Divorce and your child with special needs
When you are a parent of a child with special needs, the issues to consider when drafting your divorce agreement become significantly more complex. Try your best to clearly define the role of each parent; although it may be difficult, it will help mitigate further confusion for the courts, schools, provider agencies, and for your child.
Be sure to review the details of your child's everyday life with your attorney as this will help realistically round out the supports they will need. Also, be sure to fully understand your state's legal requirements for parental support of adult children. Your attorney should be able to clearly communicate these to you.
Some Basics to Know
Three general areas to discuss and define include:
- Child support and alimony. Depending on your child's age, agreements may need to be revisited as their needs and abilities grow and develop, and their access to government benefits and services becomes more clearly defined.
- Legal and estate planning
As each family's situation will be different and be subject to different laws, it is difficult to provide a general guideline of issues to be discussed in custody decisions. A few questions to consider when making custody decisions about your child with special needs might include:
- Who will be the custodial parent or the caregiver? Are there people to step in and resources planned in case parents can no longer fill caregiving roles?
- Will your child live at home or in the community? How does this impact the caregiving parent?
- What are the terms of visitation?
- How is responsibility and decision making structured for:
- Education- IEP
- Transition Planning to Adult Services
- Medical Decisions and Appointments
- Adult Services System- ISP
- What about the siblings?
Be careful with guardianship. Careful consideration should be given when choosing the parent to serve as guardian while the other parent serves as the Medicaid provider.
Child Support and Alimony
Questions to Ask About the Money
Below are some basic questions to ask in addressing the financial factors and costs for your child’s lifetime needs.
- What does it cost to provide for your child's needs today and what will their needs be like in the future? Answering this question may require an assessment now and again at future ages and stages.
- What your child is able to do today will likely change along their lifespan. What services and supports does your child need currently and what will they need in the future? Who provides those services and supports now and is there a backup for the future?
- What is available for financial support today and in the future for the caregiving parent? The caregiving parent may need to receive alimony if they are not able to work full-time because of the caregiving demands. They may need respite supports, and additional retirement income if they are not able to save for their own retirement years.
- Do any of the benefits your child is receiving help to support the household currently and how will this change when parents have separate households?
What are potential income sources to support your child’s needs today and in the future? This may be a combination of child support, your child's earnings, if applicable and government benefits. If you have sufficient financial resources, funding a SNT today for the benefit of your child during their lifetime may be worth exploring.
Your Child's Transition to Adult Services
Since school entitlements end when a child leaves the school system, it is likely they will need additional supports to help fill their day. A parent may have the responsibility of providing transportation, employment, and social activities once filled by the supports received in school. This may interfere with the parents’ own ability to work. Because of this, the divorce agreement should require that the abilities and needs of the child be re-evaluated in terms of the resources available, as well as their needs.
When your child reaches adulthood, guardianship and alternatives to guardianship should be carefully considered. Even though the custodial parent may be the most appropriate parent to be guardian, the guardian cannot also receive Adult Family Care (AFC) or Medicaid funding to care for the child living in their home. Please see TEN FAQs about Guardianship for more information.
The Impact of Your Child Receiving Social Security Payments
Child support payments will offset a portion of your child’s SSI income when eligible. Currently, SSI payments will be reduced by two-thirds of the amount that is paid in child support. It is worth considering the amount of child support versus the amount of SSI your child will receive, as well as any benefits that may be lost because of ineligibility.
Rather than making child support payments to the caregiving parent, one option to consider is funding a SNT in a lump sum equal to the future payments, including inflation. In some states the funding of an ABLE account may be incorporated in the divorce agreement, but in many states it is not allowed to be mandated. If this is allowed in your state, it may be worth exploring.
If your child is deemed eligible for SSDI benefits based on the child support paying parent’s eligibility and work history, these funds may be counted towards child support obligations.
Legal and Estate Planning
The vision of your child’s future may differ from one parent to the other. The important aspects of your child’s life, and people in it, will also change over time. It is helpful to complete a Letter of Intent now and update it periodically. If at all possible, you should review it together. More information, along with a fillable Letter of Intent, may be accessed here.
Child support charts do not address the extra expenses of a child with special needs. Many times, there is an increased need for specialty medical care, services, and equipment as well as for non-prescription treatments, vitamins and nutritional needs.
Tailor your divorce agreement for the long term
Since caring for your child with special needs may extend well beyond age of majority, you need to tailor your divorce agreement for the long-term.Use appropriate special needs trusts, in coordination with public benefits and in contemplation of gifting plans and long-term care insurance. Effectively channel support obligations and parenting plans in the divorce settlement to provide for more quality of life expenditures for the child.
If you also have the ability to access government benefits to be the adult family care provider under Medicaid provisions, you will not be able to be your child’s guardian. Careful consideration should be given when choosing the parent to serve as guardian while the other parent serves as the Medicaid provider.
The family home
When Sue and Bob were divorcing, they realized that many of the benefits that their daughter Anya received helped to support the family household. She received SSI and a housing voucher, and since Bob was the guardian, Sue received AFC funding for caregiving supports while Anya lived at home. The dilemma was that if Anya moved to a home of her own, which they both wanted for her in the future, Sue would not be able to maintain the family home without this added income from Anya’s benefits. It was important to separate income and expenses with this in mind to determine a more appropriate division of assets and payment of alimony.
- The Special Needs Planning Guide, How to Prepare for Every Stage of Your Child's Life, Haddad/Nadworny
Divorce and Children with Special Needs | Special Needs Alliance
Affinia Financial Group conducts business under the Special Needs Financial Planning name. Advisory services offered through Affinia Financial Group, LLC, a registered investment advisor.
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