When parents of a special needs child divorce, there are unique issues and things to be aware of. A divorcing parent needs custody, support, and property division orders that are fair and workable going forward.
The Remington & Dixon PLLC team discusses divorce with a special needs child in North Carolina.
What Parents Should Know for Divorce with a Special Needs Child
The child custody order may take the child’s needs into account
A child custody order is based on the best interests of the child. When a child has special needs, their best interests should reflect their circumstances. A child may need a certain visitation schedule to accommodate medical appointments, school, therapy, and special programs. There may be considerations when it comes to transporting the child and their medical equipment that influence the duration of visitation and the frequency of parent exchanges.
Even if a child has special needs, the court may order shared legal custody and generous parenting time to each parent. Alternatively, if appropriate, the court may significantly limit a parent’s time with the child. It is important to show the court what the child’s needs are, how those needs are met, and the role each parent plays. The court presumes that it is in the best interests of the child to have a relationship with both parents, and it will fashion a child custody and visitation order that takes all relevant factors into account.
Child support may deviate from the state formula
In North Carolina, child support is determined by a formula. The court considers the income of both parents, the number of children, and the custody arrangement. However, where there is a special needs child, the amount determined by the formula may be inadequate. The North Carolina child support formula anticipates this scenario.
The court may deviate from the guidelines amount, if the application of the guidelines produces an inequitable amount. The parties can agree to deviate from the guidelines, or the court may order it if a parent requests it. The court must state the presumptive amount, its findings as to the needs of the child, and how the court determined the amount awarded. A parent seeking deviation must present clear evidence and information about why a deviation is necessary and appropriate.
In addition to being addressed as a deviation from the child support formula, special educational needs may be addressed as extraordinary educational expenses. Educational expenses may include unique programming needs for the child or transportation expenses such as a custom vehicle or special bussing.
Extraordinary medical expenses can be distributed
The child support formula usually includes $250 for uninsured medical expenses annually. This is so that the parents don’t have to exchange receipts frequently for small amounts. The court may apportion additional amounts between the parents as it deems appropriate.
The court may order a parent to get additional health insurance for a child if it is available at a reasonable cost. Both private and public health care coverage may be considered. The guidelines say that health insurance is considered reasonable if it doesn’t exceed 5% of the parent’s gross income.
Child support ends at 18 or 20 if still in school
In North Carolina, child support ends when a child turns 18. If the child is still regularly attending school, it may continue until age 20. This is a common scenario for a special needs child. In most cases, child support doesn’t extend past the age of 20, but parents can agree on post-majority support.
Alimony may be modified
The special needs of a child may impact whether a parent can work. If a parent can’t work, this may factor into child support or alimony awards. There is no specific formula for calculating alimony in North Carolina. Alimony is appropriate if a dependent spouse can’t meet their reasonable needs and the other parent can pay support. Marital misconduct may be a factor in an alimony determination.
Alimony may be modified if circumstances change. When a parent makes a showing of changed circumstances for either party or anyone involved, it may be appropriate to modify alimony. A parent receiving support should know that remarriage or cohabitation prompts termination of alimony.
SSI income and estate planning can help
A special needs child may qualify for Supplemental Security Income. SSI doesn’t count as parental income for a child support calculation, so the receiving parent will not receive less in child support because a child receives SSI. It may be beneficial to place assets in a special needs trust so that a child doesn’t exceed the income and resources limitations to receive Medicaid and SSI. Estate planning and financial management should be addressed to take advantage of resources that may benefit the child now and in the future.
Family Lawyer for Divorce Involving a Special Needs Child
If you are involved in or considering a divorce, we invite you to meet with the legal team at Remington & Dixon. We assist parents with divorce involving special needs children. We understand the law and represent you as you seek justice and court orders that are best for you and your children. Contact us today for a consultation, so we can help your case.
Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.