Across the country, we have seen an unfortunate increase in the number of divorces as married couples struggle to adjust to life in quarantine with their spouse and other changes stemming from the COVID-19 pandemic, such as job loss, financial strain, and illness.
While divorce is an emotionally draining and stressful process for anyone, it comes with an additional set of challenges for couples with special needs children.
According to the documentary film, “Autism Every Day”, divorce rates for families with children with autism are as high as eighty percent (80%) and for families of children with all disabilities that number has been touted as high as eighty-five to eighty-seven percent (85-87%). It is a common perception that dealing with a disability or special health care need in a family, whether of a child or a spouse, increases your likelihood of a marriage ending in divorce.
In the United States, we have become obsessed with the perfect life.[1] When our children or our spouse don’t live up to our ideal family image, it shatters our sense of accomplishment and well-being, contributing to the number of divorces. “I never thought I would be changing my thirty-year-old husband’s diaper,” comments a recent client. The financial impact on a family is devastating as well.
Pair that with the statistics regarding incidents of disability in the United States in the past decade, and as a special needs planner or a family law attorney, you realize the impact on your business. It is imperative to become informed about the impact divorce has on public benefits, financial planning, estate planning, and life planning of children and adults with disabilities.
For example:[2]
- In 2018–19, the number of students ages 3–21 who received special education services under the Individuals with Disabilities Education Act (IDEA) was 7.1 million, or 14 percent of all public school students.
- About 56 million people, nearly 1 in 5, according to a broad definition of disability, with more than half of them reporting the disability was severe, had a disability in the 2010 Census
- 8 percent of children under the age of 15 have disabilities according to the 2010 Census.
- The 2010 Census also shows that 41 percent of those aged 21 to 64 with any disability were employed as compared to 79 percent of their nondisabled peers. Along with this higher level of unemployment comes a higher level of poverty.
The cost of litigating a divorce under these circumstances will potentially be higher than the average divorce. The attorneys representing the parties need to have specialized knowledge relating to the care of children with disabilities, or, more often, will bring in experts to testify to those additional living expenses and other factors.
In order to determine how a divorce affects planning for families with disabled members, we should first look to the typical divorce.
There are four main elements addressed in any divorce: monetary support, custody and visitation of the children, insurance (life and medical), and equitable distribution of assets. The rest of this article will discuss the first two.
Monetary Support/Child Support
During a divorce involving children, child support is the main area of negotiation and focus. Typically, in Massachusetts, we have Child Support Guidelines[3] that discuss custodial and noncustodial parental income. Support orders are generally driven by these guidelines and it is unusual for a judgment to deviate from the guidelines.
However, the courts do recognize that children with special needs face higher expenses for their daily living, including increased medical expenses and care expenses. In addition, the likelihood is higher that the custodial parent’s earning ability will be impacted by the demands of caring for this child. As such, a child support order for a child with special needs is more likely to be higher than the child support guidelines recommend.
Lastly, a major difference in calculating child support orders for disabled versus non-disabled children is the age of legal emancipation. Our child support law discusses very specific criteria for child support orders to continue past age 18 and up to age 23.[4] A custodial parent may continue receiving child support for a child aged 18 to 21 if that child is “principally dependent” on said custodial parent. This could be a child who is in continuing education, unemployed or underemployed. The child support order could continue through ages 22 and 23 if the child is “principally dependent” on said custodial parent due to being enrolled in an undergraduate educational program.
If a child is receiving all the basic necessities of life through public benefits programs, are they principally dependent? Never mind the disparity that parents who are still married do not have a duty to support their children both disabled and nondisabled past the age of 18. Think of the slippery slope we go down when we are establishing a legal duty to support. In this time of fiscal crisis are we far away from an outcry from Social Security and Medicaid Offices that there is another stream of income available to support this disabled adult?
For a child with a disability, child support orders can have a negative impact on the eligibility for public benefits. The impact is different depending on whether the child has reached the age of 18. The two most important benefits we will review are Supplemental Security Income (SSI) and Medicaid.
SSI
For children under the age of 18, it is already very challenging to qualify for SSI. Although the child may not have an income of their own, any income received by the custodial parent will be “deemed” to be available to the child. If the custodial parent is impoverished, the child may receive an SSI payment.
However, if there is a child support order for the disabled child, that is countable income for determining an SSI payment. Social security will subtract and disregard the first one-third of the child support order and the remaining two-thirds of the support will be countable as income and reduce the SSI payment dollar for dollar.[5]
For a child over the age of 18, all of the child support is countable income to the child for the basis of establishing an SSI payment.[6] The child, not the custodial parent, is legally entitled to those payments and has enforcement authority through the courts. The exception to this rule would be if the payments were not court-ordered and were irregular.[7]
Social Security POMS do allow an irrevocable assignment of child support to a qualifying special needs trust.[8] This irrevocable assignment must be court-ordered.
