Divorce Advice for Special Needs Families

FacebookTwitterPinterest

By Holly Bortfeld

While it’s never ideal for a family to break up, especially when there is a special needs child involved who generally requires more support, sometimes divorce is necessary. In addition to the standard woes and challenges that divorce brings to every family, families with children with special needs may also benefit from the following information.

Before we begin, it is important to remember while it may be your goal that your child recovers enough to live on their own, you need to hope for the best but still plan for the worst.

Yes, your state may offer appropriate or even great services today, but with budget cuts and changes happening all the time, you cannot guarantee that those services will be there in a year for your child, so just because summer camp is paid for today, doesn't mean it will be in two years.

Also, there is an unknown factor in autism – the puberty factor. In my experience, puberty is the “great equalizer.”  Some kids improve and some get worse. There is no crystal ball to tell you which may happen so always plan for the worst, and hope for the best.

This article is not written for women versus men, just a guide to consider when writing a divorce agreement for custody situations. For the purposes of this article, we will refer to the soon-to-be-divorced spouse as “the Ex."

This is not meant to take the place of legal or tax advice but feel free to share it with your divorce counselor or lawyer when writing your agreement.

 

Special Needs Trust

This must be in place to direct monies and future care planning.

  • Make your child’s Special Needs Trust the beneficiary of your Ex’s 401k upon their death. Yours too.
  • Make your child’s Special Needs Trust the beneficiary of your Ex’s life insurance benefits upon their death. Yours too.
  • The very-necessary Special Needs Trust can cost $2,000-5,000 to write. Ask the Ex to pay half that fee.

 

Life Insurance

Require your Ex to hold and keep a life insurance policy to cover the total added amount of all child support they'd have to pay lifelong and make the Special Needs Trust the beneficiary.

  • If you have an Ex with health issues, like addiction, this is crucial, because if they continue their behavior and die prematurely, your child will not get the support they need. This policy will guarantee the amount they would have paid if they would have lived a normal lifespan.
  • Require your Ex provide you a copy of the annual policy to be sure they are keeping up payments.

 

Order of Child Support Proportions

If you have an Order of Child Support, in most states, everything for the children is divided proportionately and the proportions are set within the Order of Child Support. If you are likely to pay more than half because you earn more money, then ask specifically for recreational activities to be divided equally. In some states you can pull this off, in others, it is by-the-book proportional according to established income. The same is true for insurance co-pays, etc. You generally never ask the ex to pay for half of anything, unless you make more than they do. If you don’t have an Order of Child Support, you may list the items separately, as below.

Don’t forget things like summer camp, school supplies and school clothes. Remember, if you don’t need to pay for camp one year because your state covered it, then the Ex won’t be liable so make the statement that “If I have to pay, you pay half, but if I don’t have to pay then you don’t pay either."

If your child participates in activities like dance, karate, horseback lessons, music classes, add these expenses in as well.

Don't forget college (tuition, dorm, transportation, food, labs, books and fees!) If the child doesn't go, then the Ex doesn't have to pay.

If your child is, or becomes, capable of driving, consider partial allowance for a car/gas/insurance (insurance is currently approximately $1200 a year for someone under 25.).

For health insurance, get it in writing that even after your child would normally age out of coverage (when they are 22 or stop being a student, whichever comes first) your Ex still cover that child if they are not emancipated (if you have guardianship) until the child’s death. Also, beyond base health insurance coverage there are co-pays, and the many things insurance doesn't pay for such as dietary interventions, vitamins and supplements. Figure out how to divide that up. Also, don’t forget dental and vision coverage.

When your child turns 18, if s/he is not fully able to care for themselves, you will have to file for legal guardianship. This generally costs approximately $1500-2000. Ask that the Ex pays for half the guardianship filing and court fees.

 

Decision Making & Compliance Stipulations

Educational decision making - if the Ex is not participating in the educational process at all, make sure there is a stipulation that you, the custodial parent, make all educational decisions and the Ex has to follow them through during visitation, if applicable. A clause about the Ex NOT interfering is great!

Medical decision making - this is where a LOT of people who do medical treatments get in trouble so this is VERY important.

