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Divorce and Planning for Children with Special Needs

Lifelong Support

Raising a child with special needs is challenging. The stress of the situation can, in fact, contribute to the rise in the divorce rate among couples with children with special needs.

If a couple that has a child with special needs does divorce, extreme caution should be taken in planning for the future, with care taken by all parties to ensure that the child’s long-term needs are met. It is important to consider who will be responsible for making medical, educational, housing, and vocational decisions for the child post-divorce and who will be financially responsible for the related costs and to be certain that  those issues are specifically set out in the divorce agreement.

Parents should consider the effect a divorce will have on access to government benefits and whether child support payments will reduce the child’s eligibility for  Supplemental Security Income (SSI) and/or Medicaid. Medicaid, in many cases, covers a child’s therapeutic interventions such as physical, occupational and speech therapy.  It also may cover prescriptions, medical equipment, and nursing services.

Parents must also consider the educational needs of the child and who will be the one to make decisions and advocate for the child.  They should consider the possibility that  the child will need a long-term guardianship and whether any agreement on this should be considered now to avoid a contested guardianship later on.

In many cases, the use of a special needs trust can greatly enhance the quality of life for a child with disabilities post-divorce, and it is often possible to direct child support payments to such a trust that has been set up for the child’s sole benefit.

The divorce process is difficult in general, but when you are planning for a child who will need lifelong support, there are even greater challenges. It is imperative for special needs attorneys to get involved as early as possible when planning a divorce that will affect a child with special needs. It is important for parents, matrimonial attorneys, judges and special needs attorneys to work together to ensure that the child with special needs is protected in every aspect of life.