Consider the Future of Your Child with Special Needs As Part of Your Divorce

By Hillary D. Freeman

When parents to a special needs child decide to divorce, the couple must resolve certain issues regarding the future of their children. These include but are not limited to custody arrangements and educational needs. This article will address some factors to consider when going through the process.

What Should I Know When Divorcing with a Special Needs Child?

  • Residency: it is important to realize that school districts do not have an obligation to educate students who are not domiciled within the township. In these tough economic times, school districts are paying extra attention to this issue to ensure they are not spending money unnecessarily. If a district learns that a student is illegally attending the school district, it will take steps to remove the child from the district following a hearing before the Board of Education and may require the parents reimburse the district for the period in which the student was attending the district but was not eligible to receive free services from that district. This issue can easily be prevented if the parents sign a Consent Order, Separation Agreement and/or Judgment of Divorce that specifies where the child is domiciled as well as identify the school district the child will attend.
  • Special Needs Education Decisions: Both federal and state laws require that parental consent be obtained prior to making any changes to the child's special educational program. In New Jersey, consent may be obtained or revoked by the parent who has legal responsibility for educational decision making. N.J.A.C. 6A:14-1.3. This can become an issue when the parents disagree over their child's educational needs. Some districts may give more weight to the input of the custodial parent or communicate more with the parent who sides with the district - even if both parents have equal rights over their children. Since these are family law issues, the Judgment of Divorce should specify the rights each parent has in making educational decisions and should the rights be equal—the agreement should specify how disputes could be resolved.
  • Guardianship for Children with Disabilities: When finalizing the Judgment of Divorce and Custody arrangements, the divorcing couple must recognize that with limited exceptions, the rights of both parents terminate when their children become 18. However, some children with disabilities will still require guardians to advocate for their best interests after they become an adult. In those cases, parents will still be required to petition the Court to obtain guardianship over their special needs child.
  • Child Support: Some couples agree or are ordered to provide child support for the life of the special needs child to ensure the child is well cared for. However, such child support payments can reduce or eliminate the individual's right to government benefits such as Supplemental Security Income ("SSI") and/or Medicaid – which are both means-tested programs typically available after the child becomes 18. In addition to other minimal requirements, it is important to draft specific language in the agreement to direct any child support payments (post 18) to a self-settled Special Needs Trust. This will preserve the individual's eligibility for government benefits while also ensuring there is additional money available to supplement the services provided by the government.

Freeman Law Offices, LLC works closely with your Family Law Attorney to ensure that your child's needs are well protected. Contact us today by calling (609) 454-5609 if you are in need of assistance.

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