Divorce, Children With Special Needs, and the Pathway Through

During the past few years, there has been a significant increase in children diagnosed with “special needs.” Special needs is an umbrella term that includes children with specific learning disorders and cognitive impairment, chronic developmental disorders, physical disabilities, serious medical conditions, and severe psychiatric and behavioral disorders. In alignment with the U.S. divorce rate, family courts in Florida are experiencing an increased number of divorces and separations involving families with special needs children. The standard divorce process seems to be familiar to many people: separate, submit a divorce petition to the court, agree on the division of assets, custody, and alimony, and then after some time, a divorce is awarded. However, the process is not so straightforward for families with special needs children.

“It is normal for children to struggle with their feelings and have variations in their behaviors during their parents’ divorce but with a special needs child it can be even more challenging,” says Cathy Salmons, LCSW, Director of LCSW Counseling Services. “The ideal scenario is that parents talk with their children about the divorce and engage with a therapist or mental health professional to help them process their feelings in a way that aligns with their needs and abilities. It is also helpful for parents to understand that the stress associated with this change may cause exacerbation of symptoms, in the short-term, as they adjust to their new normal.”

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When dealing with all children during a divorce, it is paramount that parents respectfully communicate as they develop a parenting plan and custody agreement that is in the best interest of their child. This is especially important for parents of a special needs child because a standard parenting plan does not address the additional attention needed regarding the care and expense for a child with special needs. Special focus should be given to physical custody, legal custody, spousal/child support, and future planning during a divorce of parents with a child with special needs.

Shared physical and legal custody is the optimal outcome in a divorce with minor children. This collaborative arrangement gives each parent equal authority over the decisions in the child’s life, including education and medical care. Even though the marriage did not work, having both parents agree on key issues regarding supporting their special needs child helps build mental well-being, social skills, and competence in their child’s upbringing.

In October 2021, Bill CS/CS/DB 1532 went into effect in Florida which supports parents through an educational program that teaches parents how to co-parent during and after their divorce when dealing with children with special needs.

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Spousal support can become more difficult when dealing with a special needs child due to the complexity of the day-to-day care of your child. In many cases, a standard child document does not address the extra expenses or care needed to support a child with special needs, that could include an increased need for specialty medical and home care, services, and equipment, for non-prescription treatments, and nutritional needs. Uncertainty about the nature and cost of future care makes it difficult to estimate disability-related expenses in a divorce agreement. When dealing with the division of assets, it is important to assess custody and long-term medical support when outlining the needs of the main caregiver.

It is helpful to work with a family law attorney to develop a parenting plan outlining responsibilities as your special needs child transitions into adulthood, such as guardianship, eligibility for government or private agency benefits, employment, recreation and social development, independent living, or custodial care. In the state of Florida, when your special needs child turns age 18, your parental rights and natural guardianship to make medical, educational, living, and financial decisions for your child expires. During the divorce process, regardless of your child’s current age, it is important that you and your soon-to-be-ex-spouse plan to petition the court to become legal guardian advocates for your child. If your child is receiving public assistance at the time of your divorce or might need assistance it the future, it is beneficial to include a Special Needs Trust, also known as a Supplemental Needs Trust, in your future estate planning. This provision creates a discretionary trust to financially provide for your special needs child without jeopardizing public assistance benefits due to your current or future income or assets.

Divorcing has its own challenges but can be more difficult with a child with special needs. As part of your divorce, be sure to work with professionals to consider your child’s short-term and long-term needs during this transition to provide a supported pathway for everyone involved.

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