Divorce Attorney Tip: 3 Mistakes to Avoid When Divorcing as a Special Needs Parent

Last updated on: May 4, 2022

Finding a divorce attorney who understands your situation can feel like a difficult task. When you and your spouse are parents to a child with special needs, it gets even harder.

As a divorce and estate planning attorney who works regularly with parents or caregivers of children with special needs, I can tell you that if you plan to get a divorce and your child has special needs, you face a lot of decisions that could negatively affect your child.

Here are three mistakes to avoid.

Neglecting to Consider Indefinite Child Support

In Texas, indefinite child support is an option that parents can take if their child needs financial assistance to care for them. If they are incapable of caring for themselves and their special need—or the cause of that special need—exists before they turn 18, they are eligible.

Caring for someone with special needs is expensive, so considering this option is essential if you think extended care and support will be necessary. Whether your child needs medication, therapy, or in-home care, indefinite child support could offer help.

Forgetting to Take Benefits into Account

Many children with special needs qualify for benefits through social security, Medicaid, or other services. To continue qualifying for these benefits, your child may not be able to have an income, or they may only be able to have limited funds provided to them.

In divorce, the couple decides how funds and property will be split, either through mediation, negotiation, or litigation. In some cases, parents of a child with special needs may agree to contribute to the care of that child. It is critical that you and your attorney understand this area of the law. Without a proper estate planning strategy, money that goes to the child could be considered income, thus making the child ineligible for benefits.

Failing to Make a Decision about Guardianship

Guardianship is often an issue that parents of children with special needs must address. Will the child be able to function without partial or complete care? If not, a guardianship will be necessary. Usually, one parent or the other becomes the legal guardian.

Another common mistake parents of children with special needs make while divorcing is failing to fully educate themselves on what future care and expenses are for their child or children. Determining who will be the guardian of the person or estate are important things to resolve. It prevents future litigation and conflict.

Under the law typically, a husband and wife or joint managing conservators can serve as co-guardians. The question remains if the co-guardians can serve in such a role amicably, but that is determined by case.

Talk to a Divorce Attorney Who Understands Your Needs

The bottom line is that your attorney needs to understand the intricacies and nuances of family law, guardianship, and special needs estate planning if you plan to get a divorce and your child has special needs.

Does this describe your situation? I am here to help you through this confusing time. Get in touch with me today to discuss your case and get answers to your questions now.

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