When it comes to divorce involving your assets and involving your special needs child there are really three conversations that we need to have. The first conversation deals in child custody and how your special needs child may impact that equation. The second issue that we need to problem solve through is that of community property division in how that functions in Texas. Finally, we need to discuss how these two subjects may interact with one another and what preparation you need to have in place in order to be Intentional and effective within your specific divorce.
Divorce is a unique sort of legal case not only from a family law perspective but from a civil law perspective in general. It is not very often that deeply intimate issues regarding your finances, your family and most every facet of your life is rolled into one and determined within one sort of legal process. A bankruptcy case involves your finances and property, and obviously your debts, but does not directly touch on anything having to do with your family or children. On the other end of things, a child custody case can deal with visitation in possession but does not necessarily need to delve into financial issues within your family.
A divorce does not function that way. Within the divorce case you are forced to sort out thorny issues regarding child custody, conservatorships, visitation, child support, property division, assets and debts. From a certain standpoint, you can look at this as a good thing. You do not need to go through multiple court cases in order to deal with in finalize a number of different areas in your life. Rather, a divorce will force you to come face to face with many issues that have likely been problems in your life for years. The trouble with the divorce is that you and your attorney we'll need to be able to have a plan in place to tackle each of these issues at the same time.
Please keep in mind that the alternative to you and your attorney having a plan To win on these issues is to not have a plan and allow your spouse to dictate the terms of your divorce. Even if you are accustomed to having your spouse call the shots within your marriage it is not necessarily a wise idea for you to do that in your divorce. Even if you and your spouse see eye to eye on most issues it is a mistake to allow him or her to determine the main talking points for your divorce.
Instead, I recommend that you and your attorney be extremely intentional about how you problem solve your way through two specific issues. Those issues are custody of your special needs child and division of your community estate. Each of those topics requires a certain baseline level of knowledge in order to work through them correctly. as such, I would like us to have a discussion about each of them before we complete the blog post today and discuss their interaction Within your case.
Child custody issues with special needs children
I'm not sure how you and your spouse handle issues together when it comes to your special needs child, but I'm willing to bet that many families reading his blog post would assure themselves and their families that they do not treat their special needs child any different than their non special needs children. The love they have for this special needs child is equal to the love that the parent has for a non-special needs child. The lessons in discipline and love imparted by a parent on a special needs child are often the exact same that are imparted on a non-special needs child.
Handling parenting issues this way serves two purposes. The first purpose is to help your special needs child feel like he or she is a part of the family and is not abnormal or not accepted due to their special needs. While some special needs children Are able to understand their limitations and live a life there is not completely dependent on outside involvement, some special needs children require almost constant involvement from their parents in order to get through a day. You need to determine how to approach this issue with your kids.
The other benefit but I can see from the perspective of handling issues regarding your special needs child just as you would, or any other child would be that it is easier on an emotional level for parents like yourself. I know that as a parent I can put a lot of pressure on myself in regard to how I approach topics with my children and how I help my children to succeed at whatever developmental level they are at. I can only imagine how difficult it might be to face pressure from yourself to help a special needs child succeed in the world it is not necessarily built for those people who have special needs.
It is OK in many regards to approach parenting your special needs child just like you would you are non-special needs children. However, there are a few child custody related matters in a divorce that I think bear mentioning in regard to special needs children. For one, you need to ensure that your child has their daily requirements cared for within your final decree of divorce. The final decree of divorce is the lengthy legal document which contains the orders and responsibilities handed down by a court to you and your spouse after the divorce. If your child has ongoing medical needs or requirements for particular types of care, then you all should take those into account during the custody phase of your divorce.
For example, if you and your spouse understand that your child does not do well with frequent travel to and from each other's homes then you all should account for this in your Visitation orders. Maybe a week on, week off schedule that allows custody to be shared would work better for you and your family? These are the types of specific considerations that you need to give in regard to child custody matters that I won't get into in detail today. However, you know what is best for your family and you should be intentional about ensuring those specific provisions are included in your final decree of divorce.
