Without a doubt, navigating a divorce can be overwhelming and challenging for both the partners and their children. For many parents, a common worry is how to protect special needs kids during a divorce. This will unavoidably take a toll on the child’s emotional health.
Roughly 3 million children struggle with physical, mental, or emotional disabilities in the U.S., such as autism, cerebral palsy, Down syndrome, attention deficit hyperactivity disorder, bipolar disorder, or learning disorders. Most special needs children require psychotherapy, speech therapy, medication, physical therapy, regular visits to a developmental pediatrician, or special education services.
While outdated studies claim that the divorce rate of couples with an autistic child is 80% higher have been debunked, the reality is that these couples still have a 10% higher divorce rate. This may occur because children with special needs require much more care and attention, which one of the parents may find too taxing and too much to withstand at some point.
The Emotional Burden of Divorce on Parents and Their Special Needs Children
Naturally, during a divorce and even when it is over, parents and their special needs child will undergo a period of sadness, uncertainty, and stress, which can eventually lead to depression. The custodial parent will face financial and emotional challenges throughout this delicate period.
Routine is essential for children with specific disabilities. With the help of a child specialist, the parent will explain the changes in their routine to the child.
Unfortunately, even if both parents can leave out their personal issues and focus solely on the wellbeing of their special needs child, providing them with everything necessary in terms of treatment and adjusting their routine, the child will still feel the echo of the divorce.
When it comes to the emotional burden of divorce, special needs children might also experience their emotions more intensely. They may experience more severe depression, have strong feelings of guilt, and, ultimately, have difficulties adapting to the new family dynamics, new school, and new living situations.
Navigating the Main Aspects of Divorces with Special Needs Children
If the spouses intending to get a divorce have a child with special needs, the separation process will be substantially more complex. The following are the main aspects that such divorces entail.
Monetary Support
Monetary support will be the primary area of focus and negotiation for divorces involving children. The court will consider each parent’s income, and a series of guidelines will drive the support order.
For couples with special needs children, the court recognizes that the custodial parent will face greater expenses for the child’s daily living, including higher medical costs. Consequently, a child support order for a special needs child is typically higher than the guidelines suggest.
Another significant difference in calculating monetary support for special needs children is the age of legal emancipation. The custodial parent may keep receiving child support for a child between 18 and 21 if they are “principally dependent” on the custodial parent.
Moreover, the child support order might continue through ages 22 and 23. Monetary support for a special needs child may negatively impact eligibility for benefits such as Medicaid and Supplemental Security Income.
Custody and Visitation of the Child
Legal custody concerns the right to decide the wellbeing of the child regarding education and healthcare. Physical custody is the right to decide about the child’s routine activities, including where the child lives.
Depending on various factors, the parents can have joint custody, or one of the parents will have sole custody. Parents with joint physical or legal custody share responsibilities and decision-making, whereas a parent with sole custody will be entirely in charge.
Parenting a child with special needs often requires regularly making more important medical, educational, and other crucial decisions. Most special needs children have to undergo speech or physical therapy and go to a special education school.
This makes it incredibly difficult to share legal custody of their children. For this reason, many parents with special needs children tend to decide who will have sole custody.
The second important decision concerns what parenting schedule best meets the child’s needs. Suppose the child has to receive frequent services, and only one parent has a flexible job to manage all the weekday appointments.
In this case, it will make more sense for that parent to have most of the parenting time during the week. Equal parenting-time schedules may not work sometimes.
Life and Medical Insurance
Perhaps the most beneficial and suitable form of securing money for a special needs child is a special needs trust. Unlike life insurance, a trust is a legal entity that, if correctly established, will receive, hold, and pay out funds to its beneficiary.
Before setting up a trust for your special needs child, you will first choose a trustee, who can be either a sibling or close family member, or a trustworthy professional such as a lawyer. When you create the trust, they will hold and distribute assets according to your agreed terms.
You should be aware that transferring assets to a child with special needs can be problematic even if they can function at a high enough level to live independently. The child’s substantial assets in their name can complicate qualifying for Medicaid or other assistance programs.
However, a properly designed trust can help avoid that issue because assets will not be in the child’s name – the trust holds and controls the assets, which are subsequently used to pay for the child’s care per your instructions.
As for health insurance, Medicaid provides multiple programs for children under 18 and over, each with different eligibility requirements. Nevertheless, most have income and asset limitations.
The insurance can be supplementary if the special needs child is covered under the parents’ main health insurance. If the child is eligible for Supplemental Security Income, they will also be eligible for Medicaid Standard.
Equitable Distribution of Assets
When it comes to equitable distribution of assets, some states do not specifically recognize the care of a special needs child. For example, equitable distribution jurisdiction applies in Florida, which means the court starts with a 50/50 split but subsequently applies numerous complex rules to determine which spouse receives what.
Things get even more complex in high-net-worth divorces where a special needs child is involved and a stay-at-home parent. It is not unusual for the parent’s earning ability to be impaired by the need to stay home and care for a disabled child.
The court might decide to award that parent with a greater portion of the assets to make up for the professional sacrifices and changes in lifestyle. In addition to financial assets, high-net individuals often have businesses, investments, artwork, and real estate subject to division.
Becoming a stepparent to a special needs child presents unique challenges. Here’s what you should know.
