NAVIGATING A DIVORCE WITH A CHILD WITH SPECIAL NEEDS – A CLIENT’S PERSPECTIVE
By Joleena Louis and Thierry Valat De Córdova, General Counsel of the US Autism Association
Divorce is almost always hard. Divorce with a child with special needs is so much harder it can feel like a whole a different animal – almost impossible to get through without hurting your child. If divorce has become necessary for you, you need to get through it in the best possible way, not just for you but also for your child. We have put together a few tools here to help you get started as you think through this difficult process.
If Divorce is Necessary for You; It Is Necessary
The first thing you have to think about is whether you truly need a divorce. If you have children with special needs, you may be used to putting their needs above all else, but this is the time to repeat to yourself the safety advice we get in all airplanes: put your mask on before you try to put it on anyone else. In other words, you cannot help anyone or make anyone else happy if you are miserable. Eventually, your misery will catch up with, and affect, everyone else. And, as for economics, while making a living is important, the reality is never as bad as our fears. The question for you is simpler: is this marriage where you want your life to be; are the problems in your couple of a temporary nature, something you can (and both want to) work through or is it time to move on? If you no longer work as a couple and will not be able to get through this, you need to get a divorce – and in the best possible way for the sake of your child.
Figure Out What Divorce Can and Cannot Do For You
Once you decide you need to divorce, the next step is: what do you want from it?
To understand what you want, you need to understand what divorce is. Divorce is a legal process designed to give you and your spouse a fresh start. At its core, the purpose of this process is to divide assets and determine what parenting arrangement is best for the children. The goal is not to be equal, but to be equitable. That means things won’t necessarily be 50/50 but should end up divided in a way that is fair.
Much like every other legal process designed for a fresh start (e.g., bankruptcy, etc.), many people approach divorce shackled by the weight of past memories to a life that no longer exists and too many habits that no longer serve them. On the other side, it can seem that the future is full of frightening unknowns. But divorce will not preserve or restore your past and will not protect you against all of these unknowns. Divorce is only there to make sure two parties separate without any major issues.
From that perspective, you will achieve the most success by learning as much as possible what divorce looks like and what it can and cannot do for you. The fastest way to learn is to hire an attorney you can trust -- one who will tell you the truth, so you can make well-informed decisions. There are many people who will explain to you all of the wonderful things you could possibly get if you had a million dollars to pay for their services for years. There may even be attorneys out there whose dream is to use you to set a legal precedent. But if this is not your dream or your goal and you need to find an attorney who understands and cares about you. Your goal should be to get divorced as quickly as possible with the best possible outcome for you and your children.
For many people, divorce can destroy what few assets they have. Often, people let their anger towards the situation lead them to make poor financial decisions. Often, that can mean ending up with legal fees far greater than the value of the assets they were fighting over.
This does not have to be the case if you view divorce as a transaction and, as much as humanly possible, keep emotions out of it as much as possible. This can be extremely difficult if you have children with special needs you are deeply concerned about. The right attorney will keep you on track and guide you to decisions that protect your assets and financial security for you and your children as much as possible.
Some helpful things to consider:
Do you have a prenuptial agreement?
How is child support determined?
Where is your child now? Is this a good arrangement for them in the interim?
How long with the process last?
Is the other parent demonstrably dangerous for the children? If so, what is the best way to protect the children while ensuring that they still see both parents while the case is going on.
Determine Your Priorities
The best divorce advice we can give is to know your priorities and keep your eyes in the prize. It is often very helpful to list the things that are most important to you. For children with special needs, the list can be long. When it comes to parental access and a parenting plan, often the first question is “is your child in a good position now” (i.e. are you trying to preserve the status quo) or “does something need to change” (i.e. is there something your child needs)? What are the best options for your child, given your financial situation, but regardless of the divorce?
For a child with special needs, consider the following:
What are your children's emotional needs? Does your child need consistency or change?
What are your child’s daily needs and routines? Which ones work and do not work? How can you maintain them, both through the process and after?
Where does the child feel more secure /happier? If your child would feel happier staying with the other parent, can you find ways to keep a relationship with your child without disrupting that routine? How well would your child handle change if you move? If that would be an issue, what level of support would you need to make sure they stay in the home they grew up in?
Does your child need counseling? Is your child getting counseling now? Is it working? What will change in the future?
Do you need a certain type of health insurance / a certain type of coverage? Is that something you
Is your child going to the right school? Is your child happy there? If you do not know yet, how and when will you know? How will you make sure this works in the future?
Think about these questions and others in your life and think of ways you can keep what is best for your child while also allowing your child to maintain a quality relationship with both parents.
