Very often, the most contentious issues in a divorce between parents of a child with autism are financial ones. Each case is different. However, there are certain general principles to consider.
When there are two identified parents of a minor child, generally each parent has a financial obligation to contribute to the child’s support in a manner reasonably consistent with their economic abilities and resources. Many states have child support guidelines, which help establish what a parent’s base child support obligation may be. A court, however, may have the discretion to deviate from or adjust a child support guideline award. For example, if there are special circumstances, such as extra costs and expenses for a child with a developmental disability such as autism, such extra costs may potentially warrant either an increased child support award or additional contribution from both parents toward such special expenses, provided the parents have the ability to reasonably contribute additional funds.
By way of example, additional expenses which may relate to a child’s autism might include out-of-pocket costs of additional therapies, special seamless clothes (if, for example, the child has sensory integration dysfunction), special educational supplies, summer camps for children with special needs, etc. Respite and other autism-related expenses may also potentially constitute reasonable additional costs as well.
A child with autism may possibly have some educational costs paid by the School District under IDEA as part of an IEP. It is also possible that a health insurance plan may pay for some autism-related therapies and other costs as well. However, even after considering what a school district and insurance carrier may each provide or contribute, it is fairly common for parents of children with autism to still have additional and reasonable out-of-pocket costs. Therefore, if the child’s parents are separated or divorced, there may be a valid issue as to what if any additional financial contribution a non-custodial may pay to help contribute to or defray some of these expenses.
It is important for parents of a child with special needs to become familiar with the option and potential benefits of creating a Special Needs Trust (SNT). An SNT may help parents provide money and other resources (such as life insurance proceeds, inheritances, etc.) to the child later in life without possibly disqualifying the child from financial benefits under government assistance programs such as Social Security Income (SSI) Medicaid, etc. There are other types of relevant accounts as well, but for starters, it is appropriate for separating or divorcing parents to at least learn some basic information about how an SNT works, perhaps by consulting with an attorney who practices estate planning and has experience with SNTs.
It should also be noted that a child’s autism or other developmental disability may potentially be relevant to other financial issues in a divorce as well, such as spousal support (if recognized in the applicable jurisdiction) or division of marital assets and debts. For example, if one parent must be a full-time caretaker for the child due to the child’s disability and cannot work, this may be a consideration for a court with discretion to award alimony if the court finds that other criteria for alimony exist in the case. Similarly, if for example one parent is caring for the child, and the child is doing well in school in a special education program, a court may possibly consider allowing the child and the parental caretaker to live in the house for some specified period of time as opposed to selling the house during or following the divorce. The issue of whether the marital home should or should not be sold, and when, and at what price, is very often highly contested in a divorce, as the house is often the most valuable asset that the parties own.
