Divorcing When You Share a Child With Special Needs

According to federal data, an estimated 13 percent of U.S. children under 18 (about 9.5 million kids) have some special health care need. Parents of children with special needs face extra challenges, pressures and stress. Research suggests the divorce rate is at least slightly higher for these families.

All couples have their difficulties. But parents of children with special needs can spend a lot of time not only absorbed in a child’s physical care, but advocating, worrying, fighting with insurance companies, meeting with teachers and seeing doctors. It can be physically and emotionally exhausting.

If these parents decide it’s time to part ways with each other, it’s important to discuss all of the unique issues and circumstances of your situation with an East Brunswick divorce attorney.

Complex Concerns: Custody, Benefits and More

Children with special needs may be entitled to certain government benefits based on medical need and/or income. One of our primary goals in these cases is to help negotiate a divorce settlement or final resolution that isn’t going to disrupt the child’s benefits, health insurance, etc. That can be tricky.

For instance, New Jersey child support guidelines traditionally have the parent with primary custody receiving support directly from the other. However, that could cause trouble if your child relies on certain means-tested programs. Even though it’s paid to the parent, it could be considered an asset of the child, which would be factored in determining eligibility for certain benefits and government insurance plans (namely, Supplemental Security Income and Medicaid).

One way we could avoid this is having child support funds directed into a special needs trust rather than paid directly to the parent. These payments are not considered income or assets for purposes of means-tested programs like SSI and Medicaid insurance programs Children’s Health Insurance Program (CHIP).

Your lawyer should also carefully consider the unique concerns that arise in custody and visitation issues. For example, consistency and routine are essential to some children with special needs (particularly those on the autism spectrum). Ensuring both parents are on the same page on this is a priority. It’s also important to consider that most medical insurance only pays for one set of medical equipment. How are separating parents going to navigate that between homes? How will parents choose caretakers?

Other financial and legal considerations include:

• Alimony, particularly if one parent is putting off a career to be a caretaker to the child. Most alimony in New Jersey is only equal to the amount of time the couple were married but being a caretaker to a child with special needs may be an exceptional circumstance under which payments could be made longer-term.
• Detailed child support obligation agreements. These may last for the duration of the child’s life, but they might be modified with proof of a material change in circumstance.
• Clearly spell out medical decision-making authority, therapy and treatment schedules, etc. Having these sorts of considerations expressly written into the divorce settlements can help resolve some types of conflict before it starts.
• Consideration of ongoing medical and life insurance needs. It’s not uncommon for marriage settlement agreements in these cases to include a provision that one parent must maintain health insurance for the child. Many agreements also include provisions for both parents to maintain life insurance policies on themselves, with any payouts directed to that special needs trust to avoid loss of certain benefits.

Our team of East Brunswick divorce lawyers are knowledgeable, compassionate and dedicated to ensuring the best possible outcome for you and your child. We are available to answer your questions and offer free initial consultations.

Contact the East Brunswick divorce attorneys at Rozin-Golinder Law LLC by calling (732) 377-3367.