By: Beverly Via
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Divorce with Special Needs Kids
This article was written by Hance Law Group associate attorney Beverly Via.
When parents divorce, it can be challenging to factor in what the children need from the time of the divorce to when they graduate from high school. When parents of children with special needs divorce, however, the challenge is even greater, as those children’s needs can and sometimes do extend well beyond they reach adulthood.
In Texas, Chapter 154 of the Texas Family Code addresses what’s considered a disability and how child support works in those cases. One of the most important things to know, going into a divorce where a child with special needs is involved, is that there’s a fairly high burden of proof that goes into demonstrating that a child has a disability that requires child support beyond the typical standard of turning 18 or graduating from high school.
The disability has to be one where the child is not capable of self-support upon reaching that 18-year-old or high school graduation milestone, and it has to be brought to the court’s attention before the child is 18.
A severe physical disability, like cerebral palsy or quadriplegia, would typically qualify, as would a developmental disability or a genetic condition affecting development, such as Down syndrome. A relatively high-functioning person who has some other issue affecting one’s ability to hold a job, like impairment of judgment, may also qualify as a disability requiring support beyond those typical milestones.
Child support that extends into adulthood for disabled offspring has the exact same mechanism as standard child support – it’s paid through the State Disbursement Office, it’s reviewable every three years (or if the non-custodial parent has a material and substantial change), and it’s enforceable through the Office of the Attorney General’s office.
The one factor that could be different for the couple, however, is where the money goes. In most child support cases, child support is either issued as a check mailed to the custodial parent, or it direct deposits into the custodial parent’s bank account. But because child support could potentially affect the adult offspring’s eligibility to qualify and receive social security disability benefits, it should be paid into a special needs trust that is not considered property of the child. (Typically, the custodial parent will be in control of that trust; however, the terms of the trust, which should be created before the child support order is entered, govern who is named Trustee and therefore receives and manages the child support.)
There are a range of experiences and emotional reactions in this particular type of divorce. In many cases, parents will be cooperative and concerned with the well-being of their special needs child, but for some, the thought of life-long child support payments might be distressing, and disputes can arise over whether the disability qualifies for support.
The stress over having a special needs child can be a contributing factor in a divorce, so divorces involving a disabled child can be emotionally charged. Also, custodial parents who are used to have to advocate for their children, especially with representatives of slow-moving bureaucracies, can find the divorce process challenging, and those frustrations can spill over into divorce proceedings.
Because these divorces can be emotional and typically require more customization than a more typical divorce, the collaborative process can be a very effective approach for divorcing couples in this situation. The challenges inherent in these cases benefit from a solution-oriented process in which creative solutions can be discussed and negotiated, and where a mental health professional can be present to help navigate the sometimes-choppy waters that arise in these divorces.