Special Needs Children and Divorce

Divorce agreements address child custody, visitation and support, as well as spousal maintenance and property division issues. The resolution of these matters is inevitably more complex when special needs children are involved. The uncertainty about the nature and cost of the child's future needs and expenses makes it more challenging to arrive at a consensus and draft a divorce agreement that will serve the parties well into the future.

In determining custody and access issues, parties and the court must address the particular needs of the child, and these may be difficult to determine with a special needs child. To further complicate matters, parents of special needs children often suffer through the classic stages of grief (i.e., denial, anger, guilt, bargaining, depression and acceptance) and as a result, they often differ with respect to their own perceptions of their child's diagnosis and needs.

Parents may become obsessive and controlling with respect to the child, or remain in denial about their child's diagnosis. Making decisions about educational,
health and treatment options is already complex as no one clear path is likely to emerge at each stage of development. Decision-making becomes even harder when parents maintain conflicting views of their child's needs. Further, special needs children often need consistent home environments, parenting styles, transitions, routines, care and treatment in order to thrive. Parents who are unable to cooperate may inadvertently undermine their child's care.

The Role of the Psychologist

A court will often appoint a forensic psychologist in addition to the attorney for the child when there is a custody dispute. [Editor's Note: For an in-depth study of how the forensic psychologist works, see the article on p. 3.] Reports submitted after consultation with those professionals involved in the child's care will be invaluable when helping parties arrive at an agreement that serves the child's best interests.

Parenting Plans

Post-divorce, joint decision-making regarding the child's care and education continues to require frequent and in-depth communication between co-parents. Adapting access schedules to best serve the child's needs as they change over time also requires cooperation and flexibility. Further, selecting and working with medical, therapeutic, benefits and education professionals can be a time-consuming, ongoing task without any clear choices.

Parents must take care to assess the particular needs of their child when constructing their parenting plans, thoroughly tailor their plans to accommodate these needs, and be willing and able to adapt their plans accordingly over time as their child develops. Parents of a special needs child need to become skilled at specialized caretaking, and may also need to ensure that both parents' homes are equipped to meet their child's needs. Parenting plans should be detailed and spell out essential information and instructions to ensure that both parents agree on the methods of managing the child's behaviors, treatments, diet, environmental needs or preferences.

Therapy or parenting classes may be helpful to parents of a special needs child, as may be the ongoing utilization of a neutral such as a parenting coordinator. A neutral person familiar with the parenting agreement, the family dynamics and needs, and the other professionals involved can reduce the potential for conflict between parents and resolve conflict more efficiently when it does arise. A parenting coordinator can be kept on standby to help with decision-making and communication, to help manage developments, modifications and agreements, and to serve as a “hub” for the various professionals involved in the child's life.

Financial Support

A child with special needs will require an extraordinary amount of financial support as well, the amount of which may not be predictable at the time of divorce. Many children leave home at 18, but a child with a disability or chronic illness may not follow this life course. Government benefits and legal child support obligations may terminate at this crucial age, while the custodial parent's need to support the adult child may continue.

If one parent is carrying the bulk of the caretaking burden, this parent's diminished capacity for earning income and contributing to retirement and investment accounts should also be considered when determining spousal support and property division issues. Furthermore, how does a custodial parent obtain support from the other parent to help with the expenses of a special needs child who is beyond the state cutoff age for child support? As stated above, parents of special needs children often do not agree on the severity of the child's disability or the reality of the child's need for support, and often one parent is less involved in the child's life.

When determining child support for the benefit of a special needs child, a court will likely need to deviate from standardized calculations and consider anticipated costs for medical care, prescriptions, therapy, special education, tutoring, medical and other equipment, adapted furniture, other treatments and supplemental needs.

Public Benefits

The public benefits available to the child, both before and after the child reaches the age of majority, must also be examined. Four relevant government benefits programs exist, including means-based Supplemental Security Income (SSI) and Medicaid, and non-means-based Social Security Disability Insurance (SSDI) and Medicare. It is possible for a special needs child to receive all four benefits at the same time.

SSI allows eligibility for food stamps, while Medicaid pays for medical and mental health services, as well as drug therapy and home and institutional services. Medicare is a form of sponsored health insurance available for the disabled, and SSDI is available to special needs children of an individual who has died, retired or become disabled. A special needs child who is under age 22 and who is not working can obtain SSDI benefits based on his or her parents' prior earnings.

