Divorce for parents of children with autism or other special needs may be a bit more complex as a matter of law. The child support guidelines for instance do not often take into account the additional time and money required to assist children with autism or other special needs. There will be issues such as special needs trusts, future guardianship, and other such matters that must be address in a divorce agreement.
In addition, divorce for parents of children with special needs can be more difficult regarding custody and creating a workable parenting plan. Parents may disagree about the level of care necessary for their child or children. There may be disputes about emancipation language or whether the child will ever be legally emancipated.
Although there is an increasingly greater general awareness of such issues, an attorney representing a parent in such a matter will have to be cognizant of all the added legal issues and educate the court and opposing counsel on how to sensibly address such matters.
Parenting Time & Custody
Children with autism may require additional consistency in their schedule. This may lead to more limited parenting time with the non-custodial parent than in most matters.
Some children with special needs may also reside in residential homes or other alternative living conditions as they get older. A divorcing couple may disagree about the placement of a child in such locations, which can complicate settling a divorce.
There may also be concerns about whether or not to accept IEP’s or out of district placements for a child in a school district with one parent feeling out of the loop or not agreeing with a plan that perhaps the other parent does agree with. Such issues can be difficult even in an intact family but may be exacerbated in a divorce setting.
In addition, although many people reside together in the same house while a divorce is pending, such added tension may not be in a child with special needs’ best interests as, depending upon their diagnosis, they may have greater sensitivity to arguing or other sensory triggers.
Holiday parenting time and vacation parenting time may be more rare in cases involving parents with a child or children who have autism or who are disabled.
Equitable Distribution and Finances
Special needs trusts may need to be discussed. Many children with special needs are still high-functioning and/or have a high IQ so college costs may need to be discussed. The Marital Settlement Agreement should set forth what types of college savings, trusts, or other financial assistance will be enacted and who will be responsible for adding funds into such accounts and ensuring that such funds are not inappropriately depleted.
Child Support and Alimony
Alimony may be impacted if one parent cannot work because of added childcare requirements. Likewise, the party receiving child support will likely have a claim for additional child support and for a longer period of time as there are many additional expenses for most children that have special needs, much of which is not covered by insurance or otherwise subsidized by grants.
As noted above, emancipation may prove to be a big issue in a divorce involving children with special needs.
Every divorce has its own unique facts and areas of complexity. Unfortunately, parents of children with special needs may be at an increased risk of divorce.
Both parents to such a divorce should remember to always act in all of their children’s best interests, to communicate with one another and their attorneys as effectively as possible, and to be fully informed of their rights and their children’s rights when getting divorced, engaging in disputed custody, or otherwise addressing a family law issue involving a child or children that have special needs.
The following is a guest-post from a friend that recently went through a divorce. I asked if they would write up some personal thoughts about the process. They asked that they remain anonymous, which I have honored. The below should be helpful to anyone going through a divorce or considering a divorce to see what another person’s perspective was on the process and the lessons learned.
Divorced: What I learned – A personal experience.
Going through a divorce is not an easy process for
anyone. It not only affects the
participants in the divorce, but it can also have a significant impact on their
family and friends. Couples that have
been married for a long time need to be particularly sensitive to these issues. If there are children at home who are not yet
emancipated, then child custody issues can be difficult waters to
navigate. And of course, there are
always the financial considerations as well, the cost of the divorce, living
arrangements after the divorce, and so on.
Here is my personal experience. Even though I was married for many years and not happily married, I still felt betrayed when I was served with divorce papers. Feelings of anger, resentment and abandonment abound. My first thought was that my spouse wasn’t getting any of my hard- earned money. I soon found out that in equitable distribution states such as NJ, the split is often 50-50, although not always necessarily so. In other words, it was considered our money whether I liked it or not.
The first step in the process was to hire an attorney to defend myself. I Interviewed several divorce lawyers prior to hiring (this is highly recommended). Ask yourself, do you want an attorney who is aggressive and adversarial? Or, do you want an attorney who seems reasonable and will help you settle quickly. I chose option 2, with the hope to settle as quickly and fairly as possible.
