While all children need the continued support and care of parents, children with special needs require unique consideration during and after a divorce.
The financial support allotted to a child post-divorce is usually determined according to the family code of each state. Such support for a special needs child can be adjusted based on the unique needs of the child in question.
Adjustments to this support are typically based on factors, such as:
- The specific needs of the child
- The ability of the parents to contribute to the support
- Financial resources available for this support
- Child care expenses in order for the caretaker to remain gainfully employed. Although care for the child may require a specially trained caretaker.
- The amount of uninsured medical expenses
- Special educational care or therapies
In order to qualify or merit special adjustments to standard child support, a detailed budget should be created outlining specific expenses to be incurred for the “best interest of the child.”
If the child will eventually be able to live independently and require less care, the decree should also provide specific criteria for determining an alternate level of support in that situation. This would specify exactly which expenses would decline in case the child could live independently and/or become gainfully employed. In such cases, the caretaker parent may still be required to provide substantial input and guidance, as well as supervision of attendants.
The typical parental possession schedule may not be feasible for a special needs child. This means that one parent will likely be entirely responsible for the child’s care and management. This may impact this parent’s ability to work full time, while ensuring that the child is cared for properly, transported to medical appointments and therapy, etc. There is a clear financial impact on the caretaker that should be considered in establishing the level of financial support from the other parent. The caretaker’s need for respite must also be considered and addressed in the parenting plan.
While the family code doesn’t directly address parental possession of the special needs child, many attorneys believe that the guidelines for a child under the age of 3 should apply. The following is directly quoted from section 153.254 of the Texas Family Code with regard to what is desirable for a child’s care during and after a divorce:
- “The caregiving provided to the child before and during the current suit;
- The effect on the child that may result from separation from either party;
- The availability of the parties as caregivers and the willingness of the parties to personally care for the child;
- The physical, medical, behavioral, and developmental needs of the child;
- The physical, medical, emotional, economic and social conditions of the parties;
- The impact and influence of individuals, other than the parties, who will be present during periods of possession;
- The presence of siblings during periods of possession;
- The child’s need to develop healthy attachments to both parents;
- The child’s need for continuity of routine;
- The location and proximity of the residences of the parties;
- The need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:
- The age of the child; or
- Minimal or inconsistent contact with the child by a party;
- The ability of the parties to share in the responsibilities, rights, and duties of parenting; and
- Any other evidence of the best interest of the child. “
If the child’s disability will continue beyond age 18, the probate court rules will also have to be considered, since the family code rules will no longer apply. In this case, we recommend consulting an estate attorney to be sure that the support payments are properly handled and do not affect government benefits.
Without proper planning, child support payments or alimony could cause a reduction in the child’s disability benefit from Social Security. A qualified Special Needs Trust can be created to receive the child support payments, thereby allowing the child to still meet the “means” test. Any income that is directed to the Trust isn’t counted as available to the child and won’t influence calculations in qualifying for assistance. The Trust can enhance the level of care and provide for many of the child’s needs.
Not all benefits programs are means tested and the child support payments will not impact the ability to receive payments. The Community Living Assistance and Supportive Services Program can provide assistance with enrichment programs, respite and in-school attendants.
Child support paid toward the care of a disabled child is considered partial income of the child. When he reaches age 18, all of the child support is his income unless steps are taken to establish a Special Needs Trust for receipt of the support payments. If a couple is going through divorce, it is best for them to address this issue specifically during the settlement and wording in the final decree.
It is important to consult with the estate attorney to set up this trust prior to signing the divorce decree, so that the trust can be named as the recipient of the support payments. This will avoid future issues with loss of benefits due to child support payments and alimony (if any). Even alimony can be deemed partially income to the child.
Note that payments for expenses must be made from the trust directly to the source of the cost rather than distributing the funds to the household first. These payments can be for nearly any expense incurred for housing, food, maintenance, medical expenses and other needs.
While the agreement for possession of the child, his support and each parent’s rights and responsibilities is managed through the divorce decree, when the child graduates high school or reaches age 18, that agreement no longer applies. However, it is possible for that agreement to form the basis for the disabled adult’s continuing time with each parent through the Guardianship process. The Guardian will be empowered to decide the residence of the child, make medical decisions and apply for government benefits. It is also the guardian’s responsibility to collect and manage income from all sources and properly allocate for the individual’s needs.
Due to privacy laws, without the establishment of a guardianship, the parents may be unable to make medical decisions or access confidential information.
When spouses are establishing their parenting plan as they go through divorce, this is the time to consider the disabled child’s long-term needs, support, caretaking and scheduled time with the non-caretaker.
Join me at an upcoming Guide to Good Divorce seminar at the Houstonian Hotel: Sat. July 28 and Sat. Sept. 22. For details, visit www.GuideToGoodDivorce.com, or call me at 832-858-0099.