The presence of a special-needs child in a divorce presents special issues that require you to view the case’s fact pattern differently than you would with other divorces.
By Michelle Smith, Certified Divorce Financial Analyst
It’s a familiar beginning. Your phone rings or you receive an email from a prospective client requesting a consultation. You and your office likely have the “First Consult Ritual” down to a science. While all divorces are different, all divorces are also the same – until the prospective client announces there is a special-needs child involved.
It’s common knowledge that the divorce rate in our country hovers in the 50+% area. When there is a special-needs child involved, studies have shown the divorce rate can climb to between 75-90%, depending on the special needs of the child.
The presence of a child with special needs in a divorce presents special issues that require you to drop your pen and view and listen to the case’s fact pattern differently than any other divorce. This is a special-needs divorce and requires specialized information, specialized understanding, outside experts, and a completely different discovery process. Not obtaining the information you need (that you may not even know that you need yet) can have disastrous consequences for the child, and his or her family.
Special-Needs Child: Questions You Need to Ask
How do this child’s needs affect the custodial and co-parenting arrangement being considered? (Standard parenting plans are grossly inadequate.) What is the appropriate amount of child support to be paid? How does one address the issue of support continuing beyond emancipation if the child will never become self-supporting? Is additional life insurance required? If so, how much? For what duration? How do you determine if there really are special needs when one parent claims there are, and the other parent claims the child is ‘fine’?
You need to conduct the first interview – and frankly any other fact-finding – differently than you would with other clients. You don’t need to become an expert in the special needs themselves, but you do need to become an expert in asking the right questions.
The first questions to ask about a special-needs child include:
- Is there an official diagnosis?
- Who made the diagnosis?
- Do you and your spouse agree on the diagnosis?
- Does the child have an IEP?
- Has any testing been done? By who?
- Is the condition ‘curable’ or treatable? Is it terminal?
- Is there a medical condition attached to the developmental issue?
- Are there any special financial needs?
- Are these special and additional expenses reimbursed by the state, private insurance, or the board of education?
- Are they ongoing, recurring, non-recurring?
- Are there any expenses not present now that will be in the future?
- What is the child’s daily schedule?
- Does the child have issues with transitioning to often between one environment to another?
- Are there dietary special needs?
- Are there medications?
- Is there any special training or extraordinary time commitment one parent needs to have vs. another parent?
- How does the child with special needs affect the child(ren) of the marriage without the special needs?
Are there any special financial resources needed for the other non-special needs children due to the special needs child requiring so much attention?
Just like real estate is about location, location, location, a special needs divorce is about questions, questions, questions.
Documents You Will Need
The documents you will need to obtain can vary, but in general, you will want to ask for the following:
- The most recent IEP
- Recent and relevant school reports from any teachers or professionals working with the child
- Recent reports from any therapists
- Any reports issued by neuropsychologists, any clinical/developmental pediatrician reports
This article is simply a starting point for family law attorneys, mediators, financial, or any other professionals involved in a divorce with a special-needs child to contemplate as they begin the complicated journey of addressing all the special issues this kind of divorce presents.
 When there is disagreement between the parents, a custody evaluation may be necessary to adequately assess home environmental factors as well as ascertaining which parent is better educated and trained in the child’s care and needs. Often, it becomes clear that one party has superior experience and knowledge regarding the child’s special needs.
 In the United States an Individualized Education Program (IEP) is mandated by the Individuals with Disabilities Education Act (IDEA). An IEP defines the individualized objectives of a child who has been found with a disability, as defined by federal regulations.
 Therapists in the special needs sense can include occupational therapists, physical therapists, speech and language pathologists, as well as mental-health professionals.
Michelle Smith is a Certified Financial Planner (CFP) and a Certified Divorce Financial Analyst (CDFA). She is Founder and CEO of divorce financial analysis firm Smith Financial Strategies, LLC based in NYC which specializes in high net worth cases. She is a divorce mediator, a financial expert, collaborative neutral and also the mother of a 13-year-old son with Down syndrome. She created the Special Financial Needs© template for use in divorce cases and is a co-founder of the inclusive education NYC school called The IDEAL School and IDEAL Academy of Manhattan.