Although I made an excellent decision and was very happy with my divorce attorney, I wasn’t so fortunate with the opposing side (my spouse’s attorney). That attorney was unreasonable, buried us with paperwork and appeared as though the desire was to prolong the divorce proceedings for as long as possible. From my perspective, this was not good. The clock keeps ticking, attorney fees are soaring, hostility increases, and although usually upbeat, depression starts to take hold. The worst part of this situation is that you’re stuck. You can’t control the other attorney; all you can do is continue in good faith with efforts to work out a fair and equitable settlement.
In my case, things ended well. Why? My spouse (of his own free will) fired the attorney. Fortunately, my spouse could see that the attorney my spouse hired wasn’t acting in good faith to settle nor, was this attorney communicating effectively with my spouse.
After that it was a matter of sitting down with my spouse
and working out what we as a divorcing couple would consider fair and equitable
to each of us. This took less than
one-half hour. The information was
forwarded to my divorce attorney who incorporated it into a Marital Settlement
Agreement, which was then signed and notarized by both parties. Proceedings went quickly thereafter, as we
appeared in court for an “uncontested” divorce.
If you are going through this process, what I encourage you to do is to sit down with your spouse and work out what you feel would be a fair and equitable arrangement. You may want to use a mediator to accomplish this.
Try to look at the big picture, your home (or homes), automobiles, pensions, savings, child custody arrangements (if applicable), medical insurance. Don’t get bogged down with insignificant stuff. And concede on certain conditions, if some of your more important terms are met. Remember the settlement agreement will probably not be perfect but should be as equitable as can be given the facts of the marriage. And If you can’t settle then others will do it for you. Do you really want strangers or one judge sitting on a bench splitting up your assets and deciding your future? I know I didn’t.
I have found that one of the most difficult parts of a New Jersey Divorce for my clients is the concern that their “dirty laundry will be aired.” There is nothing more personal than a marriage and our spouses usually know more about us than anyone else in the world. So it only makes sense that some of that information may be used as ammunition in a high-conflict divorce. That is one of the reasons that many jurisdictions originally created evidentiary exemptions such as “spousal immunity.”
Although New Jersey is now a “no-fault” divorce state–meaning causes of action such as adultery are no longer utilized in the pleadings (the more general “irreconcilable differences” is by far the most popular divorce count), there still exists a certain percentage of cases where even the initial pleadings contain very private information, such as allegations of spousal abuse, adultery, and so on.
That said, a New Jersey Divorce is generally carried out in a very public setting—the Courtroom. If the parties are not able to work out an agreement and file a formal divorce complaint, then they will appear (generally) in open court, file documents that will (generally) be public record, and engage in a public process. This blog post will primarily address the issue of are New Jersey divorce records public? It will also discuss methods to be utilized to minimize the public nature of divorce proceedings.
Are New Jersey Divorce Records Public?
The basic rule addressing the privacy of court records is found in New Jersey Court Rule 1:38, which states that such records are generally “open for public inspection and copying except as otherwise provided in this rule…” This means that the standard course of business is for such records to not be confidential but there may be instances and exceptions. It further states that: “Exceptions..shall be narrowly construed in order to implement the policy of open access to records of the judiciary.” This of course means that the law truly does favor transparency for its records and proceedings. In other words, you must have a compelling reason to seal records or otherwise render them confidential.
Subsection 2 of Rule 1:38 provides a very broad reading as to what constitutes a “record,” including “any information maintained by a court in any form in connection with a case or judicial proceeding, including but not limited to pleadings, motions, briefs and attachments, exhibits, and so on. This is one of the reasons why another Court Rule requires that any personal identifiers such as social security numbers be redacted from many filings with the Court. This subsection goes on to state that any order is open to the public and that any transcript or recording of a court session, trial, or hearing is open to the public. So again, for those favoring privacy this Court Rule is not giving you much to go on.