With means-based aid, eligibility is based on financial need and, in the context of a divorce, it is critical to understand how in-kind versus cash support affects a child's eligibility. For children under the age of 18, income and assets held in the parent's name are relevant to determining whether a child is eligible to receive means-based benefits. Cash and certain in-kind payments to a custodial parent can reduce a child's SSI benefit. Once a child is over the age of 18, assets held in the parents' name no longer affect the child's eligibility for means-based benefits; however, assets held by the adult child in excess of $2,000 will disqualify him or her from SSI, and cash child support paid to the custodial parent will result in a dollar-for-dollar loss of SSI. It may also risk disqualifying the adult child from Medicaid at 18, and from Medicare at 20.

Planning Issues

Special educational services may be mandated by federal or state law and provided to a family at no cost. If a school system does not pay for all costs in connection with special education, parents must address how such out-of-pocket educational expenses will be paid for in the divorce agreement or parenting plan. Tuition, evaluations, tutoring, consultation fees and other expenses must be contemplated. The need for vocational, social, and adult living skills training, as well as the potential need for custodial care or guardianship, should also be discussed by divorcing parents in anticipation of the child's needs as he or she transitions from school age into adulthood and ages out of the educational system.

Parents may wish to set up a trust for the child during the divorce process or in their estate plans. A divorce financial planner can help project the cost of the child's future needs and provide advice as to how to fund and manage the trust so that the child's eligibility for public benefits is not impaired. Special needs trusts enable disabled persons to have an unlimited amount of assets set aside for their needs without disqualifying them from government benefits. Retirement plans, life insurance or other financial accounts, as well as lifetime gifts, can be directed to a special needs trust. Assets that flow directly to a disabled individual, e.g., if a parent dies intestate, could put eligibility for government benefits at risk.

Many states in the United States have laws that obligate parents to provide financial support for their child only until that individual reaches the age of 18 or 21 or until he or she graduates from school. Yet individuals with special needs often require financial support throughout their lives for expenses such as tutoring and private education, medical care and therapy, testing and assessments, vocational training, assisted living arrangements and supplemental income for basic living expenses.

Twenty-nine states have enacted legislation that requires parental support for special needs children to continue past the age of majority. Examples of such state legislation include the following: California Family Code ' 3910 states: “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.” Iowa Code ' 252A.3(3) states: “The parents are severally liable for the support of a dependent child eighteen years of age or older, whenever such child is unable to maintain the child's self and is likely to become a public charge.” Virginia Code ' 16.1-278.15 states: “The court may order the continuation of support for any child over the age of 18 who is severely and permanently, mentally or physically disabled, unable to live independently and support himself and resides in the home of the parent seeking support.”

The custodial parent may be able to get help via spousal support, which may not have a set termination point, yet which is intended to provide for the needs of a former spouse only. Still, parents who were never married cannot seek such support from each other through the court system. Moreover, while spousal maintenance may help, it is not always adequate to account for decreased earning capacity, the burden of the custodial parent's extraordinary
responsibilities, or the impossibility of this parent “catching up” should he or she reenter the workplace.

Conclusion

While the ultimate responsibility for addressing the issue of support for disabled individuals beyond the age of majority lies with the legislature, courts should recognize the increased expenses of custodial parents and diminished earnings capacity when making final determinations in connection with spousal maintenance and property division. However, many parents of special needs children will continue to negotiate or mediate their own solutions without legislative backing or judicial recourse.

Family lawyers must take into account the added complexities involved when their clients are co-parenting a special needs child. Each party's (including the child's) financial situation and future earnings capacity must be thoroughly and realistically considered at the time of divorce. Agreements must be detailed and tailored, with processes for dispute resolution and modifications outlined within. Above all, destructive and inflammatory adversarial practice must be kept to a minimum. It is critical for parents of special needs children to emerge from their divorce with the ability to communicate in a healthy and cooperative manner so as to prepare them for a potentially lifelong co-parenting relationship.

Sherri Donovan is owner of Sherri Donovan & Associates and professor at the Gordon F. Derner Institute of Advanced Psychological Studies at Adelphi University. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

While every divorce is difficult, divorce for parents with a special needs child can be even more so. Advances in treatment of newborns have dramatically increased the number of families that include a special needs child. “Special needs” can include life-threatening illnesses (such as severe asthma, food allergies and Type I diabetes), chronic and/or physical disabilities (such as cognitive or language delays, learning disabilities, attention deficit hyperactivity disorder, autism and Asperger's Syndrome), and mental and/or behavioral disabilities (such as anxiety, conduct or depressive disorders, and difficult temperament or emotional disturbance).

