Apr 03, 2021

Getting a Divorce and Have a Child With Special Needs? Your Planning Makes a Difference.

You are now going through a divorce and dealing with stress, emotions, grief and uncertainties. You and your children will be transitioning to a “new normal” life. You are concerned about how this transition is going to affect all of you, especially your special needs child. Will anyone understand the additional responsibilities and stressors in your life?

There are plenty of myths and articles claiming that parents of children with developmental needs have higher rates of divorce. On average, divorce rates are slightly, but not significantly, higher in families with a child with disabilities 1 . About 12.8% of households in the USA have children who use more medical care, mental health services or educational services than is usual for most children. 2 About 20% of all households in the USA have children with special needs, and the children’s needs increase with their ages. 3 Therefore, planning for your child’s future and your future becomes very important. The legal system will assist, but you need to be able to point out the areas where extra assistance is needed and why.

Four areas that need careful thought and planning:
1) Emotional impact of change;
2) Financial considerations;
3) The child’s transition into adulthood; and
4) The impact on the parent with primary caretaking responsibilities.

Walk yourself and your attorney through a typical day in the life of your special needs child and caretaking responsibilities. Pay attention to the details.

1) Emotional Impact : Children are very sensitive to their caretaker’s emotions. How stressed out and grief stricken are you and what impact is your emotional state having on your child? Get support and help for yourself. Some children are better able to handle going from one location to another (or one parent’s home to another) while others may not be able to handle the transitions in a healthy way, or the transition is impracticable. Is your child accustomed to one caretaker (you or the other parent) and how could that impact parenting time (formerly known as visitation)? These and other questions are important considerations when developing a parenting plan and parenting time. Do you and the other parent agree on the child’s disabilities and needs? The child’s needs should be the foremost consideration.

2) Financial Considerations : Child Support Guidelines allow the courts to set child support payments based on parents’ income and the time each parent has with the child. Child support guidelines are presumed to cover children’s needs and expenses in average households. However, courts can deviate from the guidelines based on demonstrated need. Think carefully about the unique and additional expenses you incur for your special needs child, many of which may be easily overlooked: medical equipment, prescription and non-prescription medication and supplies, vitamins, special therapies requiring out of pocket expenditures, and respite care so the custodial parent can have a break. How will payment of these expenses be shared between the parents? Understand SSI, Medicare, other government and private benefits that your child is receiving or may be entitled to receive. Those benefits may be considered, however, they do not obviate the parent’ obligation to contribute to the support of their child. Consider reaching agreements between both parents that reach into the disabled child’s long-term care and needs.

3) Child’s Transition into Adulthood : The Family Court establishes child support for minor children according to the child support guidelines until “emancipation” which in Illinois includes any child under 18 or any child 19 or younger who is still attending high school. 4 However, the Family Court may also award sums of money for the support of a child who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. 5 The sums awarded can be paid to one parent or paid to a trust created by the parties for the benefit of the child, provided, however, that the mental or physical disability existed when the child was eligible for support under the child support guidelines or under the statute providing for educational expenses for a non-minor child. 6 Additionally, you will need to consider obtaining guardianship over your adult child, which you would do by filing a Petition for Guardianship in the Probate Court. Ask yourself: should one or both parents be named as guardians? Do the parents communicate and cooperate on matters related to their adult disabled child? What will the parenting arrangements be, should special needs or other trusts or life insurance policies be established for the child’s current and long- term need? Is the adult child receiving all state or government benefits they are entitled to receive, and have proper measures been put in place to protect the benefits being received? Make sure you are considering long term needs and strategies for the days when your child is no longer a minor.

4) Impact on the Parent with Primary Caretaking Responsibilities : Let’s be straight: caring for a child or disabled adult child with special needs can be a full-time, perhaps a lifetime, exhausting responsibility, even if the experience is rewarding. A commitment by both parents to share caretaking responsibilities and to focus foremost on the child’s best interests is the best recipe for the child’s health and happiness. Caretaking responsibilities can impact the caretaker’s ability to work full-time or take on increased work-related responsibilities and therefor, obstruct earning potential. Consider this reality in your settlement agreements. Be realistic in your goals and your time commitments. Take care of yourself.