Divorce and Special Needs Children

Special Needs Kids & Divorce

by Bob Bordett~We know that the divorce rate among all couples for first marriage is about 50%, but there is no question that divorce rates are even higher among parents of children with special needs.

The resolution of legal issues, such as parenting time, child support, spousal support, property division are more complex when special needs children are involved because of uncertainty relating to the child’s future. Many times parents will have differing opinions of the child’s diagnosis and needs, which will add more conflict to the situation.

After the divorce is final there has to be on going communication between the parents. All of the above items add to the stress of the divorce.

This is where Mediation or Collaborative Divorce can be invaluable to parents of a special needs child – both during and after the divorce or separation process.

Special needs children have more expenses than a child without special needs. There is typically a need to consider therapy, as well as non-prescription medical expenses, in addition to more traditional medical expenses.

Special needs children often have the need for multiple types of therapy, such as occupational, speech, physical, and psychiatric therapy. In addition, special needs children may have the need for extra medical expenses that are non-prescription. Examples of these are: vitamins, nutriments, and other dietary needs, assistive devices, and specially equipped cars.

Realistically, it’s impossible to list every accommodation that may need to be made for the special needs child, as it varies from one family to another. The end of the marriage does not end the commitment to the child with special needs.

Child support tables in Georgia do not address the needs of special needs children, but other states may have different guidelines. It is important for any child support dedicated to a child with special needs to be allocated under the divorce agreement to a special needs trust so that the assets do not affect the child’s ability to receive government assistance. It is important that each parent have appropriate special needs planning in order to protect the child’s eligibility for assistance.

Special Needs Trusts

There are two types of special needs trusts.

First, there is the Third-Party Special Needs Trust.  This is designed to hold assets that are gifted or bequeathed to a person with special needs from a third party. The third-party special needs trust can be set up at any time to receive gifts or bequests from friends and family members.

The second type is a First-Party Special Needs Trust.  This type is designed to hold the assets already owned by someone who has special needs. It is created to protect the assets currently owned in the name of the person who is special needs. The first-party special needs trust can only be set up by a parent, grandparent, guardian or a court. It can only be set up for someone who is deemed to be disabled under the Social Security Administration definition.

Consideration must be given to financial planning, estate planning and parenting plans for the special needs child or children before the divorce decree is signed.

Below are some items to consider while going through the Mediation or Collaborative Divorce process with special needs children.

Investigate public benefits available to the child or children. Examine how these benefits may be affected by the child support and/or spousal support. Consider assets held in the name of the child or children.

Examine the parental obligations to provide financial support after the child transitions into adulthood. Items to think about; guardianship, eligibility for government or private agency benefits, employment, recreation, independent living, or custodial care. Remember that child support typically ends at the age of majority or when the child graduates from school, depending on the state.

The important thing to remember is if you use Mediation or Collaborative Divorce Process to get through the divorce, you will be making your own decisions, your own agreements and it will be your divorce.

There are many more items to be considered and it is highly recommended to seek the advice of professionals who work in this area.


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About Robert Bordett

Bob is founder of Collaborative Practice & Mediation Services, Inc. a firm providing financial analysis in divorce, and business mediation and a founding partner in Divorce Innovations. Bob is a Certified Financial Planner, Certified Divorce Financial Analyst, and Registered Mediator and Arbitrator with the Georgia Office of Dispute Resolution. Bob is a Founding Member of Academy of Professional Family Mediators, Past President of Family Mediation Association of Georgia, Past Board Member of Georgia Council For Dispute Resolution, National Association of Tax Practitioners; Past President of the Collaborative Law Institute of Georgia and a founding member of the Atlanta Collaborative Divorce Alliance.

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