In this blog post, I will briefly review some of the unique aspects of a divorce when it involves children with special needs.
Divorce for Parents of Children with Special Needs
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. The intent of this blog post is to briefly explain the relevant law and some of the common legal issues in this scenario.
- Parenting Time & Custody Issues for Children with Special Needs in New Jersey. Children diagnosed with autism, for instance, 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 intact families, 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.
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, including education. Joint legal custody is standard in most NJ divorces, which means that both parents will be entitled to an opinion on how to proceed with important medical/health and educational issues. 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, a divorce attorney representing a parent with special needs 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. - Equitable Distribution Issues. 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.
Emancipation may also prove to be a big issue in a divorce involving children with special needs. - Divorce for Parents of Special Needs Children: Legal Guide Conclusion. 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. 
Partner with Carl Taylor, Esq.
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