Getting divorced when you have a disability can raise unique challenges. If you and your partner are getting divorced and have a child with special needs, your parenting plan and child support plan will need to factor in your child’s ongoing medical and financial needs.
In this article, Truce Law, a family law firm in the state of Washington will explore the specific concerns individuals with disabilities and special needs might face during divorce, particularly focusing on health care access, spousal support, and access to government benefits. This article isn’t meant to be legal advice. If you have specific questions about your situation, consider scheduling a discovery call with Truce Law today to learn more.
For parents of children with disabilities and special needs, we’ll explore the specific parenting plan and child support considerations you’ll want to think about as you navigate co-parenting with a special needs child.
Here are the topics we’ll cover:
- Capacity
- Child Custody and Disability
- Health Care Benefits and Divorce When You Have a Special Needs Child
- Health Care Benefits and Divorce When You Have a Disability
- Special Needs Trusts
- Adult Children and Child Support
- Guardianships
- Why Consider Collaborative Divorce for Your Special Needs Divorce?
Let’s explore how disability and special needs can impact your divorce and parenting plan.
Capacity
If your spouse is under a guardianship, his or her guardian may need to be involved in your divorce. Washington law (RCW 11.130.330) allows the adult’s guardian to petition for a divorce, or to “support or oppose a petition for divorce.” If your spouse is under a guardianship, you’ll want to speak to a divorce lawyer before you proceed.
If you are getting divorced after 50, and there is any question about your partner’s mental capacity to make medical or financial decisions, this could also raise issues and concerns during your divorce. A divorce lawyer can help you explore your next steps.
Child Custody and Disability
If you are getting divorced and have a disability, you might be concerned about losing custody of your children. There might be a great deal of fear of encountering ableist judges or social workers if you and your partner take your custody dispute to court.
Here’s the truth. Individuals with disabilities cannot lose their parental rights based on their disability alone, though when these custody cases go to court, the court may award physical custody to the parent most able to provide for the children’s daily needs, based on what the court deems to be in the children’s best interests.
The collaborative divorce process allows individuals with disabilities to work out a co-parenting plan in private without the involvement of the courts. This can afford you and your former partner the ability to create an empowering co-parenting plan that utilizes each parent’s individual strengths.
Health Care Benefits and Divorce When You Have a Special Needs Child
When a couple with a special needs child gets divorced, the parenting plan will often include arrangements to ensure that the special needs child has continuity of health care benefits. This often means that the parent currently providing health care benefits to the child through work-sponsored health care benefits, or through a health plan purchased on the private market will continue to do so. Yet, this doesn’t mean that this parent would necessarily be solely responsible for the costs of providing these benefits.
A child support order could include provisions to ensure that the other parent contributes to the cost of these work-sponsored benefits, or to the cost of privately purchased health care benefits. Under Washington state law (RCW 26.09.105) both parents are required to provide medical support for their children. The costs of health care for a child must be included in an order for child support and payment for the child’s health care coverage must be divided between both parents.
Yet, every family’s situation is unique. There are situations where one parent may be excused from paying for health care coverage under child support laws. When cases like this go before the court, the judge would look at each parent’s financial situation and ability to pay, and each parent’s proportionate contribution to the children’s support.
Sometimes the parents may collaborate to purchase their special needs child a new insurance policy to which both parents contribute. In other instances, divorce could result in the special needs child qualifying for insurance through Medicaid, if one or both parents qualify for assistance after their divorce. (Divorce can often result in one or even both spouses having less reportable income each year, thus putting one of both parents under Medicaid’s income thresholds).
If a child qualifies for Medicaid or Medicare and already receives public benefits (for example Social Security Benefits available to disabled children under 18), both parents might also need to consider how child support payments or alimony could affect the child’s access to these programs. In this situation, parents may be able to establish a special needs trust into which child support payments are deposited, so that child support payments don’t affect the child’s continued access to benefit programs. A special needs lawyer can help you explore your options.
