When contemplating the need to file for divorce, it can seem like a daunting task. Just finding the right attorney for your case can be intimidating in and of itself. So, when adding additional stresses, such as a child with disabilities, a divorce can not only be overwhelming, but seemingly impossible.
At Ramos Law Group, PLLC, we are here to help, with a list of the top five mistakes you can make during a divorce when you have a disabled child.
1) Not making a finding of disability in the Final Decree of Divorce
It is so important to have the child’s treating physician or a medical professional make a determination of disability that can then be included in the Final Decree of Divorce. For example, say you have a child with Asperger’s and when the child turns 18, you want to continue child support based off his disability and continued medical care, but your ex-spouse states that your child is just anti-social and that there is really nothing wrong with him. What happens? You’re back in Court fighting for child support and having to prove your, now 18 year old, child is disabled and entitled to indefinite child support.
If the Court made a finding of your child’s disability when the Final Decree of Divorce was drafted, it may have prevented the need for future litigation.
2) Not considering indefinite child support
With the previous example in mind, let’s consider indefinite child support. The Texas Family Code allows for indefinite child support to be paid for an adult child over the age of eighteen that: 1) Requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support, 2) The disability exists, or the cause of the disability is known to exist, on or before the eighteenth birthday of the child.
Unfortunately, disability usually equals money. Whether it be in doctor’s bills, medication, or therapy, the costs of caring for a disabled child can far exceed your monthly child support payment, and those costs do not go away just because your child has reached the age of 18 when the general rule is that a parent stops receiving child support.
So, always consider indefinite child support. Even if the child progresses over time, it prevents future litigation down the road having the Court making a finding of your child’s disability and that you are entitled to indefinite child support for your child’s continued care.
3) Not limiting or eliminating income received by the child pursuant to the divorce
Another mistake many attorneys make is not considering income of a child pursuant to a divorce. Many disabled children qualify for supports and services through social security, Medicaid, etc. If qualified, the child cannot make an income and they can only have a very limited amount of funds available to them, or they lose their supports and services.
When dividing an estate pursuant to a divorce, let’s say mom is to pay dad 50% of her total 401K, but instead the parties agree to put the money into a bank account or savings account for the benefit of their child. Guess what? That qualifies as income, and the child may lose his or her benefits and Medicaid can request reimbursement for everything they paid on behalf of the child! Again, it is extremely important to make sure your attorney is knowledgeable and aware of this specific area of the law.
4) Not making decisions regarding Guardianship
In the Final Decree of Divorce, make sure there are provisions stating who will be the Guardian of the child when the child turns 18, who will pay for the Guardianship, and if agreed, who cannot be the Guardian of the child.
When your child turns 18, you may consider becoming their legal Guardian. There are many considerations, such as being able to speak to medical professionals on your child’s behalf, but that is for another blog and another day.
However, you don’t want to end up in wasteful litigation over the ability to become your child’s legal Guardian, in the event it is necessary. I’ve seen many parents waste thousands of dollars fighting their ex-spouse over whether Guardianship was really needed for their child. You can prevent this by making provisions as to guardianship for your child in the Final Decree of Divorce.
5) Not using an attorney who has knowledge and understanding of these special provisions
I think this last topic speaks for itself. Although many disabilities such as ADHD, Asperger’s and Autism are on the rise, there are still a lot of attorneys who are not aware of the special provisions that can be included in a Final Decree of Divorce when divorcing parents with a disabled child.
Ask your attorney if they have divorced parents with disabled children before; ask if they know anything about Social Security or Medicaid and how the divorce will impact your child if he or she is receiving those services. Most importantly, do your research, and find someone knowledgeable because handling these issues in your Final Decree of Divorce could save you big time down the road.