Judges know that your child will be living at home with you until he or she graduates from high school- at the absolute earliest. Most kids have needs are fairly limited. They live in the same house as you do (rent/mortgage), can eat the same foods that you do and their medical costs are typically low in their teenage years. However, if you are raising a child who has a significant impairment or disability of any kind then you know how your child’s needs differ from those of a child without those issues. A special diet, adaptive home environment, medical care, medications, physical or mental therapy sessions
Keep in mind that you and your spouse may differ significantly on what your child's life is going to look like in the future. I'm sure that you and your spouse have not seen eye to eye on every issue regarding the care and upbringing of your child. Even spouses in stable marriages cannot be expected to agree on everything associated with caring for a child with special needs. In your circumstances, you should expect that there will be some disagreement between you and your spouse in this regard.
For instance, your spouse may think that your child should live on their own without direct supervision. Your child may have their own opinions depending on the severity of the impairments that he or she is going through. If your child can be cared for in a facility that is paid for by Medicaid or private insurance then that can take a huge load off of your shoulders. On the other hand, you may need to house your child in your home or at another facility that does not accept insurance. Your spouse may want to place your child in a facility where insurance is accepted to reduce the level of spousal maintenance that he would have to pay.
Unfortunately, matters related to where your child is going to live and what the kind of care he receives is oftentimes much more complicated than this. As the parent who is primarily responsible for the care of your child, you need to work with your attorney to create arguments that are suited to win at trial if you want to have your child receive care in a facility that has certain out of pocket expenses. We have touched on a handful of important factors and your job is to cut through those factors and have the judge understand the most important ones that will help your child lead their best life possible. The least expensive option should not be the one that you have to settle for- unless it is what is in your child's best interests.
Can spousal maintenance be substituted as child support for an adult disabled child?
One of the ways that you can be awarded spousal maintenance in your Texas divorce is to be the custodian of a child who was born of your marriage and requires substantial care and personal supervision due to a physical or mental impairment that requires that you not work. This is a dire situation to require around the clock care and take you away from the marketplace where you could otherwise work. Judges in Texas are not bending over backward to award spousal maintenance in most cases but can do so when you need to care for an adult disabled child in this way.
In most situations, spousal maintenance is limited to an award of three years at the most. However, if there is no end date in sight for your child's disability, then you may be awarded spousal maintenance for an indefinite length of time. Every few years the judge may order you and your ex-spouse to appear back in court to perform a more up to date analysis of what sort of maintenance level, if any, is appropriate. Kids' health can improve over time and that is hopefully what is happening in your situation. The judge can file a motion to request that this happen, or you/your ex-spouse can do the same. You may be in a situation where you can go back to work now that your child's condition has improved. On the other hand, your child's condition may have deteriorated over the years and you now need to request a greater amount of spousal maintenance for the care of your child.
Contractual alimony as a potential source of income for your adult disabled child
As opposed to spousal maintenance, contractual alimony is an amount of monthly support that is paid to you by your ex-spouse which is agreed upon in settlement negotiations. Rather than going through a trial to have a judge determine how much spousal support is needed for you, you and your spouse could negotiate in mediation for an amount of support instead. You would need to be on the same page about what you and your child's future needs are, however, so there is more to it than simply wanting to avoid going to a trial.
Your child's benefits provided by the government in the form of Supplemental Security Income (SSI) or Medicaid are not subject to being taken away due to your receiving spousal maintenance or contractual alimony. From your spouse's perspective, he or she would need to be careful whether or not to agree to pay you alimony due to it not being something that a court can come back and modify. You have a contract with your ex-spouse and that is not something that the judge can alter later on.
What you may end up having included in a contract for alimony is a provision that your ex-spouse is able to bring you to an independent arbitrator in order to have a family court judge assess your current circumstances as well as those of your child in order to determine whether or not to modify or eliminate the payment of contractual alimony. If your child is expected to need care that lasts a lifetime, then this can be incredibly important. Additionally, your ex-spouse may lose a job or become disabled him or herself. In which case, their ability to pay your spousal maintenance may be significantly reduced or eliminated.
The payment of spousal maintenance or contractual alimony counts as income on a tax level. This means that if you receive this money directly from your ex-spouse you could likely be ineligible to receive benefits from the government, so long as your child is a minor. However, once your child reaches adulthood similar payments would not be treated this way.
Medical support for an adult disabled child in Texas
Final decrees of Divorce in Texas almost always contain provisions regarding the payment of medical support for minor children. However, the boilerplate language included in most final decrees of divorce probably is insufficient for a family in your circumstances. Since your child has special needs, what he or she requires and what it costs to provide that care has a special degree of language that needs to be inserted into the order.
By now, you are undoubtedly aware that your health insurance will do everything it can from having to be on the hook for paying for elements of your child’s medical care. As such, you should expect that the denial of coverage for certain kinds of treatment will be the norm for you and your family moving forward. You may also be in a position where your child benefits from treatment regimens that are outside of the mainstream and are best classified as being “alternative” in nature.
If you need care from providers that do not accept insurance or do not know how to begin the process of being covered you should pay attention to the next few paragraphs. What you have written in your final decree of divorce as far as medical support for your adult disabled child is incredibly important. You cannot simply trust that you and your spouse are on the same page as far as what care will be available to your child. Or that your spouse will make sure everything is taken care of in the future. This does not mean that your spouse is trying to trick or deceive you, but sometimes things fall between the cracks in a divorce case. Don’t let your child’s health insurance be one of those things.
What's more, you and your spouse may disagree on treatment plans for your child. Many parents have problems with their child seeing therapists or receiving any kind of psychological treatment. Even somewhat common conditions like Attention Deficit Disorder can create a great deal of disagreement between parents when it comes to chart the course for your child's future treatment. What to do with your child as far as medical treatment and their education are issues that are related, as well.
My point is that your child may be going through a process where his condition may not be life-threatening but can be extremely impactful on your child and your family as a unit. You should take into consideration what is covered by insurance and what is not at the time of your divorce. Meet with your child's doctors and see what they anticipate for the future needs of your child. Once you have collected this information it would make a whole lot of sense for you and your attorney to meet and develop a plan on how to negotiate for what your child needs as far as medical intervention is concerned.
The other thing that I wanted to note to you is that just because you have never run into problems with health insurance covering treatment for your child does not mean that it cannot happen in the future. I think the experience of most people dealing with chronic conditions (mental or physical) is that after a certain length of time health insurance coverage stops being as absolute as it once was.
I have had clients who have agreed to have their children undergo procedures with the assurance that those procedures would be covered by health insurance. These parents will see their bills paid by health insurance and think that the issue is behind them. However, insurance companies have a way of letting things linger- in a bad way.
A few months after the bill had been paid by insurance, that same company will come back and say that after undergoing an audit, the bill is no longer covered by their policy and is, therefore, going to be "unpaid." The hospital or doctor has come back and billed our client directly for care that had been previously paid for.
As far as your divorce is concerned, if your child is receiving medical treatment that may not be covered by insurance then you will need to make sure that these treatments will continue despite your divorce. You can work language to this effect into your final decree of divorce, or you can negotiate for the exclusive right to make decisions regarding medical care. This may be appropriate if you are the parent who already makes all the decisions or has taken a direct role in managing the day to daycare.
Questions about divorce with a special needs child? Contact the Law Office of Bryan Fagan
Divorces have many moving pieces. Divorces with special needs children have even more moving pieces. If you are going through a divorce and find yourself in need of advice, please consider contacting the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and provide direct feedback.
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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.