Spousal maintenance in a divorce with a disabled child

If you and your spouse have been married for at least ten years prior to your divorce then you are eligible to receive spousal maintenance after your divorce. Sometimes called “alimony” or “spousal support”, spousal maintenance is money that you receive from your ex-spouse after your divorce in order to help you meet your minimum, basic needs. This does not mean that you will return to the lifestyle that you have been accustomed to or anything like that. It simply means that you will use this money to help you pay your bills and put food on the table in most circumstances.

A judge would consider your circumstances, length of marriage and your ability to provide for your own care without the assistance of maintenance. A comparison would be done of your income potential vs. that of your spouse as well as any responsibilities that you have in caring for your disabled child. With this in mind you will need to track your monthly living expenses to provide to the judge so that he or she can determine whether or not you are able to meet those needs consistently.

When negotiating for spousal maintenance what factors should you consider?

When it comes to a child with a disability or at least special health care needs you need to be especially cognizant of factors that will impact your life like this following:

-How will you, as a single parent, manage your child’s day to day health care needs? If you have been working full time as a married person you will need to balance your greater than ever need for income as a single person with your duty and responsibility to care for your child on a daily basis.

Consider a situation like the following that happens with regularity when it comes to being the parent of a disabled child. Since your child has been born you have likely stayed home and not only taken care of your child but also your family home. Your spouse is the income earner who has an education and job history that surpasses your own. You have always been fine with this because your needs have always been met, but more importantly the needs of your child have always been met. This all changed when your spouse filed for divorce recently. What are you to do now?

Your need to care for your child is the first concern that you likely have. Given your lack of a work history or education you likely are not able to earn anything close to what you and your child would need to survive after a divorce. This needs to be considered when determining a level of spousal maintenance. There are limitations in the family code to being able to receive spousal maintenance for more than three years. However, your past performance as a home-maker and parent in addition to your future commitment to your child as a caretaker should factor into your decision making on how aggressive to negotiate in the area of spousal maintenance.

What sort of documents do you need to have handy prior to coming up with final orders?

You should have handy your child’s care records from physicians as well as the log you keep that details how your child responded to particular treatment or questions that you have for your child’s doctors. These pieces of information will be able to help your attorney assist you in negotiating the different aspects of your divorce.

It is typical for parents going through a divorce to complete a run down of their monthly income and expenses so that the other party can review them with a mediator. You will do these things as well but will be responsible for including a run-down of your child’s monthly medical expenses as well. It would be impossible to get an accurate representation of what it costs to run your household without these costs built into the equation as well.

Finally, you should work to provide a mediator or judge with an estimate of the amount of time each week that you spend caring for your child versus what your spouse does. Even in the event that your spouse is not attempt to win primary conservatorship of your child you can still use this information as an indication that you are unable to work a full time job if you are also asking for spousal maintenance to be paid to you.

Legal tools that can assist you with caring for your child’s financial needs after a divorce

Setting up a special needs trust is a smart move for you to make in conjunction with your divorce. You can set it up so that child support payments flow directly into this trust in order to avoid having that support count as income for your child. You can set up the trust to allow for you to remove the money for your child’s needs as often as you need to.

Secondly, you and your spouse should consider a provision to be included in your divorce decree that orders each of you to take out life insurance policies naming the other spouse as the beneficiary. This allows you to be sure that, if one of you were to pass away, that the other spouse would be able to care for your child. The proceeds of that life insurance policy could be invested and hopefully generate a similar level of income over the course of an extended period of time.

How to help your disabled child transition into their post-divorce life

Divorce brings with it some inevitable changes and these are often times exacerbated when your child is disabled. Their symptoms may become worse during times of stress and worry, for instance. If your child has behavioral problems then those may flare up when he or she has to leave the house to go see their other parent. Many children have behavioral issues in the immediate time period after a divorce so you should not feel alone in this regard.

However, in an effort to keep your child’s needs foremost in your mind I will recommend you consider the following:

Your child should be kept in a consistent and stable routine as much as possible. Obviously it is not going to be easy to do this but your child will benefit a great deal if you can do so. Simple things like bedtimes, mealtimes, chores, play-time, etc. can be repeated with regularity if you and your spouse work to be on the same page.

If your child attends therapy sessions you may want to increase the frequency of those sessions for a short period of time after the divorce. Your child may feel better talking to someone who is not their parent about what is going on with them emotionally and otherwise.

Finally, I recommend keeping your comments about your ex-spouse away from your child and not exposing him or her to them. First of all, this is likely a court order that can carry stiff penalties if violated. A second benefit I would point out is that you want your ex-spouse to have a relationship with your child even if you are not all that happy with him or her at the moment. The reason being is that having the total responsibility of caring for your disabled child is not a burden that you want to bear voluntarily. By being respectful of your ex-spouse in front of your child you are more likely to present a positive image of him or her and make it seem more attractive for your child to have a relationship. This helps you and your child in the long run.

Questions on divorced with disabled children? Contact the Law Office of Bryan Fagan

If you have any questions about how to proceed with a divorce when you have a disabled child please contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. It would be our honor to sit with you and plan a method to help you and your child during this difficult time.

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