Special needs children might have additional medical costs that might not be covered by insurance. When parents are working out their child support agreement, these costs must also be considered. Estimating these costs can be difficult, and parents might bring in financial advisors or other experts to estimate long-term costs. For example, a special needs child might need ongoing support after he or she turns 18, and a divorcing couple might need to discuss how they’ll handle these costs and plan accordingly. Ongoing support for a special needs child’s medical, nursing care, or living expenses might also be outlined in the divorce agreement.
The collaborative divorce process can be beneficial for parents with special needs children, because it keeps both parents in control of what happens next. With the collaborative divorce process, parents of special needs children can bring their special needs attorney to the negotiating table to help them work out a divorce settlement that protects everyone’s rights and finances. Truce Law is a collaborative divorce law firm in the state of Washington that can help your family navigate the crucial questions that can arise with special needs divorce.
Health Care Benefits and Divorce When You Have a Disability
Because parents can continue to name their children as beneficiaries on their health insurance plans, special needs children benefit from continuity of coverage when their parents get divorced. Yet, the same is not true for special needs spouses. When a couple gets divorced, and the special needs partner receives their health care coverage through their spouse’s health insurance coverage or work-based coverage, divorce could result in lost coverage for the special needs partner.
There are still some solutions you and your spouse can explore to help ensure you receive the medical coverage you need:
COBRA
If you receive health care benefits under your partner’s health insurance plan, you may be able to continue to purchase benefits (or your partner can purchase benefits for you) under COBRA. Coverage under COBRA is temporary (it lasts anywhere from 18-36 months). The coverage must be paid in full. Yet, COBRA can buy you time to figure out your next move.
Re-Qualifying for Medicaid or Medicare
If you lost your government benefits due to the “marriage penalty,” divorce might result in you re-qualifying for benefits if your income, when single, falls below state thresholds. If you lost your Medicaid or Medicare benefits when you got married, or were told you wouldn’t qualify when you were married, you might want to explore whether you could qualify with your post-divorce income.
Structuring the Divorce Settlement to Preserve Government Benefits
If you already receive government benefits, you’ll want to consider how your divorce settlement could potentially impact your access to government benefits. For example, alimony payments could potentially put a special needs spouse over government income thresholds to receive support. When special needs couples choose collaborative divorce, they can come up with their own creative solutions and make financially sound decisions for both parties.
In a collaborative divorce, the couple could decide on their own that alimony could be put into a special needs trust to preserve the special needs spouse’s ability to access government benefits. In other situations, the disabled spouse might receive more assets during the divorce rather than receive alimony to keep their income below the thresholds for government benefits.
Supporting a Disabled Ex
When a non-disabled spouse divorces a special needs spouse, the court could require that the non-disabled spouse pay spousal support and provide health insurance to their former spouse. If your disabled spouse cannot work to support themselves, this is one of the rare situations where the court might order permanent spousal support.
When couples choose the collaborative divorce process, they can decide the best way forward, given their situation and employ solutions that might not be available to a judge. For example, some couples might choose to separate rather than divorce to ensure that their special needs partner continues to have access to health insurance benefits. If you have a court-ordered guardianship, you may also be able to include your spouse on your health insurance plan, so guardianship might be another option that divorcing couples can explore.
When special needs couples choose collaborative divorce, they can come up with their own creative solutions and make financially sound decisions for both parties. In a collaborative divorce, the couple could decide on their own that alimony could be put into a special needs trust to preserve the special needs spouse’s ability to access government benefits. In other situations, the disabled spouse might receive more assets during the divorce rather than receive alimony to keep their income below the thresholds for government benefits.
The loss of health care benefits during divorce can be one of the costliest impacts of divorce for disabled individuals. But when one partner is disabled and relies on a spouse’s health care coverage to keep their medical costs low, divorce can be especially devastating. The good news is that with collaborative divorce, you and your spouse can find creative solutions to help you move forward peacefully.
