what do parents of special needs children have to consider before divorce?

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) 616-2760 or reach out to us online to schedule an initial consultation.

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