In Massachusetts, we also sometimes use equity payments into a trust. These payments are not called child support, but rather “equity payments.” This authority has not been established by statute but rather by case law. In Feinberg v. Diamanti,[9] the court held that a disabled child may be eligible for such equity payments from his or her parents, where those parents had the ability to pay and the child’s extraordinary needs were not met.
Of course, these equity payments bring us back to the issue of emancipation. Under the child support statute, as previously mentioned, child support only continues after age 18 when the child is principally dependent on the custodial parent. But is this really the case if the adult disabled child is now eligible for an SSI payment, Medicaid, and in many instances, housing, personal care assistance and other supports from the state and federal governments? Continuing support beyond age 23 is rare because it poses many other problems for the disabled individual.
If parents are also guardians for the disabled individual after age 18, there is a unique conflict of interest. As guardians, they are charged with accessing assets and benefits for ward. Therefore, they could end up in a situation where they must sue themselves or each other for child support or equity payments. That would necessitate a third party guardian or counsel for the incapacitated person. Public interest would not be served by pitting co-guardian parents against one another. The costs associated are unnecessary and there aren’t enough professional guardians willing to step into these roles if parents cannot perform.
In our experience, families will typically handle the child support/emancipation question in either of two ways: they forgo formal support at age 18 and get their child enrolled in all the benefit programs that he or she qualifies for, while making an informal arrangement for supplemental support, or they forgo public benefits until age 22 when their child is out of school and they continue child support payments until then.
Rarely do families invoke the equity payments case or ask the court to order irrevocable assignments into trust due to the complexity of both issues and the lack of sophistication at the local social security office with either of these methods.
Unfortunately, from time to time, we do see families so mired in conflict that they cannot work these issues out amongst themselves and need to seek a remedy from the court. I have included a case study of one such conflict in these materials.
MEDICAID
Medicaid in Massachusetts, as with most states, offers multiple programs for children under the age of 18 and over the age of 18, all with different eligibility requirements. However, most have income and asset limitations of some sort. The insurance can also be supplemental if the child or adult child is covered under the parents’ primary health insurance. If the child or adult child is eligible for SSI, then they will automatically be eligible for Medicaid Standard. This means that if you have sufficiently dealt with the child support issue to become eligible for SSI, then it is of no consequence here.
However, if you have not applied for SSI or are not eligible for SSI, then you will need to apply for Medicaid separately. Most likely, the adult child will be eligible for Medicaid Standard. But the income guidelines would count a child support payment as income to determine eligibility.
If the adult child is not eligible for Medicaid Standard because his or her income is too high, then the adult child under the age of 65 could apply for a Medicaid program in Massachusetts known as Commonhealth. This is a program for individuals with a disability who do not qualify for MassHealth Standard. There will be a premium assessed based on the level of income the adult child receives. Other states will deal with this income issue in different ways.
CUSTODY
Custody becomes very complicated after age 18 for children with disabilities due to the need for guardianship. Neither guardian is required to house or physically care for the incapacitated person. The guardians only are required to obtain housing somewhere, but not necessarily with the guardians, and there is no requirement to pay for it from their own funds. So there is no longer the distinction between custodial and noncustodial parents.
If the parents are co-guardians, they must agree on the housing placement of the child. This can become mired if one parent relies on the child support income to maintain their home. Again, there is a conflict of interest issue for parents as guardians where the financial support is critical to one parent or the other.
In Massachusetts, the incapacitated person, or someone on their behalf, may invoke the right to separate counsel in a guardianship proceeding.[10] Although parents have a preference in Massachusetts, there is no guarantee. If they cannot get along and negotiate these day to day decisions for the incapacitated person, the court will have no choice but to replace them with a third party guardian.
I know that was a lot of information, but the truth is that even though divorce is strenuous for everyone, it’s even more complex and heavy for parents of children with special needs. For more information on the things special needs parents should consider before filing for divorce, check out this recent episode of my Parenting Impossible podcast here.
[1] Gallagher, G. & Konjoian, P., Shut Up About Your Perfect Kid (Shut Up Industries, Inc., 1st ed. 2007). [2] U.S. Census Bureau (2010). [3]Child Support Guidelines, Massachusetts Office of the Trial Court (January 2009). [4] Mass. Gen. L. ch. 208, §28 [5] SSA POMS § SI 00830.420. “POMS” is the Social Security Program Operations Manual System - the guidebook for social security employees processing social security claims. [6] Id. [7] SSA POMS § SI 00810.410 [8] SSA POMS § SI 01120.200 [9] Feinberg v. Diamante, 389 N.E. 2d 998 (Mass. 1997). [10] Mass. Gen. L. ch. 190B, §5-106