Special Needs Trusts
If you and your spouse already have a special needs trust in the name of your special needs spouse or child, this trust could be an important tool to help ensure that child support or alimony payments don’t impact your spouse or child’s ability to continue to receive government benefits, especially if your child or spouse already receives government benefits. An existing special needs trust would be considered the disabled partner’s separate property and cannot be subject to division in the divorce settlement.
If you don’t already have a special needs trust, or if your spouse or child would need to qualify for government benefits after you get divorced, the use of a special needs trust could become more complicated. Certain government programs have a “look back” period to determine eligibility. Because the laws regarding special needs trusts can be complicated, it’s wise to speak to a special needs lawyer when navigating your divorce if you want to use this financial tool.
With the collaborative divorce process, couples get to create a personalized team to help them navigate their divorce. For a special needs divorce, the collaborative divorce team will often include a special needs lawyer to help the couple navigate special needs trusts and other financial instruments and strategies.
Adult Children and Child Support
When couples are getting divorced and have adult children, they can often get divorced as if they are going through a divorce without children, because the need for a parenting plan and child support is off the table. But, when couples have a special needs child, it’s different. When special needs children turn 18, they might be entitled to receive continued support from both parents, especially if they will need ongoing care, or if a guardianship will be created. Ongoing support could include both parents contributing to nursing care, ongoing medical care, and more.
Collaborative divorce allows both parents to come up with creative solutions that can protect their children’s access to government benefits while also offering their children the ongoing support they need. With a collaborative divorce, you can bring a special needs attorney to the negotiating table to help you, and your former spouse, explore options to ensure that your special needs child receives the ongoing support he or she needs, while also protecting your assets.
If you are getting divorced and have adult children with special needs, or have an adult child under a guardianship, you might want to speak to your divorce lawyer about how your child’s needs could impact your divorce settlement. The collaborative divorce lawyers at Truce Law in the state of Washington can help you explore creative solutions while helping you keep your divorce amicable.
Guardianships
If you have a special needs child, you and your divorcing spouse might need to explore whether you’ll need to establish a guardianship for your child when he or she turns 18. Guardianship is often reserved only for situations where an adult child truly cannot meet his or her needs. There are alternatives to guardianship that parents can also use when children need additional support but may not need a full-on guardianship. If you have a child with special needs, you and your spouse will likely want to include in your parenting plan any plans you have for getting a guardianship or alternatives to guardianship you plan to implement as your child comes of age.
Sometimes, but more rarely, a guardianship can be established for a special needs spouse who needs ongoing support. If you are your spouse’s sole caretaker, or next of kin, a guardianship is one way you can preserve your ability to care for your spouse, or make legal and nursing decisions, while still being able to get divorced, get remarried, and take the next steps you need for your own life and wellbeing.
Why Consider Collaborative Divorce for Your Special Needs Divorce?
With collaborative divorce, you and your spouse agree to settle your divorce in private and outside of court. Both you and your spouse will each be represented by your own collaborative divorce attorney—a lawyer committed to helping you resolve your divorce amicably, while also representing your legal interests. With collaborative divorce you get the best of both worlds—a divorce attorney skilled in mediation, but with the added benefit of legal counsel that mediation alone cannot provide.
With collaborative divorce you have a range of options on the table:
- You can agree to a separation agreement that protects you and your spouse financially, while preserving your special needs spouse’s access to your health benefits.
- You can work with a special needs attorney during the divorce settlement process to help you explore how the use of a special needs trust can help you protect assets, and governmental benefits.
- You can explore creative options for dividing property and assets.
- You can create a parenting plan that works for your family given your child’s special needs rather than relying on a judge to decide in the best interests of your children.
- You can create an empowering parenting plan with your disabled partner.
- You and your former spouse can plan for your special needs child’s future, together, without involving the court.
- Special needs parents face additional stressors and challenges. The skills you learn during collaborative divorce can help you navigate conflict and challenges in your co-parenting relationship.
These are just a few of the benefits of collaborative divorce.
If you want to get divorced, but don’t want to fight in court, consider reaching out to the Washington state collaborative divorce attorneys at Truce Law today.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.