How Will My Divorce Affect My Child with Special Needs?

How Will My Divorce Affect My Child with Special Needs

Divorce in the United States today is common, and some studies suggest that parents of children with special needs may have even higher rates of divorce than other married couples. The personal, medical, and financial challenges that often accompany a child with special needs sometimes can cause a breakdown in the parents’ marriage.

If you are the parent of a special needs child, you must consider certain factors when settling your divorce case. The special needs planning attorneys at Rubin Law can assist you in identifying all important divorce-related issues concerning your child. We also can help you explore the options in a way that is in your child’s best interests.

Custody and Visitation

Custody and visitation issues may be complex for a child with special needs. You must decide which parent will be responsible for making critical decisions about your child’s educational and health care needs, or whether you and your soon-to-be-ex-spouse can cooperate to make these decisions in a way that is best for your child. You also must determine how to resolve these significant decisions if you and your ex-spouse cannot agree in the future.

When a child with special needs turns 18 the parenting agreement ends regardless of whether the child is capable of making their own decisions.  Therefore, it is generally a good idea for the parents to come to an agreement as soon as possible before the child turns 18 as to whether they will need a guardianship of some kind, and if both parents will jointly petition to be co-guardians or if one will support the other in their petition to become sole-guardian.

Child Support and Your Divorce

All parents must financially support their children, and if the child has special needs, that duty generally extends for the child’s lifetime. Even if a parent passes away during the child’s lifetime, a court can order that funds or other assets from the parent’s estate go toward the child’s support.

Receiving child support for a child with a disability can adversely affect or eliminate their receipt of need-based government benefits, such as SSI benefits. Child support unearned income for children when it comes to SSI benefits. When the child is a minor, 1/3 of the support payments are excluded from their unearned income. However, when the child reaches adulthood, the impact on SSI is even greater as no support payments are excluded from their unearned income, aside from the first $20 of unearned income received.

An Illinois special needs planning lawyer can advise you on how to structure a child support order to avoid this loss of benefits. For instance, a divorce decree can direct a non-custodial parent to pay child support into a first-party special needs trust for the child’s benefit, which can preserve the child’s SSI benefits. This type of special needs trust differs from the type of special needs trust you and your spouse may already have set up for your child during your marriage.

Health and Life Insurance

Parents also may need to maintain health insurance for their children with special needs after they become adults. In addition, due to an Illinois law permitting a child with special needs to stay on a parent’s health insurance even after age 26, a divorce decree can require one or both parents to maintain insurance for the child until the parent reaches retirement age and no longer has access to insurance through an employer.

Finally, a divorce decree may provide that one or both parents maintain a life insurance policy to benefit a child with special needs. Again, carefully structuring the payout of this policy is necessary to avoid the loss of need-based benefits such as SSI and Medicaid. For example, a parent can make a third-party special needs trust the beneficiary of their life insurance policy rather than the child.

Call Us Today for Advice and Guidance

Rubin Law prides itself on being the only Illinois law firm to dedicate itself exclusively to providing compassionate legal services for children and adults with special needs. We offer unique legal and future planning techniques designed to meet your family’s individual needs.

Call us today at 866-TO-RUBIN or send us an email at to learn more about the services that we can offer you and your family.