Subsection 3 of Rule 1:38 provides the exceptions, which include the broad: “records required to be kept confidential by statute, rule or prior case law unless otherwise ordered,” internal records of the court such as draft opinions, certain criminal records, expunged records in criminal proceedings, records relating to child victims of abuse or assault, names and addresses of victims or alleged victims of domestic violence, and then a specific sub-section (12(d)) relating to family courts:
Family Court Specific Exceptions
Rule 1:38-3(d) states that the following records may be exempt/private:
Family Case Information Statements;
Marital Settlement Agreements and other Settlements not signed by a Judge;
Confidential Litigant Information Sheet Forms;
Juvenile Delinquency Hearings and Expunged Juvenile Records;
Medical, Psychiatric and Drug Reports and evaluations for custody;
Certain Domestic Violence Records;
Certain DCPP Records;
Child Custody Evaluations;
and Child Welfare Check Records.
Privacy in the Court Room
There are certain restrictions on use of cameras and video recording in the courtroom. That said, family courts including trials are often open to the public. Certain juvenile hearings are in closed session, but generally everything must be open to the public.
One exception may be what is called in camera review, which is a mechanism by which a judge may take testimony in chambers. This mechanism is often used when a child has to testify. Although courts generally do not accept the testimony of children, at a certain age they may use such in camera review. If it’s part of a trial then the other party/their attorney are entitled to be present so as to satisfy “due process” constitutional laws. Click here to read our article on in camera testimony of children in family court disputes.
As the general court rule is that all hearings must be done in public, it should be noted that there are certain exemptions, including ones specific to divorce and family law. Rule 5:3-2 states that private hearings in family court actions may always be discretionary by a court but limited to the welfare or status of a child. DCPP actions to remove custody of parents are also generally held in closed court and the records sealed.
Rule 1:2-1 addresses the sealing of records and notes that there is a requirement of a “showing of good cause.” Likewise, many domestic violence hearing records may be sealed consistent with N.J.S.A. 2C:25-33(a).
It should also be noted that although there are limited circumstances whereby a party can file a lawsuit anonymously or by utilizing their initials, they are exceedingly rare in family court cases for divorce. Rule 1:4-1 requires full names of all parties to a New Jersey action and such limitations only exist in rare situations such as involving children or victims of abuse.
How to Maximize Privacy in a New Jersey Divorce
The confidentiality of records is something I use to deal with very often when I previously served as Deputy County Counsel of Somerset County. The County operated a jail, a sheriff’s office, a mental health center, had over 1,500 employees and an HR Department, and much more. We received hundreds of OPRA requests each year and many of them found their way to my desk for legal input.
The Open Public Records Act favors transparency, but at times HIPAA information would be requested, or criminal records would be requested, and so on. This is all a long-winded way of saying that the privacy of records is always complex and with competing interests. Personal rights of privacy versus general rights of the public to have information compete in interesting ways. Like the Open Public Records Act (“OPRA”), the above laws provide a framework favoring transparency. But I would imagine for a lot of people reading this blog post and facing a divorce that’s not very reassuring. So what can be done, if anything, to maximize privacy in a New Jersey Divorce?
First, utilizing mediation, arbitration, or working out an agreement outside the court system will help to maintain the privacy of your proceedings. Each of your attorneys have attorney-client confidentiality and work-product requirements that will help keep your negotiations, your discovery, and your ultimate settlement quite confidential provided you avoid court (or at least minimize your exposure to court).
The filing of Motions, public trials, and the like will only help to make your matter known to the public.
One example of this may be a case where one or both parties known they have been working under the table or otherwise engaging in a form of potential tax fraud. The Judge may be required to turn you over to the IRS if the matter proceeds to a trial. This is a somewhat boring and innocuous example of why parties may wish to pursue arbitration, mediation, or any other method they can to avoid the court system. Mutually assured destruction is usually not fun and most married couples file taxes jointly and sign-off, meaning it is often a joint problem.
Other things you can do is to, when appropriate, seek a transfer to another venue if you are a celebrity or local celebrity to gain less exposure, to have your attorney consider seeking to seal records, have certain matters heard in closed court, or to otherwise have confidentiality applied to your pleadings (but as noted above all of these things are difficult to obtain and not often allowed by the court rules).
Confidentiality and Privacy are important to all humans. We want to feel that our business is our business, so to speak. When you enter into Court you may lose some of your privacy rights. You enter into something larger than yourself—and you become a part of the court system–which is sometimes unforgiving and rigid in its view.
By working with your attorney you can discuss any and all privacy concerns and work on a plan that can minimize such concerns.