Getting Divorced When Your Child Has Special Needs

When parents of a child with special needs decide that they want a divorce, there are a lot of challenging decisions to think about. These decisions may include child custody, child support, medical expenses, educational expenses, and so much more.

While the divorce process can be difficult for anyone, it can be physically and mentally draining for parents with a special needs child.

What percentage of marriages with special needs children end in divorce?

A special needs child requires a lot of emotional, physical, educational, and medical support. According to an article published in Psychology Today, the divorce rate for marriages with a special needs child is 87 percent. This is likely because marriages involving a child with special needs are “much more likely to be stressed.” However, the article explains that this stress does not always only affect the marriage, but it can also severely affect the whole family, including siblings and other family members.

How a divorce can be different when you have a child with special needs

There are several different issues that arise during a divorce involving a special needs child, making the divorce process more complex. While all parents have to think about and plan for certain factors during the divorce, those with special needs have to address unique situations and challenges involving child custody, child support, financial needs, and medical needs, which can affect the child now and in the future. Depending how severe the child’s disability and medical condition is, caring for a special needs child is usually a lifelong responsibility.

What you should know when it comes to child custody and visitation

Most of the time, both parents are able to create a plan together regarding child custody and visitation. However, if this is not possible, the court will make these decisions for you. In New Orleans and the rest of Louisiana, the court will work to ensure that both parents receive joint custody or reasonable visitation rights, as long as it is in the best interests of the child. This means that the Judge will fully assess the situation and decide what arrangements are in the child’s best interests.

It is usually believed that the child should have a relationship and spend time with both parents. However, depending on the child’s special needs, it can be difficult to decide what type of custody and visitation is ideal. This may be because the child has many medical appointments, or it could be because the child’s disability requires a specific routine and comfortability. For example, a child with autism spectrum disorder needs constant routine and predictability. Therefore, it can be difficult to assign a traditional visitation schedule to an autistic child as they may react negatively to going back and forth between homes frequently.

Another issue that may affect child custody and visitation is if the parents cannot agree on the type of medical treatment, therapy, schooling, and routine that the child needs. It is not uncommon for parents to see their child’s disability or medical condition very differently, resulting in an irregular routine and unpredictability for the child which can cause significant stress. If this is the case for you, it is crucial that you and your attorney inform the Judge on your child’s specific special needs. Sometimes, the Judge will even request a professional who has knowledge about the child’s specific needs to help them create a custody and visitation schedule that will work best for them.

What you should know when it comes to child support

Louisiana §315.22 explains that “an award of child support continues with respect to any child who has a developmental disability until he attains the age of twenty-two, as long as the child is a full-time student in a secondary school.” Therefore, if you have a child with special needs, you may be able to still receive child support until they reach the age of 22 as long as they are enrolled in high school.

While it may be a relief to know that you can get child support for your child past the age of 18, it is important to know that Louisiana decides how much child support you will get based on your and your ex-spouse’s percentage of combined gross income. The court will take into account how much it costs to raise and take care of the child, but the truth is that your child’s expenses will likely be much higher than the child support you receive. In order to ensure that you get the maximum support possible, it is recommended to retain a family law attorney right away to help you educate the court about your child’s financial needs and negotiate successfully.

What benefits can your child receive based on their special needs?

Social Security benefits are available for children with disabilities, which are Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI). Children under the age of 18 can receive SSI as long as they have a qualified disability or medical condition, and the parent’s income falls under a certain amount. A few examples of conditions that qualify for SSI are total blindness, Down syndrome, cerebral palsy, total deafness, and muscular dystrophy. However, if your child is eligible for SSI, the Social Security Administration (SSA) will review their condition every three years to determine whether any improvements have been made.

Once the disabled individual turns 18, they may be able to receive SSDI benefits, as long as they still have a qualified disability. They will not be required to prove that they have worked to receive these benefits. Instead, the SSA will base their eligibility on the severity of their disability. However, in order for your adult child to qualify for SSDI, there will need to be proof that one of their parents is receiving Social Security disability or retirement, or one parent died and had enough work history to qualify for Social Security disability.

Planning for the future with a special needs child

Parents with a special needs child should plan for the future by creating a will and trust. While you may not want to think about the possibility of no longer being here to take care of your child, the reality is that this will happen one day. When creating a Last Will and Testament, ensure that you assign a guardian for your child. This person will take custody of your child if you and your ex-spouse both pass away. You typically do not want to leave any assets in your will to your child if they are receiving financial assistance from the government.

However, there are special needs trusts that are specifically for disabled children. By establishing this type of trust, you can rest assured knowing that your child will have ongoing income and financial help, as this type of trust does not affect their ability to receive government assistance. You will need to assign a trustee who you can depend on to provide the assets and funds left behind in the trust to your child when needed.

If you are contemplating divorce and have a special needs child, please do not hesitate to reach out to a New Orleans family law attorney from the Law Office of James A. Graham at your earliest convenience. We can help you resolve any disputes, develop a tailored parenting plan specifically for your child, negotiate fair child support based on your child’s needs, and plan for the future to protect your child when you are no longer here. Call our office or complete our contact form to schedule your case review today.