One of the most challenging types of divorces are those that involve children with special needs. Children with special needs usually require additional care, emotional and physical support, and financial needs than children with no special needs or disabilities. In the majority of cases, the daily care and support typically fall more solely on the custodial parent, which often causes more emotional distress and financial hardship for that parent.
As with any divorce, decisions need to be made regarding who the child will live with, visitation schedules, spousal support, child support, and more. Divorces involving a child with special needs, however, require additional and special consideration in addition to custody, visitation, and support. While these are standard concerns in any divorce involving minor children, they are much more complex when there are special needs children, and must address the child’s future needs as well as current, such as:
- Available public benefits and limitations
- Functional needs
- Life insurance
- Medical needs
- Property inheritance
- Social security and Supplemental Security Income (SSI)
- Special needs trusts
- Structure of child support
One of the most complex elements of divorces involving special needs children is child support. Children with special needs have an increased need for medical care, services, equipment, medication, nutritional needs, parental respite care, and more. Estimating future disability needs and care expenses can be challenging in divorce agreements, and depending on the child’s disability or needs, can extend well beyond the child turning 18 years of age.
Careful consideration must be given to child support, as oftentimes child support can jeopardize the child’s current and future public benefits. Minor children with disabilities are subject to “deeming rules,” which identifies parents’ income as a “resource” for the child, threatening eligibility for public benefits. Combined with child support payments, the custodial parent’s monthly income may exceed the maximum allowable income for the child to receive public assistance and medical care.
To address this, appropriate special needs trusts are often established in coordination with public benefits, long-term care insurance, financial gifts and inheritances. Typically, the courts must order that child support be funneled into special needs trusts in order to protect the child’s medical needs and care, and overall quality of life now and in the future. Child support paid into special needs trusts do not affect the child’s social security or Medicaid benefits.
Additionally, special consideration needs to be given to the child’s transition into adulthood if the child is a minor at the time of the divorce. Many special needs children require guardianship and care far beyond age 18, and often lifelong for those with severe impairments. Decisions must be made in the divorce agreement to establish guardianship or co-parenting, public and private benefits eligibility, independent living, employment, custodial care, and any other relevant issues.
It is imperative that you work with an attorney experienced in handling divorces involving special needs children in order to preserve these needs and the child’s entitlements and public services. Depending on your circumstances, your attorney may also want to include a financial advisor regarding the best options for the child’s extended care and future needs, both currently and after your passing.
Whitehouse Divorce Lawyers at Martin & Tune Attorneys at Law Help Establish Divorce Agreements Protecting Children with Special Needs
Divorces involving children with special needs require additional consideration to preserve the child’s care and support, now and in the future. The Whitehouse divorce lawyers at Martin & Tune Attorneys, LLC, are keenly knowledgeable and experienced handling divorce cases involving special needs children and will guide you on decisions and agreements that provide the best and most comprehensive care of your child. Call us today to schedule an initial consultation at 908-534-9091 or contact us online. We serve clients in Whitehouse, New Jersey and throughout Hunterdon County, Monmouth County, Whitehouse, and Tewskbury.