When it comes to a divorce involving your assets and involving your special needs child, there are really three conversations that we need to have. The first conversation deals with child custody and how your special needs child may impact that equation. The second issue that we need to solve is 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 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 almost every facet of your life are 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 your family's financial issues.
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 to finalize several 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 need to have a plan to tackle each of these issues simultaneously.
Please keep in mind that the alternative to you and your attorney has a plan To win on these issues is not to 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 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 your problem solves 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 to work through them correctly. As such, I would like us to discuss 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. Still, 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 nonspecial needs children. The love they have for this special needs child is equal to the parent's love for a non-special needs child. The lessons in discipline and love imparted by a parent on a special needs child are often the same that is 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 they are a part of the family and are not abnormal or not accepted due to their special needs. While some special needs children Can 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 to get through a day. It would help if you determined 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 easier on an emotional level for parents like yourself. As a parent, I can put a lot of pressure on myself regarding how I approach topics with my children and help my children succeed at whatever developmental level. 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 about 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 regarding 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 that 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, the week off schedule that allows custody to be shared would work better for you and your family? These are the types of specific considerations you need to give regarding child custody matters that I won't get into 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 your child's rights and duties will be divided. A rights and duties discussion about 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. For most kids, you are no longer their conservator after age 18, which 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 a note of that in your final decree of divorce. While the legal process had become 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.
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 how 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 debtor's 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 owns 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, mortgage, credit card debts, vehicles, personal assets, and other property types are all subject to division in the divorce. The interesting thing about talking about community estates' division in a divorce is that this subject is not isolated from child custody considerations. Rather, your special needs child's financial needs can directly impact how your community estate is divided. Depending on your child's needs and on your financial status, the effects can be profound, and I would like to close out today's blog post by discussing a few of those issues with you.
Considerations regarding the family home in your divorce
your largest financial asset is likely 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 may be 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 disrupts 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. Financial, emotional, and relational aspects of a home 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. 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. It would help if you worked 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 regarding your spouse’s liability on the mortgage moving forward.
Another consideration that I would give regarding how your community estate is divided is if your child's primary conservator requires more help from a financial perspective. Let's assume that you are named the primary conservator of your special needs child and are currently not working. You have devoted your life to caring for your child daily while your husband has gone into the workforce and earned a living to support you. Now that you all are moving towards a 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 require some degree of spousal support to make ends meet after the divorce.
It is often more practical for divorcing spouses to divide their community property estate in a way that allows for one spouse or the other two to 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 instead 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 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.
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The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding child custody, it's important to speak with one of our Houston, TX child custody lawyers right away to protect your rights.
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