Divorce is an unfortunate, but sometimes necessary, event that families have to deal with. For families with children who have special needs, there are additional considerations that should be dealt with before a separation agreement is finalized.
At every step of the process, it is important to consult with a local, experienced special needs attorney to make sure that whatever arrangements are made keep the well-being and security of the special needs child in mind. The following concerns can go beyond the expertise of a typical divorce attorney.
One particular area to watch out for when creating a separation agreement involving special needs children is how child support payments are handled. Direct child support can result in a reduction in a special needs child’s SSI and Medicaid benefits. If the child support and any other payments for the child’s benefit are large enough, they can disqualify the child from SSI and Medicaid altogether.
The key to getting around these concerns is to make sure that any child support payments goes to a special needs trust. Setting up a special needs trust is something that should only be done with the assistance of an experienced special needs attorney.
Any separation agreement should also specify that all potential payments due to the child go to the child’s special needs trust to avoid endangering the child’s benefits. Anything where the child would be listed as a beneficiary should name the child’s trust instead of directly to the child in their name. Potential things to look out for include life insurance policies, brokerage accounts, retirement benefits, and other similar items.
Another area that may need to be discussed are continuing support arrangements after the child turns 18. If a special needs child is unlikely to be able to live independently as an adult, the separation agreement should specify that support arrangements should continue for an extended period of time. The separation agreement may need to require the party paying support take out a life insurance policy to cover future support payments in case of an untimely death.
If the child is likely to require a guardian after turning 18, the separation agreement should also discuss who should be the child’s guardian and what the decision making arrangements will be into the future.
For questions about how to prepare for a divorce involving special needs children, please call Martha C. Brown & Associates at (314) 583-0590.
