a full-time job. The effects it can have on the income of the custodial parent should be considered when deciding the amount of maintenance or support. Because caring for your child with special need may extend past the age of majority, you need to have your divorce agreement tailored for the long term. Use special needs trusts in tandem with public benefits. Effectively channel support obligations and tailor parenting plans within the divorce settlement to provide fully and adequately for your special needs child.

Make the system work for you by taking a hard look at what special needs exist and how they are addressed during your divorce. The family law attorneys here at Sherer Law Offices can guide you during this difficult process and give you all the advice you need to make sure that the future of your special needs child is taken care of fully.

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