If you are a family law attorney, you’re well acquainted with the intricacies of a number of areas when it comes to the dissolution of a marriage – division of marital property, child custody and support, and alimony. However, when that divorce involves a child with special needs, or a spouse with severe disabilities, the picture becomes considerably more complicated. Should you engage the services of a special needs planning attorney? Here are five reasons why you might want to seriously consider bringing in an attorney with experience in the area of special needs planning to navigate your client and their particular circumstances to a successful outcome.
- The rising number of special needs cases. While we know that approximately half of all marriages end in divorce, anecdotal evidence suggests the unique stressors of caring for a child with special needs or a spouse with disabilities significantly increases that likelihood. Chances are you will work with more than one client who has a child with special needs and that client will have many questions on how to ensure their child’s needs are met now and in the future. Or, you might have a client who is disabled herself, or has been taking care of a severely disabled spouse, either of whom relies on public benefits for financial or medical assistance. Having a trusted special needs planning attorney to consult in these cases can be very reassuring for both you and your client while helping ensure the needs of the child or spouse with disabilities are adequately identified and addressed.
- The potential adverse impact of the settlement in meeting the needs of an individual with disabilities. Knowing government regulations governing Social Security Disability Income (SSDI) and Supplemental Security Income (SSI) eligibility as well as Medicare and Medicaid coverage is essential when structuring a divorce settlement, including child support, alimony and division of assets. If the long-term impact of the divorce or asset settlement on an individual’s continued eligibility for means-tested public benefits is not considered, critical benefits may be put at risk.
- Understanding the special needs trust. When you are considering the interests of an individual who is dependent upon public benefits in the divorce setting, it is important to consider many factors, especially when trying to balance protecting your client’s assets and income with providing for the long-term needs of the individual with disabilities. Protecting the interests of individuals with disabilities often requires detailed resource planning to ensure they are provided for throughout their life. Setting up a trust for a child or spouse with special needs requires a comprehensive assessment of the individual’s financial and medical needs, the public benefits at stake, and whether financial eligibility criteria must be considered. Getting this right can result in preserving public benefits eligibility, maximizing income flowing into a household and protecting assets for the long-term provision of the child or spouse.
- Anticipating the impact a child with special needs may have on your case. When a child with special needs is involved in a family court matter, cases are often taken out of the standard case management track to ensure the child’s needs are adequately addressed. The judge or marital master may appoint a Guardian ad Litem (GAL) to act as an advocate for the child’s best interests, and may instruct the parties to engage the services of an attorney who is knowledgeable about public benefits that have strict financial eligibility criteria.
- Avoiding costly errors and delays. Unfortunately, many family law attorneys don’t consider the unique impact of planning for a child or spouse with special needs until the case is well underway. Sometimes this is because the attorney doesn’t know the right questions to ask, or the needs of a child or spouse are not revealed at the outset. Before any resource division planning and income allocation begins, it’s critical to ask the right questions and identify whether public benefits eligibility is, or could be, a concern. If so, engaging a knowledgeable special needs planning attorney from the beginning will avoid potentially costly missteps.
Divorce is difficult. When the couple also must consider the special needs of a child or spouse, that difficulty increases significantly. As experienced special needs planning attorneys, we effectively leverage our knowledge of disability and public benefits law and estate planning to help family law attorneys secure the best possible quality of life and resource outcome for individuals with disabilities and their families.