Talk to your attorney about what is possible and what is not. Have a list of non-negotiables and consider being flexible on the rest. Does that mean you don’t fight? Of course not. You need to defend your rights. But you fight where it matters and where you can win. For example, you may need to fight because your partner is a danger to you or your child or you know is hiding assets or otherwise lying to the court. You may need protective orders, you may need restraining orders, you may need subpoenas – but you need them, only if you need them. Keep in mind that fighting doesn’t mean lying and if you lie to the court, instead of resolving problems, at best you are buying yourself a whole new world of problems you cannot even imagine and at worst, you have already lost your case as you will lose credibility with the courts.
Draw a Map and Start your Journey
Once you understand where you want to go, write it down in some details and go over it with your attorney. They should be able to tell you what will be difficult to get, what is possible, and what is likely. Also, your attorney should be able to work with you to figure out the best path to get to where you want to go in the proceedings. The two of you should be able to come up with a roadmap for your divorce that, if you have picked the right attorney, should be reasonable. Most likely, it will include a range of options and back up plans. In other words, there are outcomes you’ll be fine with, some you’ll be happy with, and some things you will absolutely need.
You will notice that we are suggesting drawing your map without any discussion with the other side, without filing any motion, etc. Once you have your roadmap in place, you can discuss a strategy with your attorney and start the negotiation process, but we do not suggest doing so before. That is because this process requires looking at your life honestly and can be very hard to do and accounting for the wishes of someone else can make it too hard or confusing at first. In the beginning, it may be hard to communicate with your former partner, anything you say will go through their lawyers and may be reinterpreted, your motives may be questioned, they may not have the same process you have and ask for many different things, etc., etc. Therefore, if you try to figure out what you want in the middle of a negotiation, your child’s needs will get lost in the fight or you may get hung up on things that are not a priority for you. Also, you may not know at first what your former partner wants. But you should be able to figure out what you want. Once you know where to go, it is much easier to get there. You can start proposing some or all of this to your former partner and see what their reaction is to all of this. Of course, your map can change throughout the process as you refine it but, as long as you keep the principles above in mind, your map will change because you understand better what your child truly needs are and not because you are compromising.
It is important to understand what an attorney can and cannot do for you. Your attorney can tell you what the lay of the land is (i.e. what a court is likely or unlikely to do), what you are entitled to, what you can ask for and what you will likely never get, but your attorney cannot decide your new life for you: that is your job. As a client, the ultimate substantive decisions are your decisions. If you want to spend the next five to ten years in litigation; there will be an attorney available to take your money, even if that is not the course they would have taken personally.
Another thing your attorney cannot do is understand your life and your child, particularly if your child has special needs. If all children are unique, special needs children are in a separate category. Your attorney may or may not have handled cases with special needs children – and it helps if they have – but, even if they did, it is unlikely they would have encountered the exact same situation. What they need is an open mind and the ability to listen. What you need is the courage to tell your story honestly. You need to take the time to explain to your attorney what is important to you, without overstating their importance. Many things that would be fair and normal with another child become “make or break” items. Is sleeping in two different houses too much for your child? There are plenty of arrangements that can be worked out where each parent sees the child daily but the child sleeps in one place. Your attorney cannot find a solution if your attorney doesn’t understand your problem the way you do. Look at this relationship as a partnership and don’t be afraid to describe your child the way you see; not the way you wished he or she were.
Finally, we described the divorce proceeding above like a negotiation. That is because it is one. Many divorces start with a lawsuit but end in a settlement. And, with a special needs child, that is what you want. You do not want someone else to decide the fate of your child, which is what would happen if the process runs its course.
When you start or are in the middle of a divorce, it can seem like it will never end. But it does. Once the case is over, your attorney will be gone, and you will live with your settlement agreement – for at least as long as your child is a dependent and likely through their college years. This realization should make you want to do a few things that, in the heat of the battle and eager to move beyond this, people can forget:
Read your settlement agreement (or court order). And read it well. Your attorney can write it but you will have to live with it. It is your responsibility to make sure they wrote down what you meant. And for you to understand what they wrote. This is the time for you to ask questions: they may not be here later to explain it to you.
Think about contingencies. Will you be able to live with your agreement throughout the years? If not, what flexibility to you need built in? This is a very different situation if your child is 2 or if it is 17. If your child’s situation change, is this addressed well or will it cost you a fortune in attorney’s fees again to resolve it. You do not need to address every contingency, you just need a mechanism in place to resolve them.
Of course, you can always change your agreement later, but that may require you to be back in court and it costs money and may take the time you might not have in certain cases. Think about what would happen if in the future you do not agree with your former spouse. If you and your former spouse agree, most often than not, you will not need the courts. But even if you don’t, the agreement should have fallback positions for most situations, so that if you do not agree, you both know what to do.