Caring for a special needs child is demanding and introduces an added strain to the parents' own relationship, which, based on my experience, increases the likelihood of divorce. Divorcing parents of a special needs child face additional challenges throughout the divorce process and after, especially when their child requires lifelong care and support.

Addressing the Issues

Divorce agreements address child custody, visitation and support, as well as spousal maintenance and property division issues. The resolution of these matters is inevitably more complex when special needs children are involved. The uncertainty about the nature and cost of the child's future needs and expenses makes it more challenging to arrive at a consensus and draft a divorce agreement that will serve the parties well into the future.

In determining custody and access issues, parties and the court must address the particular needs of the child, and these may be difficult to determine with a special needs child. To further complicate matters, parents of special needs children often suffer through the classic stages of grief (i.e., denial, anger, guilt, bargaining, depression and acceptance) and as a result, they often differ with respect to their own perceptions of their child's diagnosis and needs.

Parents may become obsessive and controlling with respect to the child, or remain in denial about their child's diagnosis. Making decisions about educational,
health and treatment options is already complex as no one clear path is likely to emerge at each stage of development. Decision-making becomes even harder when parents maintain conflicting views of their child's needs. Further, special needs children often need consistent home environments, parenting styles, transitions, routines, care and treatment in order to thrive. Parents who are unable to cooperate may inadvertently undermine their child's care.

The Role of the Psychologist

A court will often appoint a forensic psychologist in addition to the attorney for the child when there is a custody dispute. [Editor's Note: For an in-depth study of how the forensic psychologist works, see the article on p. 3.] Reports submitted after consultation with those professionals involved in the child's care will be invaluable when helping parties arrive at an agreement that serves the child's best interests.

Parenting Plans

Post-divorce, joint decision-making regarding the child's care and education continues to require frequent and in-depth communication between co-parents. Adapting access schedules to best serve the child's needs as they change over time also requires cooperation and flexibility. Further, selecting and working with medical, therapeutic, benefits and education professionals can be a time-consuming, ongoing task without any clear choices.

Parents must take care to assess the particular needs of their child when constructing their parenting plans, thoroughly tailor their plans to accommodate these needs, and be willing and able to adapt their plans accordingly over time as their child develops. Parents of a special needs child need to become skilled at specialized caretaking, and may also need to ensure that both parents' homes are equipped to meet their child's needs. Parenting plans should be detailed and spell out essential information and instructions to ensure that both parents agree on the methods of managing the child's behaviors, treatments, diet, environmental needs or preferences.

Therapy or parenting classes may be helpful to parents of a special needs child, as may be the ongoing utilization of a neutral such as a parenting coordinator. A neutral person familiar with the parenting agreement, the family dynamics and needs, and the other professionals involved can reduce the potential for conflict between parents and resolve conflict more efficiently when it does arise. A parenting coordinator can be kept on standby to help with decision-making and communication, to help manage developments, modifications and agreements, and to serve as a “hub” for the various professionals involved in the child's life.

Financial Support

A child with special needs will require an extraordinary amount of financial support as well, the amount of which may not be predictable at the time of divorce. Many children leave home at 18, but a child with a disability or chronic illness may not follow this life course. Government benefits and legal child support obligations may terminate at this crucial age, while the custodial parent's need to support the adult child may continue.

If one parent is carrying the bulk of the caretaking burden, this parent's diminished capacity for earning income and contributing to retirement and investment accounts should also be considered when determining spousal support and property division issues. Furthermore, how does a custodial parent obtain support from the other parent to help with the expenses of a special needs child who is beyond the state cutoff age for child support? As stated above, parents of special needs children often do not agree on the severity of the child's disability or the reality of the child's need for support, and often one parent is less involved in the child's life.

When determining child support for the benefit of a special needs child, a court will likely need to deviate from standardized calculations and consider anticipated costs for medical care, prescriptions, therapy, special education, tutoring, medical and other equipment, adapted furniture, other treatments and supplemental needs.

Public Benefits

The public benefits available to the child, both before and after the child reaches the age of majority, must also be examined. Four relevant government benefits programs exist, including means-based Supplemental Security Income (SSI) and Medicaid, and non-means-based Social Security Disability Insurance (SSDI) and Medicare. It is possible for a special needs child to receive all four benefits at the same time.

