Contentious vs. Collaborative Divorce
With everything mentioned above, the “ideal” divorce process would be a collaborative one. In this case, both parties mutually agree on an effective division of time and resources. Generally, divorce causes a unique level of emotional trauma on healthy children, especially when the split is contentious.
A child with special needs may very well have an increased level of emotional trauma simply because they are already carrying the weight of their disability. Taking the time, with patience and compassion, to structure agreeable terms, will lessen the amount of emotional taxation on everyone affected by the divorce. An added perk to having a collaborative divorce process is a decrease in legal fees as less time will be spent battling in court proceedings.
Special Needs Trust
During your collaboration efforts, it is imperative to include the assistance of an attorney who directly handles special needs cases. This expertise is crucial when determining how to structure the best plan for the child’s long-term care. This plan will likely include a trust with a designated trustee appointed to manage funds and disperse them properly for the care of the child.
Regular divorce attorneys may not possess this level of expertise. Developing a trust for a child with special needs, if structured properly, may reduce the risk of other government benefits being affected. A properly structured trust should also allow for the custodial parent to receive alimony and child support payments without effect on other benefits.
Again, this should be discussed with an attorney. It may also be beneficial to include a professional financial planner in these discussions. Keep in mind that the trustee and the designee or rep payee of the government benefits may not be the same person. These matters should be worked out during the divorce proceedings.
Alimony & Child Support
In addition to the normal factors that are involved when determining who pays whom, such as physical custody and income and earning potential, having a special needs child will also raise factors such as medical procedures, medications, childcare costs, special transportation and medical equipment costs and maintenance.
All of these variables must be weighed into the decision of to whom and how payments will be allocated. Once custody is decided, and associated care costs are determined, the parties, and their attorneys, can design a support structure that is effective for the long-term care of the child. Keeping in mind that this term may carry over into adulthood, dependent upon the level of disability.
These funds would typically be paid into a trust fund that has been set up for the child so that those monies would not have a negative effect on any government benefit the child may receive. The attorneys involved can provide the best course to take in these instances.
Custody & Visitation
There are many factors that will be considered when determining who will get physical custody of a child with special needs. Some of those determining factors, assuming both parties desire to have custody, are income and means, handicap accessible living space, outside influences on time and resources, potential for neglect, abuse or harm, and to some degree, the child’s wishes. In most cases, the parent who is best prepared to provide proper care will be the parent awarded custody.
Once custody has been determined, the right to visitation will be reviewed. Generally, judges review the cases presented to determine what is in the best interest of the child, including any evidence-based complaints that could be detrimental to the child’s welfare and the person’s ability to provide proper care during visitation.
Estate Planning & Guardianship
Because tensions can run high during a divorce, estate planning and guardianship discussions will already create additional stress. When you add in the care of a special needs child, some of this is stress is because of the potential financial impact on both parties, and the likelihood that the custodial parent may anticipate feeling isolated, alone, and overwhelmed.
Despite this, it is imperative to craft a well-designed estate for the child and to discuss contingency plans, during the divorce process. These plans must include what will happen with the child, and their estate, should the custodial parent no longer be able to provide care, such as in the case of death or severe illness. The case of beneficiaries of each estate should also be well planned out.
Consult a Lawyer
As mentioned earlier, it is crucial to enlist the assistance of an attorney who is skilled in the unique needs of a disabled child. Your divorce attorney may have limited knowledge and understanding where this is concerned. It is not advisable, and will be doing an injustice to the divorcing parties and the child, to not involve competent and capable representation during this time.
Divorce, in and of itself, is going to prove difficult enough. Considering the totality of what your special needs child will require moving forward is going to need to be a large portion of your thoughts and plans. Remaining collaborative in these plans, at least with what concerns the child, will make the process much easier and much less stressful.