Published in: Domestic Law Journal
Family Law Section
Western County Bar Association
There are few challenges more difficult than going through a divorce while having a special needs child. When a special needs child is involved, issues of child custody, visitation, support and property division can be significantly more complex.
Divorcing parents with a special needs child confront singular issues. For example, that child often has more expenses than a child without special needs. The uncertainty about the nature, cost and predictibility of future care expenses makes enumerating child related add-on expenses relating to a disability challenging in a divorce agreement. Particularly important, the child’s eligibility for governmental agency benefits may be threatened or reduced by providing a cusodial spouse child support or maintenance. Parents also need to be aware of how to navigate the educational system and take advantage of estate planning strategies to maximize necessary support for their child.
Family law legislation does not yet sufficiently recognize the unique considerations of these families in the areas of custody and support. Child support guidelines may be inadequate for resolving lifelong issues for families with a special needs child. “The U.S. court system is overwhelmed when it comes to dealing with all divorces, child custody, and child visitation and support issues. As a result, it cannot adequately address the unique needs inherent in family law cases involving children with special needs – an especially critical situation as the number of special-needs children is skyrocketing.” Until the law of divorce provides properly for special needs children, family law attorneys have an unparalleled opportunity and responsibility to educate their clients and provide viable resolutions by agreement.
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Divorce and the Special Needs Child
Tamara A. Mitchel
Editor in Chief
Recent Decisions Editor