United States: Considerations In A Divorce Involving A Disabled Child

Last Updated: July 20 2017
Article by Amanda B. Clayman

The parents of a child with special needs have a higher divorce rate than the overall population. Unique and complicated issues can arise when parents of a child with disabilities seek a divorce. Below is an overview of issues that should be considered in a divorce involving a special needs child:

Parenting Time Schedule. Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act ("IMDMA") specifically provides that when a court is allocating parenting time " according to the child's best interests," the court shall consider many factors including, the "mental and physical health of all individuals involved" and the "child's needs." See 750 ILCS 5/602.7(a), (b)(7) and (b)(8). In light of the clear consideration for a child's health, a more typical alternating parenting schedule may not be feasible given a child's specific needs or disability. For example, it may be more difficult to transfer a child with certain disabilities between homes. Additionally, transfers and transitions and/or extended time away from one parent could be more challenging for certain children. The bottom-line is that both the parents and the attorneys will need to be prepared to think "out of the box" to make sure a child has quality contact and time with both parents in a way that best meets his or her unique needs.

Of note, removal of a child from the State pursuant to section 609.2 is typically complicated and challenging. Such a request is likely to be even more challenging when a child with special needs is involved as travel may be more difficult as might being away from medical professionals. On the other hand, the support of family and other institutions in such a situation might be a compelling reason to allow a requested removal.

Parental Decision Making. Similar to the allocation of parenting time, the allocation of significant decision-making responsibilities should also be determined in accordance with the child's best interests and, like parenting time allocation, shall consider a child's health and needs. See 750 ILCS 5/602.5. Under the law, the areas of decision-making that are allocated between the parties are: education (including the choice of schools and tutors); health (including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs); religion; and extracurricular activities. See id. Typically, parents will need to make more frequent decisions relative to a disabled child's health and medical care and education. There are likely more frequent medical appointments and more medical professionals involved in the child's care. Similarly, there are likely more academic needs and issues that will arise. Parents of a child with special needs will need to be able to make frequent decisions together about complicated issues. In the event the parents do not have a good working relationship or have poor communication between them, one parent should be assigned decision making responsibility for all of the above areas or the decision-making allocation for each of the outlined categories, could be split between the parties. In making any allocation of the decision-making areas between the parties, it should be remembered that many of these areas are interconnected with a child with special needs. For example, educational decisions may necessarily involve health and medical related decisions in many circumstances such as deciding medications, therapies available at school, and other similar considerations.

Another consideration relative to decision-making is that in contrast to support, which may be available after age eighteen for a child with a disability (discussed below), an agreement or judgment dictating parental decision-making (and parenting time) necessarily concludes at age eighteen regardless of a child's disability. Thus, consideration in agreement as to what will transpire after age eighteen should be addressed if feasible. For example, while not determinative and binding, it may be persuasive to a probate court if the parties had earlier agreed and provided in their documentation to seek a joint guardianship for a disabled child and to continue to make joint decisions.

Child Support. Under the new Illinois child support statute (750 ILCS 5/505), which will become effective July 1, 2017, guidelines for the payment of child support are provided but there are specific factors that would allow a court to deviate from the guidelines based on "physical and emotional condition of the child and his or her educational needs." See 750 ILCS 5/505(a)(2)(D). Additionally, the court may deviate from the child support guidelines if the application would be inequitable, unjust, or inappropriate. Reasons that a court would consider would include "extraordinary medical expenditures necessary to preserve the life or health of ...a child of either or both of the parties" or "additional expenses incurred for a child subject to the child support order who has special medical, physical, or developmental needs." 750 ILCS 5/505(a)(3.4)(A) and (B). The consideration of a child's special needs is also specifically noted in section 3.7 concerning child care expenses where the statute notes that "Child care expenses due to a child's special needs shall be a consideration in determining reasonable child care expenses for a child with special needs." 750 ILCS 5/505(a)(3.7). Thus, in determining the amount of child support to be paid, it is clear that a child's special needs would be considered and likely would impact such an award.

Further, section 513.5 governs the support of a non-minor child with a disability. The section specifically provides that the court may award sums of money for the support of a child who "has attained majority when the child is mentally or physically disabled and not otherwise emancipated." The section allows for the support to be paid to one of the parents or to a trust. It is important that a party seeking such support consult with an attorney to make sure the application is timely made and correctly prepared.  

Maintenance. Illinois law states that, once it has been determined that a spouse is entitled to maintenance, the court will consider "any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage" as well as "any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought," when determining the duration and amount of maintenance a spouse is to receive See ­­­­­­­­­­­­­­­­750 ILCS 5/504.  It is possible under the law, and regardless of the length of the parties' marriage, that support could be awarded to a spouse who is responsible for the care of a disabled child if such care limits the party's realistic ability to earn income.

Allocation of Assets.  Similar to support, the allocation of property could be impacted by a child with special needs if it was demonstrated that a parties' future ability to accumulate assets would be impacted by caretaking responsibilities. See 750 ILCS 5/504(d)(11). Likewise, a party's contribution to the care of a disabled child might also be a factor considered by the court. See 750 ILCS 5/504(d)(1).  Finally, the parties could agree to set aside a portion of their estate at the time of their divorce for the benefit of a special needs child in trust or such other instrument as advised by an attorney specializing in special needs trysts.

Structure of Payments. In considering all of the above financial issues, it is important that the parties and their attorneys consider the best way for support payments to be made (both before and after majority), how life insurance should be structured, and how assets should be allocated to ensure that nothing would impact a child's rights to Supplemental Security Income, any home-based support provided pursuant to the Home-Based Support Services Law for Mentally Disabled Adults, and any other State, federal, or local benefit available to the child. It is likely that special needs trusts or other instruments should be employed and it is essential that a special needs attorney be consulted to make sure any agreement is structured in a way that the parties and the child are protected and rights to other benefits are preserved and maximized.

Divorce is difficult under any circumstances, but a divorce involving parties with a special needs child is even more difficult, as well as complicated since virtually every aspect of the divorce will be impacted by additional and different considerations. This will likely come as no surprise to the parents of a disabled child but it is important that the child's and family's needs in regards to the disability be considered and contemplated throughout the process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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