Divorce and Disabled Children

 Posted on September 08,2017 in Children of Divorce

Too often, disabled children, whether they are adults or minors, become points of contention during a divorce. Raising a child with a disability can be quite expensive in in the United States, and while studies show that the rate of divorce for parents of a disabled child is very high, you should never make your child feel as though he or she caused your breakup. It is also important to ensure that your child is cared for regardless of circumstances.

Financial Issues

One of the first priorities that you should have as a parent in this situation is to ensure that your child does not lose the benefits for which he or she has previously qualified. Supplemental Security Income (SSI) and Medicaid are affected by the amount that the person (or their caregivers) makes per month, so if, for example, you are awarded spousal support in your divorce decree that pushes you into a new tax bracket, your disabled child could become ineligible for all or part of his or her SSI. This can be avoided if your divorce agreement is written carefully. Generally, in Illinois, this means establishing what is referred to as a Special Needs Trust, into which the paying parent pays their child support payments. The reason for such stringent rules is because in the eyes of the Social Security Administration (SSA), child support belongs to the child not to the custodial parent.

The appropriate special needs trust must meet the requirements set forth by federal law, and no exceptions are generally allowed. The trust must be a “sole benefit,” irrevocable trust, meaning that only the person in whose name the trust is opened (the disabled person) may have access to the funds, and the trust cannot be inappropriately closed or altered. It is extremely important you familiarize yourself with this information, as it is not utilized often in family court.

Changes in Routine

It may seem self-evident, but another very significant part of helping a disabled child through a divorce is to ensure that their routine is disrupted as little as possible. Communication and understanding is key both between you and your spouse and between your child and the both of you. While it may be common to treat a disabled child as though they are unaware of what is going on—especially when a mental or developmental disability is present—it is always better to presume competence. If your child has an active voice in how the process affects them, it will create fewer practical concerns for both him or her and you.

Be advised that in some situations, a judge may appoint a guardian ad litem to protect the best interests of the disabled person if he or she does not feel as though they are being addressed. This is somewhat common in divorce cases, but this is almost never adversarial. A guardian ad litem is not pitted against parents; instead, he or she focuses on the best interests of the child.

Contact a Divorce Attorney

Divorce is difficult enough for the average person, but for the disabled, it can upend their entire world. Ensuring that you have a competent and intelligent attorney on your side can make a big difference. The compassionate Wheaton divorce lawyers at our law firm understand that preserving as much of the status quo as possible can be extremely important for a disabled person. We will work hard to help you find the best possible outcome for yourself and your children. Call us today for a free consultation.

Sources:

http://www.ssa.gov/disabilityssi/ssi.html

http://www.ilga.gov/legislation/ilcs/documents/075000050k513.htm