Divorcing with a Special Needs Child? Some Tips…


by Joy Rosenthal, Esq.~One of the great benefits of divorce mediation is that you can create an agreement that is tailor made to your own situation. This is especially useful if you are divorcing with a special needs child. Here are some tips to keep in mind for the many decisions you will need to make.

Parenting Plans

Remember to take care of yourself. As they say on the airplane, put on your own oxygen mask first.

Are both parents adequately educated about the child’s needs? If not, what information is needed? What about the caregivers that the parents use – do they need any specific training or certification?

What is the nature of your child’s disability? Is she in a wheelchair? Does she need a special diet? Does she have a lot of doctor’s appointments? Are her special needs physical, behavioral, or both?

While joint physical custody may be fine for most children, assess how your special needs child will respond. How does she handle transitions? Do you both live close to the child’s school and medical appointments? Does she use special transportation to get there? Are both household environments appropriate to handle the child’s needs?

Does your special needs child have medical crises? If so, who will care for the other children when that happens? Create back up plans. Do you and your ex need to keep living close to each other for this reason?

While many mediation cases involve a neutral child specialist (usually a therapist with a specialty in child development), in this case, you may want to hire one who has a particular specialty in working with special needs children.

Do you and your ex agree about treatment for your child? What happens if you do not? Some parents engage the services of a parent coordinator, a medical service provider, or another trusted individual when they cannot agree. You could make a provision for such in your agreement.

Last but not least, make sure there is time built in for each parent to spend time with your other children. When one child needs so much attention, the others may get overlooked. Remember that divorce is a huge transition for everyone in the family.

Financial Considerations

Is it realistic for both parents to work? If not, spousal support may have to be extended so that your child’s needs can be met.

Is the standard amount of basic child support enough for the child’s needs to be met? When considering “add on” expenses, think carefully about the expenses your special needs child currently has and will likely have as she grows up, and how they will be paid for.

Is your child eligible for SSI or Medicaid? If so, you should consider setting up a Supplemental Needs Trust (SNT) to receive child support payments on behalf of that child in order to preserve those benefits.

How are the child’s medical needs being covered now? Is the health insurance the child will have post divorce as good or better?

It is important to plan for a time when you and your spouse are not able to care for your child. What will she live on? Who will watch over her?

The Special Needs Trust can help to maintain the child’s quality of life, while still allowing her to get benefits to meet her basic needs for food and shelter. How will it get funded? Do you want your agreement to state that you will each make a special provision for your child in your will?

Make sure you write a letter to a potential trustee or guardian to inform that person of your child’s special needs, medical history, and medical providers. But don’t stop there – also include information about your child’s talents and capabilities, her friends and favorite social activities, and aspirations.

Will it ever be realistic for your child to live on her own? If not, consider what other living arrangements will be possible. How will they be paid for? Will you each contribute equally or in some other fashion?

While child support is generally only ordered until the child reaches the age of majority (usually 18 or 21 depending on the state), in this case, it might be required for the rest of the child’s life.

Divorce is always a big transition for families, and it can be even more complicated when a special needs child is involved. By mediating, you have a good opportunity to create a tailor made plan that will support every member of your family.

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About Joy Rosenthal

Joy S. Rosenthal, Esq. is an experienced, caring New York City-based Family and Divorce Professional Mediator and Attorney. Joy founded Rosenthal Law & Mediation in 2006 to use both law and mediation as a tool to help families as they move through transitions. Her services include Divorce Mediation and Elder (adult sibling) Mediation, Adoptions, Collaborative Divorce, and representation in custody and visitation disputes. She also offers wills and estate planning. Visit Joy at www.joyrosenthal.com.

2 thoughts on “Divorcing with a Special Needs Child? Some Tips…

  1. Joy Borum

    Thank you for this article. I’m working right now with co-parents struggling to dissolve their marriage and make good decisions for their 3 children, one of whom has special needs. I’ve saved your article and shall share it.

  2. Lucille M. Espey-Francis

    In a recent divorce proceeding involving an adult dependent child, the reality of hurtful things said and done, of economic abuse and emotional abuse, there simply was not enough to go around. Your questions are excellent planning questions for mature adults who are behaving as parents. Unfortunately, adults do not always get to that point. The result is a long expensive and bitter struggle.


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