Figuring out how to divide and share rights, responsibilities and time with the kids is hard for divorcing parents of all children – with and without disabilities — because there are so many things to consider. Parents eventually land on how they will handle schedules, residences, health care, and support, but going through the process can generate a lot of reflection on childhood – and parenthood – over issues that didn’t seem to exist, back when the couple thought they would still be married when the kids were grown. Some parents make hopeful, or fearful, guesses about what the “new normal” will mean for parent-child relationships while others are thinking about how to pay for daycare or a teen’s car insurance. Still others wonder how dividing up carpools, dental visits, holidays and in-the-moment phone calls with the school nurse will work. The concept of “dividing up the kids” finally dissolves again when the child turns 18 or graduates from high school (Texas child support and possession orders usually end on whichever of these events happens later). This timing coincides with the legal transfer of rights and responsibilities from all parents to their “new” adult children when they reach the age of majority.
When a child has a disability, building a specialized mini-plan on top of the standard considerations requires parents and family attorneys to take additional resources and areas of law into account, and to consider a timeline for support and other orders that extends beyond the typical cutoff at age 18.
If you can only plan for one addition, tackle special education. Special education stimulates thinking on multiple fronts: 1) Parent membership on the child’s IEP team provides access to significant protections and opportunities, and complex educational decision-making; 2) Special education services can extend public school eligibility to age 22 (thus delaying graduation) – this has implications for extended support obligations; 3) The transfer of rights at age 18 happens for most students before they graduate – without planning, this can change a parent’s impact on the student’s educational and personal decisions (including decisions about spending time with parents, regardless of valid, continuing, support orders); and 4) Schools are required to connect families with other resources and services that can support a child’s long term financial independence.
If you can include additional perspectives, consider how employment influences access to health insurance, income and asset caps that serve as gate-keeping roles around access to public benefits, and legal and financial tools to protect an individual’s right to work. These tools can include Special Needs Trusts, ABLE accounts, Supported Decision-Making, Powers of Attorney and other alternatives to Guardianship, Guardianship and estate planning.
Finally, for long term blueprint to use as a guidepost to navigate unforeseen future issues, consider adding mediated strategic planning processes that can help divorcing couples develop a joint statement of specific, disability-related, common goals and interests that they can refer back to.
Raising an adult with a disability to reach their potential requires parents’ combined energy and brainpower for longer than the time non-disabled siblings need, and beyond what the Family Code assumes.
Parents who engage in a Collaborative Divorce process that stretches to encompass the crossovers into other areas of the law increase their chances of emerging, post-divorce, with the intact working relationships that will support their child with special needs to develop on a path and timetable that may look very different from that of their non-disabled siblings.
You are not alone! This impacts more families than you think.
While rumored higher divorce rates among couples who have a child with special needs is debated in the research, the data showing how many kids in the U.S. present with identified disabilities is much clearer. Around 14% of all public-school students receive special education services – these are children whose disability-related needs qualify for the individualized supports and services documented in an Individual Education Program (IEP). The numbers increase when we contemplate students with disabilities who only need accommodations (usually appearing in a 504 Plan) and those who do not need specialized supports or accommodations at all.
How to build disability considerations into your Collaborative Divorce
- Request a comprehensive, person-centered, transition plan from your school’s Special Education team
- Consult with legal and financial professionals with expertise in Special Education/504, Wills and Trusts, Guardianship and Alternatives, SSI/Medicaid and other State and Federal benefits programs, ABLE accounts and other “trust-like” mechanisms to support a still-developing adult decision-maker.
- Access these free resources and share your research with the team: NavigateLifeTexas and Texas Parent to Parent
