A significant percentage of marriages will end in permanent separation or divorce. Although there is no such thing as a typical divorce, a divorcing couple with a child with special needs faces unique challenges and choices than most. Planning for your child’s future medical and financial needs is crucial as you proceed through the divorce process. Lead attorney Christopher Heritage of Heritage Legal, PC provides comprehensive estate planning services to clients going through divorces. He has a well-earned reputation for providing effective, strategic advice and counsel for parents of special needs children. He understands the extraordinary challenges divorcing parents of special needs children face and offers reliable, informed legal counsel when needed. Unique Challenges Faced By Divorcing Parents of Special Needs ChildrenThere are many considerations parents of special needs children should consider when beginning the divorce process, including child custody and visitation. California family court judges recognize the importance of both parents' roles in a child’s life. During the mediation process, parents are encouraged to negotiate and agree on a custody arrangement in which both parents can spend meaningful time with their children. Generally, one parent has primary physical custody of the child or children, and the other parent has the right to overnight, weekend, and holiday visitation. Adjusting to a shared custody agreement can be difficult for most children, but it is especially difficult for a child with special needs. For example, a child with special needs may have a more difficult time adjusting to living in two places and changes to his or her routine. Parents should consider how they will maintain their child’s therapy, tutoring, and medical appointments. They should also consider the types of medical equipment their child may need during his or her visitation. The parents and the court should consider how close the non-custodial parent’s home is to the child's therapists and doctors. The child custody agreement should have provisions that address these unique challenges. How Is Child Support Determined in a Special Needs Family?An important consideration will be the impact of the divorce on your child’s eligibility for Supplemental Security Income (SSI). If your child receives SSI, child support payments may count as unearned income, reducing your child’s SSI benefit on a dollar-for-dollar basis. If your child’s SSI award is reduced to zero, your child will lose SSI and important Medicaid benefits. There is an important caveat to this rule, however. Until a child with special needs becomes an adult, one-third of the child support payment will be disregarded to determine SSI eligibility. A child with special needs is considered an adult when he or she turns 18 or 22 if he is still in school and not considered the head of the household. As the parent of a special needs child, you should talk to an attorney about whether a child support award could negatively affect your child’s SSI benefits and Medicaid. Attorney Christopher Heritage is prepared to help you understand how child support payments could impact your child’s benefits and how to protect your child’s benefits. Proving Financial Support for Your Child When He or She Becomes an Adult Children with special needs may need assistance with day-to-day activities when they become adults. Many need ongoing medical care and therapies, all of which can add up. The amount of financial support a parent may be required to provide can be significant. As mentioned above, any financial support an individual with special needs receives once they turn 18 will be considered as “unearned income” for the purpose of eligibility for public benefits, such as Supplemental Security Income (SSI) that he or she may receive as a young adult. Creating a special needs trust is an effective way to preserve your child’s ability for critical public benefits. When the child turns 18, financial support can be transferred into the trust. Your child will have access to much-needed assets without forfeiting their government benefits. A properly designed special needs trust will provide financial assistance for any care above and beyond what public benefits provide, including, but not limited to, the following:
Trust funds cannot be used to pay your child’s rent, mortgage, property taxes, utility bills, or food. However, your child can retain primary residence and a single motor vehicle without jeopardizing public benefits by being considered an asset for SSI. Creating a Financial Plan Before, During, and After the Divorce Is FinalizedA well-conceived estate plan can help you prepare for unexpected life changes, including divorce. If you have a child with special needs and you’re divorcing, there are important first steps you can take before the divorce process begins. First, you should create a financial plan. A child with special needs can have exceptional financial needs, especially during a divorce. Having an ongoing financial plan that includes childcare support after your child turns 18 is important. Creating a special needs trust can help you create a financial plan. You should also consider how you’ll pay for your child’s needs during the divorce process. Create a Medical Plan for Your Special Needs ChildYour child custody agreement will contain provisions regarding legal custody. In most cases, both parents share legal custody and the right to decide on the child’s education, health, and welfare. Should a medical emergency occur, ensuring you’ll continue to have adequate healthcare coverage during and after the divorce is crucial. Creating a medical plan of action to clarify, in detail, each parent’s responsibilities in the event of a medical emergency is essential. Divorcing parents should also create a plan for how the parents should inform each other about medical decisions. Finally, naming a guardian who is capable and willing to care for your child with special needs can help you ensure your child will be cared for in the future. Discuss Your Case with an Estate Planning Attorney in Palm SpringsGetting a divorce can be incredibly complex for parents of special needs children. Discussing your case with an estate planning attorney can help you protect yourself and your child with special needs. Don’t hesitate to contact Heritage Legal, PC to schedule an initial consultation and learn more about how we can help you. |