Special Considerations for Special Needs Children During Divorce

Each year, approximately 6,000 children born in the U.S. have Down Syndrome,[1] as many as 5Boy with Developmental Disability out of every 100 children in school may have Attention-Deficit / Hyperactivity Disorder (AD/HD) [2] and autism now affects 1 in 68 children.[3]  The emotional and financial toll of caring for a disabled child can be overwhelming, even for the strongest of families.  As such, the added stress of a divorce can leave parents unwilling or unable to focus on the child’s unique circumstances in order to ensure the uninterrupted continuation of care, emotional and financial, for a disabled child.

Outside of typical child support for the payment of food, clothing, entertainment and other living expenses, divorcing parents of disabled children should consider additional financial support and arrangements for the child:

  • Medical Costs.  On average, families with disabled children spend thousands of dollars annually in uninsured medical expenses [4].  Therefore, it is imperative for divorcing spouses to address the payment of medical expenses, including but not limited to, health insurance premiums and deductibles, uninsured medical expenses and alternative/non-traditional medical treatment.  Parents should also consider the entry of a Qualified Medical Child Support Order (“QMSCO”) which allows and alternate recipient to receive benefits from the participant’s group health plan.
  • Special Needs Trust.  A Special Needs Trust can be created to provide benefits to, and protect assets of, a disabled beneficiary.  Parents should consider working with their lawyer and estate planner to create a Special Needs Trust to protect the child’s ability to receive Supplemental Security Income (SSI) and Medicaid benefits.
  • Life Insurance.  Some states, including Illinois, currently provide that child support can be secured by a life insurance policy.  In addition to life insurance to cover basic support needs, parents may consider negotiating for a policy which would also cover the child’s medical expenses in the event of the obligor’s death.

In addition to financial matters, the parenting matters involving a disabled child also bring about unique considerations:

  • Team Effort.  Raising a child with a disability is a team effort. The “Team” usually consists of extended family, doctors, therapists, school personnel and childcare providers.  A divorce is not the time to “shy away” from the Team for emotional, financial and moral support.  In fact, the Team can be an invaluable resource to parents during a divorce especially during custody disputes.
  • Communication.  Every child will handle news about their parents’ divorce in their own way.  In consideration of the child’s disability, parents should set clear parameters for telling the child about the divorce including the timing, location best suited, who will tell the child (individual or team approach) and the extent of information about the divorce that will be shared (age or developmentally appropriate).
  • Parenting Schedules.  The parenting schedule is arguably the most important issue for divorcing parents.  While “cookie cutter” parenting schedules may work for some families, they do not work for children with disabilities since these schedules do not take into consideration the child’s unique needs. For example, a parenting schedule with numerous transitions between households or scheduling changes would not be ideal for an autistic child.   Similarly, transitions around meal time may be problematic for children with diabetes or a gastrointestinal disease.  The goal is to design a schedule for the child which provides quality parenting time but prioritizes the child’s needs (i.e. medical concerns, physical and/or mental limitations).  Parents should talk to their lawyer about various parenting schedule options including “nesting” (i.e. where the child remain the home and the parents rotate in and out), graduated parenting schedules, gradual schedule changes, and, in some cases, supervised parenting time.

Ensuring that the child’s special needs are addressed during the divorce process is critical to the child’s successful adjustment to their post-decree life.

[1] Source: www.cdc.gov

[2] Source: National Dissemination Center for Children with Disabilities

[3] Source:www.autismspeaks.org

[4] Source:www.futureofchildren.org, Children with Disabilities Journal, Vol.22, No.1, Spring 2012

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