SSI allows eligibility for food stamps, while Medicaid pays for medical and mental health services, as well as drug therapy and home and institutional services. Medicare is a form of sponsored health insurance available for the disabled, and SSDI is available to special needs children of an individual who has died, retired or become disabled. A special needs child who is under age 22 and who is not working can obtain SSDI benefits based on his or her parents' prior earnings.

With means-based aid, eligibility is based on financial need and, in the context of a divorce, it is critical to understand how in-kind versus cash support affects a child's eligibility. For children under the age of 18, income and assets held in the parent's name are relevant to determining whether a child is eligible to receive means-based benefits. Cash and certain in-kind payments to a custodial parent can reduce a child's SSI benefit. Once a child is over the age of 18, assets held in the parents' name no longer affect the child's eligibility for means-based benefits; however, assets held by the adult child in excess of $2,000 will disqualify him or her from SSI, and cash child support paid to the custodial parent will result in a dollar-for-dollar loss of SSI. It may also risk disqualifying the adult child from Medicaid at 18, and from Medicare at 20.

Planning Issues

Special educational services may be mandated by federal or state law and provided to a family at no cost. If a school system does not pay for all costs in connection with special education, parents must address how such out-of-pocket educational expenses will be paid for in the divorce agreement or parenting plan. Tuition, evaluations, tutoring, consultation fees and other expenses must be contemplated. The need for vocational, social, and adult living skills training, as well as the potential need for custodial care or guardianship, should also be discussed by divorcing parents in anticipation of the child's needs as he or she transitions from school age into adulthood and ages out of the educational system.

Parents may wish to set up a trust for the child during the divorce process or in their estate plans. A divorce financial planner can help project the cost of the child's future needs and provide advice as to how to fund and manage the trust so that the child's eligibility for public benefits is not impaired. Special needs trusts enable disabled persons to have an unlimited amount of assets set aside for their needs without disqualifying them from government benefits. Retirement plans, life insurance or other financial accounts, as well as lifetime gifts, can be directed to a special needs trust. Assets that flow directly to a disabled individual, e.g., if a parent dies intestate, could put eligibility for government benefits at risk.

Many states in the United States have laws that obligate parents to provide financial support for their child only until that individual reaches the age of 18 or 21 or until he or she graduates from school. Yet individuals with special needs often require financial support throughout their lives for expenses such as tutoring and private education, medical care and therapy, testing and assessments, vocational training, assisted living arrangements and supplemental income for basic living expenses.

Twenty-nine states have enacted legislation that requires parental support for special needs children to continue past the age of majority. Examples of such state legislation include the following: California Family Code ' 3910 states: “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.” Iowa Code ' 252A.3(3) states: “The parents are severally liable for the support of a dependent child eighteen years of age or older, whenever such child is unable to maintain the child's self and is likely to become a public charge.” Virginia Code ' 16.1-278.15 states: “The court may order the continuation of support for any child over the age of 18 who is severely and permanently, mentally or physically disabled, unable to live independently and support himself and resides in the home of the parent seeking support.”

The custodial parent may be able to get help via spousal support, which may not have a set termination point, yet which is intended to provide for the needs of a former spouse only. Still, parents who were never married cannot seek such support from each other through the court system. Moreover, while spousal maintenance may help, it is not always adequate to account for decreased earning capacity, the burden of the custodial parent's extraordinary
responsibilities, or the impossibility of this parent “catching up” should he or she reenter the workplace.

Conclusion

While the ultimate responsibility for addressing the issue of support for disabled individuals beyond the age of majority lies with the legislature, courts should recognize the increased expenses of custodial parents and diminished earnings capacity when making final determinations in connection with spousal maintenance and property division. However, many parents of special needs children will continue to negotiate or mediate their own solutions without legislative backing or judicial recourse.

Family lawyers must take into account the added complexities involved when their clients are co-parenting a special needs child. Each party's (including the child's) financial situation and future earnings capacity must be thoroughly and realistically considered at the time of divorce. Agreements must be detailed and tailored, with processes for dispute resolution and modifications outlined within. Above all, destructive and inflammatory adversarial practice must be kept to a minimum. It is critical for parents of special needs children to emerge from their divorce with the ability to communicate in a healthy and cooperative manner so as to prepare them for a potentially lifelong co-parenting relationship.

Sherri Donovan is owner of Sherri Donovan & Associates and professor at the Gordon F. Derner Institute of Advanced Psychological Studies at Adelphi University. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.