Navigating the divorce process when you have a child or children with special needs can seem incredibly challenging. You and your spouse may have not agreed on your child’s needs or abilities during your marriage and these differences can be exacerbated in divorce. A one size fits all approach does not work for children with special needs. Your child’s emotional, psychological, and physical needs may be dissimilar from other neurotypical children. A parenting time plan that works for some children may have too many transitions for other children. If you are contemplating divorce in the State of Virginia, you will need the support of a skilled attorney who is well-versed in these types of cases. A proficient attorney with the right experience will ensure your rights and those of your child are upheld throughout the divorce case.
DIVORCE CASES WHEN THERE ARE CHILDREN WITH SPECIAL NEEDS
At Nova Legal Professionals, our firm has substantial experience handling divorces where children have special needs. Corrie was recognized by the American Academy of Matrimonial Lawyers for her work in preparing the booklet “Navigating the Divorce Process When You Have a Child with Special Needs.”
When there is a child with special needs our firm will help you consider what your child’s special needs are and we will walk you through how your negotiation or case needs to take your child’s needs into account. For example, the Virginia Child Support Guidelines alone will not address all of the extra expenses related to additional service, medical care, therapies, or equipment. Parents who have children with special needs may need to factor in a multitude of costs including speech, physical, behavioral, or occupational therapy; specialists like neurologists, developmental pediatricians, developmental psychiatrists, orthopedists, ophthalmologists, or endocrinologists; specific items like wheelchairs, walkers, standers, adaptive bikes, special clothing or personal care items; nonparental caregiver costs; medications; supplements; blood work; co-pays; activities; sensory items; vehicle modifications; home modifications, and other costs. Disability-related expenses will become part of the equation for your trial or for your agreement. Disability payments can be a complicating factor and child support needs to be structured so as not to lose important benefits. You and your spouse may not even agree on your child’s needs or abilities.
Generally, child support and custody end when a child emancipates. However, some parents of children with special needs will find themselves having to deal with lifelong considerations for their child and possibly even co-parenting well beyond what a typical family does. Because of this possibility, other types of experts, such as a financial advisor or trusts and estates attorney, may need to be brought in to assess the situation with your family law attorney. If you have a child with special needs, it is also important that you have an attorney that understands how child support, equitable distribution and life insurance may negatively impact government benefits unless they are paid in the form of a special needs trust.
FACTORS TO CONSIDER IN A DIVORCE
Under Virginia law, when parents separate or divorce, the courts will consider factors to determine the best interests of the minor if the parents are unable to reach a custody or visitation arrangement.
Virginia Code §20-124.3 sets forth factors for the court to consider. .For parents with a child that has special needs, certain factors such as those below can have more importance: The physical and mental condition of the child, giving due consideration to the child’s changing developmental needs; The relationship between parent and child and that parent’s ability to assess and meet the emotional, intellectual, and physical needs of the child; Each parent’s role and involvement in the upbringing and care of the child; Each parent’s preparedness when it comes to the care and needs of the child; Each parent’s involvement in handling necessary services the child needs; Each parent’s ability to cooperate and resolve disputes regarding the child and Such other factors as the court deems necessary and proper which may include willingness to work with professionals and follow recommendations and ability to obtain necessary services.
CHILD SUPPORT IN DIVORCE CASES WITH CHILDREN WITH SPECIAL NEEDS
sets forth rebuttable presumptive guidelines for determining child support payments. IN order to deviate from the guidelines, the Court must consider and make written findings regarding the factors in Virginia Code §20-108.1 which specifically includes “any special needs of a child resulting from any physical, emotional, or medical condition.” For a parent of a child with special needs seeking child support, it is extremely important to quantify out-of-pocket costs, co-pays, and even mileage costs associated with the child’s care, medication, equipment, therapies, doctor appointments, nursing services, and other related needs. The Court can increase child support over the presumptive guidelines for extraordinary expenses.
WHEN THE CHILD TURNS 18
In Virginia, child support is usually paid until the child turns eighteen years old, but that can be extended until 19 or the child graduates from high school if they are a full-time high school student who is not self-supporting and is still living in the home of the party receiving child support. Child support payments may be extended past the usual age of emancipation in cases where the dependent has special needs. In the State of Virginia, the child will need to meet certain conditions in order to continue receiving child support. These conditions include:
- The dependent is severely and permanently physically or mentally disabled
- The dependent is not able to live his or her life independently and is unable to support his or herself
- The dependent is residing in the home of the party seeking or receiving child support
It is extremely important to make plans with regards to your child with special needs before the child reaches the age of 18. Failing to plan ahead and create workable plans in the best interests of your child before they turn 18 can cause them to lose valuable benefits, therapies, placements, and/or necessary treatments. Parents with children who have special needs should consider the following:
- Guardianship – The dependent may be unable to make any legal decisions for him or herself and could benefit from an appointed legal guardian.
- Trusts – The child may be able to benefit from a special needs trust, as this can provide long-term financial stability for the dependent and prevent benefits from being lost because of inheritance or child support issues. Grandparents and other family members should also be advised regarding the potential consequences that inheritance can have if not placed into a special needs trust.
- Living Arrangements – Children with special needs may not be able to live independently and therefore may need to live with a parent for an extended period of time. Some people with special needs may live in subsidized housing, group homes, assisted living, or supportive housing.
- Government Benefits – In the event that child support payments are continued once the child has reached the age of 18, it is important to recognize that this can affect the dependent’s eligibility for government-run programs, like Supplemental Security Income.
DIVORCE ATTORNEYS IN VIRGINIA
Parents who have children with special needs have many things to consider when getting a divorce. With the support of a knowledgeable attorney, understanding the scope of the child’s present and future needs can be recognized. Whether you are contemplating getting a divorce or are in the midst of a divorce process, consider obtaining the support of a compassionate and experienced attorney who can do all that is possible to help you protect your child and his or her future while helping you achieve a favorable outcome overall.
Issues related to getting a divorce, receiving child support, and custody when there is a child with special needs involved can be extremely complicated and emotional. This specialized area of law requires the support of an experienced attorney who understands how to navigate these complex cases. NOVA Legal Professionals are prepared to be the strongest possible advocates for your child. We will understand your child’s unique situation and special needs, help you create a plan and persuade the judge that your plan is in the best interests of your child. Read more about how we have helped our clients here.
If you want to speak with one of our attorneys to discuss your case, reach out to us at any of our offices in Manassas, Prince William County, Fairfax, Fairfax County, or Stafford/Fredericksburg, locations to schedule.