Noteworthy divorce issues that involve a special needs child

One of the most difficult challenges in divorce is planning for a child's future. There are considerations such as custody and visiting rights along with arranging child support.

When parents with a special needs child divorce, many other arrangements become necessary. The word "child" usually means a person of minority age who depends on parents for support; however, the law may identify adults with special needs as children upon and after the age of majority to indicate that they still depend on parents for support and are not physically or mentally capable of providing adequate living support for themselves.

Plans for ongoing care of a special needs child

When taking all factors together, the time to plan for a disabled child's lifetime care is during the divorce. Children with severe disabilities may remain incapacitated for life and receive indefinite child support according to Texas law. A family law attorney may work with a colleague who specializes in estate planning if it is desirable to set up a special needs trust to protect the child's lifetime interests. Some of the issues to address during divorce include the following:

  • Parental responsibility of care division
  • Medical transportation services
  • Costs for health insurance
  • Special home medical assistance and equipment
  • Vocational, physical therapy or rehabilitative services
  • Payment for special diet and medications
  • Respite care provisions for the custodial parent
  • Care during non-school hours and vacation days

This list does not define all of the potential unique needs involved in a particular child's continued welfare.

Financial and estate plans

A special needs trust can be essential to identify guardian(s) for a minor or adult child as successor trustee for the parents. This type of trust also protects the child's assets and the child's right to receive government and state benefits. Parents can set up individual trusts or combine their plans into a single trust.

Certain types of special needs trusts will allow the child to preserve access to means-based benefit programs, including Medicaid and Social Security. A financial planner who works under the direction of the parents' respective legal counsel is familiar with protecting a child's assets in a divorce, including the effects of child support payments. Parents should use an amicable team approach for this part of their divorce to make sure their child's needs are best served and understood by each parent. Divorcing spouses may also be wise to set up life insurance policies, naming the child as beneficiary should they precede the child in death. 

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