Divorcing With Special Needs Children

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Burns & Levinson LLP

Divorce is hard.  Along with all the emotional upheaval associated with the end of a relationship, the legal wrangling and disputes over division of assets, allocation of liabilities, parenting plans and the appropriate amount of support can be challenging.  When special needs children are involved, parenting and support issues become even more complex.

Special needs children can place extraordinary demands on their caretakers.  In fact, taking care of a special needs child often becomes a full time job for one of the parents.  The parent who sacrificed his/her career to care for the child is likely to be faced with on-going caretaking responsibilities beyond the child’s age of majority.  Determining spousal support for the caretaker-parent must account for the lost career opportunities both in the past, as well as in the future.

Where a child suffers from a physically debilitating condition, there can be challenges involved in meeting the child’s daily care needs, equipment, and specialized treatments that need to be considered.  Parents may not have the financial ability to have two sets of necessary equipment to allow a child to safely spend time in each parent’s home.  This creates additional problems when it comes to fashioning a parenting plan that is in the best interests of the child.  It is incumbent upon the parents to find a way to come together to continue to meet the physical needs of their child while also allowing both parenting continuing meaningful involvement in the child’s life.  For a child with physical challenges, the costs of medical care and equipment must be carefully considered and factored in when setting child support, as the Massachusetts Child Support Guidelines do not account for those types of extraordinary expenses.

Another important consideration when setting child support is whether a child under the age of 18 is receiving Supplement Security Income (SSI) from the Social Security Administration.  The Social Security Administration will decrease a child’s benefits based upon child support paid to the parent with whom the child is living – on a dollar-for-dollar basis. While one-third of the child support is disregarded, if the two-thirds that is counted reduces the SSI benefit to zero, then the child will also lose eligibility for Medicaid, which may be providing substantial benefits in covering medical expenses.  Of course, there are instances when the amount of child support being paid would outweigh the benefit of receiving SSI and Medicaid, but careful consideration should be given to child support where a child is receiving SSI benefits.

While the Probate and Family Court does not have authority under the divorce statute to order support after the child’s emancipation despite the special needs of the child, the parties would benefit from taking a look ahead and planning for what will happen when their child reaches the age of majority.  Should a special needs trust be established?  Who will take the lead in securing benefits, whether new or continuing? Should the parties consider housing alternatives?

Then there are those instances, most often involving mental health conditions, where the parents are not in agreement as to the state of the child’s needs or diagnosis.  Disagreement turn into battles over what treatment is appropriate and whether a child should or should not be taking medication.  In these cases, reaching consensus on a parenting plan can be particularly challenging, and often a contested trial ensues over the issue of which parent should have authority to make medical and mental health decisions for the child.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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