  • Some spouses don't want to pay for diet or Medical Treatment so they just claim it's experimental and some judges will throw out the monetary awards. Secondly, be sure to require the Ex to comply with any special diet while they have visitation, give the supplements, etc. It's also important to have a clause that the Ex SUPPORTS medical treatments for the child because I have seen, on many occasions, parents come back later and call the treatment “alternative” and fight for custody based on this. I think a person who does medical treatments needs to insist on a clause that the Ex agrees with all current medical treatment and agrees with the vaccine exemption.
  • While it’s true that if you are the sole decision maker, an Ex doesn't have to agree with anything you do, but must follow your decisions, or the Ex is in contempt of court, which can get expensive, it’s still ideal to get a clause about the Ex supporting medical treatments, or vaccine choice, in particular.
  • Some Ex spouses will seek to get out of paying for therapies and treatments and will take the child to another doctor to get them re-diagnosed with a lesser condition to get out of paying. Consider a clause stating “Except in some cases of emergency, the Ex shall not take any action to hospitalize the child without consulting with Parent1. The Ex may not seek routine, evaluative medical or therapeutic care for either child without written consent of Parent1. The Ex will incur all costs for medical care of children while in their care.” This will ensure this cannot happen without your express written consent or they will face contempt of court charges, including paying your court and lawyer fees.

Therapies - The settlement must specify that the Ex will take the child to all therapy appointments (speech, OT, etc.) and/or make the child available if it is an in-home service, such as ABA.

If the Ex gets remarried or has a live-in friend, get it in writing that that person is not allowed to substitute for the Ex at IEP meetings, or in any joint decisions already agreed upon.

 

Safety Considerations

If your Ex has problems with addiction, such as alcoholism, there is also a clause you may want to put in about them NOT drinking alcohol or being under the influence of anything during visitation. Most judges will require that to be reciprocal (meaning it says that for BOTH of you).

If you fear your Ex will bring around a stream of inappropriate companions near your child, you can write a similar thing about no overnight guests spending the night at the Ex's house during their visitation. Again, the judge may require the same of you in a reciprocal agreement.

If you have an expectation that your Ex may put your disabled child in inappropriate care during their visitation, you can include a cause that the child is not to be left with other caretakers during the Ex's visitation or that you have to approve caretakers.

If you have a child who elopes or is not safe in a typical environment, you may add a clause to say “The Ex must take all safety precautions including double-sided locks, child safety automobile locks, and locked food pantries when children are in the Ex’s care. This includes any travel or vacations that the Ex may take with children.”

 

Finances

Don't forget to stipulate who gets the tax deduction of the kids. Generally, the custodial parent should get it.  If you share 50-50, then split up the kids half and half, or one parent gets the exemption one year and the other the next. In this case, make sure that parent who does not claim the deduction signs form 8332, stating that they will not claim the deduction for that year.

Since the cost of living increases every year in the USA, a cost of living increase in child support every year can be requested. In 2008, the COLA (Cost of Living Adjustment) was 5.8%. I get a 3% COLA in my agreement. It's not much but it helps.

 

Other Important Details

Passports – before you split up, if possible, get passports for all the minor children. If you wait until after, then everything will require custody papers for travel, etc.

Child support - as long as your child won't be emancipated, the Ex can pay support for their lifetime, instead of it ending on their 18th birthday. Child support can either go into the SNT or to the custodial parent directly.

Moving - you need to retain the right to move, anywhere, anytime for any reason to seek better services for your child, without penalty. Getting stuck in the same zip code for 15 years when the services are bad and get worse is not best for your child.

  • If one of you moves a large distance, you will need to account for the costs of travel for custody or visitation.  If your children need to fly on a plane, make sure you add in costs of the airline’s unaccompanied minor programs, which can add $100 per leg of flights, and nonstop flight costs.  This type of travel may not be appropriate for children with significant challenges.

There are many types of custody – physical, full, legal, educational, medical.  Without full custody, you and your Ex make decisions together, unless you get it in writing as to whom has the rights over each issue. Don’t forget to specify who has rights over spiritual upbringing and permanent body alterations such as tattoos, piercings etc.

 

After your settlement is completed

Once your custody agreement is completed and it’s been filed with the court, you still have one more task to do. You need to make sure that copies are given to the following people:

  • The school: Be sure that it is clearly written (if there are alternating weekends/holiday vacations, etc.) who has the kids when so the school can release the child to the correct parent.
  • The doctor or therapist: Provide a copy with the children’s physician's office demonstrating who maintains the right to make the child's medical conditions.
  • Caretaker/Babysitter: Provide a copy of the custodial agreement to any caretaker who might be transporting your child to and from school or appointments as well as any babysitting or respite care.

This is not meant to take the place of legal or tax advice but feel free to share it with your divorce counselor or lawyer when writing your agreement.

This article was written in a collaboration of the SBC through mistakes and lessons learned and we hope it helps you safeguard your child and their rights.