Things to Consider for Divorcing Parents of Special Needs Children

Things to Consider for Divorcing Parents of Special Needs Children

Under normal circumstances, divorce is an emotional process. When parents have a child with illnesses, disabilities, or other special needs, divorce can seem like an obstacle that is nearly insurmountable.

The unfortunate truth is that divorce rates among parents of special needs children are higher than that of the general population. In addition to the customary struggles of maintaining a healthy relationship, you’ve also been facing some overwhelming challenges that can take an emotional and financial toll on a marriage.

When parents of special needs children decide to divorce, there are factors that must be considered that other families might not face. If you are thinking of divorcing in Virginia or are already in the process, and have a special needs child, there are several things you need to know.

Custody and Visitation Involving Children with Special Needs

When there is a divorce case in Virginia, the courts will always want to see a custody and visitation schedule that is in the best interests of the child. If you can’t negotiate one, the court will dictate the terms.

When your child has special needs, the court will take other factors into consideration. These include:

  • The age of the child
  • The mental and physical condition of the child
  • How knowledgeable each parent is regarding the child’s care and other special needs
  • How involved each parent has been in the care of the child and with necessary services
  • How much time each parent can devote to the care of the child
  • How prepared each parent seems to be to care for the needs of the child

Child Support for Children with Special Needs

The Virginia Code (Section 20-108.2) also sets the guidelines for appropriate child support payments. The courts allow deviations to these guides when there is a child with special needs resulting from any physical, medical, or emotional condition.

Some of the additional costs that will be added to child support in these cases include those for medical care not covered by insurance, home nursing services, medication, medical equipment, and medical transportation.

While child support is typically only paid until a child reaches the age of majority in Virginia, this can be extended indefinitely when the child has special needs and meets a series of conditions.

What is a Special Needs Trust?

The Virginia family law court might also require that all child support payments go to a Special Needs Trust, which is also known as an ABLE account. There are several reasons and advantages to this.

First, this ensures that all payments are used to meet the needs of the child while also safeguarding their eligibility for certain government programs such as Medicaid and SSI. An ABLE account also has tax advantages for anyone that becomes disabled before the age of 26.

Eligibility for Supplemental Security Income (SSI)

As a divorcing parent, you should also have a full understanding of the public resources that are available to you and your child. For example, you may be eligible to receive Supplement Security Income (SSI) on behalf of a special needs child.

SSI is a program that is meant to help disabled, blind, and aged people who are financially challenged. If the custodial parent does receive these benefits, the other parent cannot take a reduction in child support to account for this.

Understanding Medicaid Waivers

When you have special needs child, access to affordable medical care is a must. Under the Medicaid program, you may be eligible for waivers that allow for a reduced cost of care as well as access to services that may not typically be covered such as long-term in-home care.

Three of the Medicaid waivers in Virginia that are relevant to a minor with special needs include:

  • the Intellectual Disability Waiver;
  • the CCC Plus Waiver; and
  • The Individual and Family Support Waiver.

As a parent of a special needs child that will be facing new challenges, you should maximize the benefits you receive under every available program.

Speak with an Attorney who Understands Special Needs Cases

Issues related to divorce, child support, and custody with special needs children can be emotional and complex. Since this is a specialized area of the law, not every family law attorney has the knowledge or experience necessary to navigate this area and effectively represent the interests of their clients.

At The Straw Law Firm, our Virginia family law attorneys are familiar with special needs issues, and we have successfully guided numerous other families through this process. Contact our Lynchburg area office today at (434) 595-3581 or reach out to us online to schedule an initial consultation.


The Process of a Virginia Divorce

One of the most difficult and consequential decisions individuals ever have to make is to get a divorce. If you have exhausted all attempts to save your marriage and believe there is no other alternative, then you must begin preparing for the marriage dissolution process. In Virginia, the divorce process can take several months or longer, depending on the type of divorce you are seeking and other specific circumstances of your case.

Understanding the Virginia Divorce Process

Before you can file for divorce in Virginia, you need to check and make sure you are eligible.  The first thing to look at is the residency requirement. Under Virginia law, the spouse who is requesting the divorce must have lived in the Commonwealth for at least six months prior to filing.

Once you have established that you meet the residency requirements, you need to decide whether it will be a “no-fault” or fault-based divorce.

No-Fault Divorces

A no-fault divorce is generally simpler and easier, because you do not have to prove “fault” in court. That said, there are some important requirements that must be met before you can choose the no-fault option:

  • Meet the residency requirement: For a no-fault divorce, both spouses must have lived in Virginia for at least six months before the divorce is filed.
  • Prepare a separation agreement: To get a no-fault divorce in Virginia, you will need a written, voluntary separation agreement. This agreement addresses important issues such as division of marital property, alimony/spousal support, child support, and child custody and visitation. If you have a fairly simple and straightforward case and you and your spouse agree on everything, you may be able to negotiate this agreement on your own. Keep in mind, however, that this agreement is likely to be the basis for your final divorce settlement later on. And even with uncontested divorces, there may still be small areas of disagreement that need to be worked out. For these reasons, it is usually a good idea to negotiate this agreement with the help of a skilled family law attorney who is looking out for your best interests. 
  • Live physically separate and apart: To file for a no-fault divorce, you must live separately from your spouse for at least six months if you have no minor children, and at least one year if you have children. “Living separately” generally means living in different locations and ending your spousal relationship. This separation must be continuous and at least one of the spouses must have the intention of separating permanently. Any interruption to the separation (even cohabitating for one night) will restart the clock and delay the process.

Fault-Based Divorces

Virginia allows you to file for a fault-based divorce based on one of the following grounds:

  • Adultery: Clear and convincing evidence of adultery or other sexual acts outside of marriage.
  • Cruelty: Reasonable fear of bodily harm or extreme emotional harm.
  • Willful desertion or abandonment: One party moving out of the marital residence without the consent of the other.
  • Incarceration: A felony conviction with a sentence of at least one year. 

There are some advantages to seeking a fault-based divorce. For one thing, there is no waiting period if the divorce is sought based on adultery or felony conviction. Secondly, fault may be a factor in deciding issues such as division of marital property, spousal support, and child custody. That said, it will not be the only factor, and there may be other issues that are more important in making some of these determinations.

The downside to a fault-based divorce is that you will have to prove fault in court, which will make the case more complicated. Your spouse may fight the accusations of fault you are making, which could lead to a costly and protracted court battle. For this reason, pursuing a fault-based divorce should only be done if you have sufficient evidence to prove your claims, and if you have a seasoned divorce lawyer in your corner with the proven ability to make a strong argument on your behalf.

Contact the Straw Law Firm for Help with a Virginia Divorce

Getting a divorce in Virginia can be confusing and complicated. Before you begin the process, call the Straw Law Firm at (434) 616-2760 to go over your options and determine the best legal route for your situation. You may also message us through our online contact form or stop by our Forest, VA office in person at your convenience.