The other custody related matter regarding your special needs child that I wanted to mention is how are rights and duties associated with your child going to be divided. A rights and duties discussion in relation to a divorce basically comes down to a subject called conservatorship. You and your spouse are going to be conservators of your children Both now and after your divorce. Whereas for most kids you are no longer their conservator after age 18, that may not be true for your special needs child.
If your special needs child is going to require ongoing care and direct involvement, both physically and financially, after your child turns 18 then you should make note of that in your final decree of divorce. While the legal process had becoming a conservator over an adult requires court involvement beyond your divorce, you can note in your final decree of divorce that child support will be extended beyond the normal end of high school or age 18 limits that are in place for most children. You all should particularly account for any increased financial needs associated with raising your special needs child and take those into account within the final decree of divorce of divorce.
Community property division in a Texas divorce
The other subject we need to talk about in today's blog post is community property division. A divorce in Texas means determining which of your assets and debts are part of your community estate and then determining a way to divide those assets in the divorce. The presumption in Texas is that all property and debt accrued during the course of your marriage is community owned. This means that the debt or property is just as much yours as it is your spouse is. Keep in mind that this does not mean that the property is half yours and half your spouse is. This means that each of you own an asset or debt in its entire T and that after the divorce the property or our debt will likely need to be divided between the two of you in some way.
Your home, your mortgage, your credit card debts, your vehicles, personal assets and other types of property are all subject to division in the divorce. The interesting thing about talking on division of community Estates in a divorce is that this subject is not isolated from that of child custody considerations. Rather, the financial needs of your special needs child can have a direct impact on How your community estate is divided. Depending on the needs of your child and on your financial status the effects can be profound, and I would like to closeout today's blog post by discussing a few of those issues with you.
Considerations in regard to the family home in your divorce
it is likely that your largest financial asset is your family home. Whether you have a mortgage on the House or not you likely have some degree of equity in the home and, perhaps outside of retirement accounts, this equity represents a large chunk of your overall net worth. With that said, you and your spouse will need to figure out what to do with your family home in the divorce. A somewhat complicating factor in this conversation maybe that your special needs child requires special consideration in this regard.
For example, let's assume that your special needs child is fairly high functioning but has problems with disruptions to their daily routines. In other circumstances you and your spouse may want to sell the family home, split the equity and go your separate ways. However, if your special needs child has a home that is adapted to their needs and is otherwise apart of their coping mechanism with the divorce you all may want to remain in the house as long as possible.
Depending on how custody is split and which one of you is named the primary conservator of your special needs child, one parent will likely remain in the home in that case while the other lives outside of the home. In most divorces, I would not recommend remaining in a house only to provide stability and consistency for your children. There are financial, emotional and relational aspects to a home that make it a unique aspect to your Community property division. Generally, I think children are more capable of dealing with adversity and change than you may believe.
However, I do think special consideration needs to be given to your special needs child and if that home represents a port in the storm for your special needs child and cannot be duplicated elsewhere then you may need to remain in that house for the time being. This decision to remain in the house may involve a refinance of the mortgage, whereby cash can be taken out of the house to pay your spouse their share of the equity. You should work closely with your family law attorney on devising the best way to do this so that you and your spouse spend the least amount of money possible and tie up any loose ends from a legal perspective in regard to your spouse’s liability on the mortgage moving forward.
Another consideration that I would give in regard to how your community estate is divided is if the primary conservator of your child requires more help from a financial perspective. Let's assume that you are named the primary conservator of your special needs child and you are currently not working. You have devoted your life to caring for your child on a daily basis while your husband has gone into the workforce and earned a living to support you. Now that you all are moving towards divorce it has become apparent to you that you will either need to get a job in hire help to care for your child or will require some degree of spousal support in order to make ends meet after the divorce.
Many times, it is more practical for divorcing spouses to divide their community property estate in a way that allows for one spouse or the other two retain a disproportionate share. That means you could walk away with a greater than 50% share of your assets and perhaps fewer of the debts associated with your marriage. This way you could get a leg up financially as you begin to figure out how your post-divorce life will look. Or, spousal support could be offered by your spouse to you in lieu of a disproportionate division of your community estate.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about Texas family law and about the services that our law office can provide to you and your family as our clients.