How is Divorce Different for Parents of Special Needs Kids?

Parenting is stressful by itself, but when your child has a disability, whether it’s an intellectual developmental, or a physical, the stress is amplified.  It’s not surprising that parents of special needs kids frequently see their marriages shatter under the immense stress and find themselves facing divorce.  If you find yourself heading to, or in the midst of a divorce, and your child has special needs, there are some issues that you should be aware of before your divorce is finalized.

Start by Defining your Child’s Disability and Abilities

The nature and extent of your child’s specific disability will guide decisions about child custody, specifically parenting time and decision-making authority.  Since your child’s needs, deficits, skills, and strengths form the foundation for many decisions in your divorce, it’s important to know exactly what those strengths and weaknesses are.  While many parents are acutely aware of their child’s needs, other parents may disagree on the nature and extent of their child’s abilities and disabilities. Any disagreement can translate into fights about the necessity for specific interventions, therapies and/or treatments both in the near and distant future.  Therefore, it’s helpful to take stock of areas of agreement and disagreement early on.

Once a divorce is underway, a parent may deny a child’s disability solely to avoid paying the cost of any therapies or other treatments.   To protect your child’s best interests during your divorce, consider whether your child has been evaluated by all appropriate health professionals including physicians and/or psychologists, occupational therapists, physical therapists, speech therapists.  While during a marriage a definitive (or current) diagnosis may seem unnecessary, it can be crucial in a contentious divorce to be able to require a spouse to contribute to and implement necessary treatment or protocols during and after divorce.

At the outset of your divorce, make sure you have handy your child’s medical and psychological records, if any, and any IEP’s or 504 plans. These records are often the best evidence of the support your child requires.

Parenting Time Schedule

Parenting time refers to the specific days, times, and holidays you and your child’s other parent will spend with your child.  Ideally, you will cooperate with your spouse to reach a parenting time schedule that serves everyone’s needs.  Your decisions will be informed on your past routines, your child’s needs, and your own schedules among many other factors.  If you cannot decide, the court will most likely appoint a guardian ad litem to make a recommendation.  The court will be guided by the best interests of the child in making all child custody decisions including those about parenting time.

Even when parents agree on the nature and extent of a child’s disability, they may wildly disagree on whether and how to treat that disability and fear the other parent won’t comply with appropriate treatment, or alternatively fear that they will be forced to comply with excessive or unwarranted treatment.  These disagreements form the underpinnings for many fights over parenting time.  By understanding what fuels parenting time disputes, your attorney can help you devise a plan for resolving your divorce and propose a parenting time schedule that meets everyone’s needs.

Routine Decision Making

Routing decisions, also known as daily decision making, refers to those daily decisions parents make for their kids including what time they go to bed, how much screen time they can have, whether they have to complete homework before or after dinner, whether they can have a juice box and a cupcake, etc.  Routine decisions are typically left solely to the parent enjoying parenting time.  As a result, children may have very different routines at each parent’s home.  Some children with special needs require consistency and clearly defined routines.  The parent who is consistently able to provide predicable and appropriate routines is likely to be awarded more parenting time in these situations.

Significant Decision Making

Significant decision-making authority in Illinois refers to big decisions impacting a child’s 1) education, 2) religious upbringing, 3) medical care, and 4) extra-curricular activities.  One parent may have authority to make all decisions for their child, decision making may be shared equally requiring a consensus, or decision-making authority can be divided in any number of other combinations.  No parent wants to be shut off from influencing decisions for their child.  While often decision-making authority is shared, it’s not a guarantee.  When parents consistently cannot agree, show apathy, or fail to consult the other parent, then shared decisions making may be inappropriate.

Child Support

In Illinois, child support is calculated using the income shares method.  Under this model, child support is calculated based on the respective incomes of the parents and the amount of time each parent has parenting time.  A parent can be required to pay above guideline support when a child’s financial needs are greater than typical.  If you are applying for or receiving SSI, please alert your attorney because child support payments may negatively impact your child’s SSI benefits.

Spousal Support and Property Division

A child’s needs may indirectly affect decisions about spousal support and property division too.  If one parent has made significant contributions to the care of a child and gave up a career to do that, the court will consider this when setting spousal support and dividing marital property.  The court may also consider whether the child will continue to require significant care from a parent and whether the child will be independent and self-supporting in the future.

Health Insurance and Life Insurance

Securing both health insurance and life insurance may seem especially important if your child has special needs.  A lapse in medical coverage could delay necessary medical care.  A carefully drafted marital settlement agreement will outline who is responsible for providing health insurance for your child to avoid any interruptions.  Both parents should be required to have life insurance for the benefit of their child.  If your child’s disability prevents him or her from becoming self-supporting, then you should consider establishing a special needs trust.   Don’t forget to ask for proof of coverage annually so a policy doesn’t lapse unintentionally.

Oak Brook Divorce Lawyer

Cameron H. Goodman is an experienced child custody and divorce lawyer serving Oak Brook and the greater Chicago area.  For more information on how Cameron can help you resolve your family law matter, please don’t hesitate to contact us today.