Divorcing When You Have Special Needs Children

When divorce involves children, it is already complex. But for families raising a child with special needs, the divorce process introduces an entirely different level of complexity. From custody arrangements and support decisions, to schooling and healthcare — all of these considerations become more significant when a child has unique needs.

Traditional litigation often isn’t equipped to handle that level of complexity with the care it deserves. In these cases, divorce mediation can be particularly valuable. With a flexible, family-centered approach, mediation offers parents the ability to craft customized solutions that truly support their child’s well-being.

In this conversation, mediator and former special education attorney Josh Kershenbaum shares his insight with NHDM owner Karen Salib on why mediation is especially valuable for families with children who have disabilities, and how the right divorce process can make all the difference in ensuring a stable, ideal arrangement for the child or children.

Transcript:

Karen Salib (0:00) The Unique Challenges and Considerations of Divorce That Involves Children with Special Needs

So, Josh, a question that we get asked all the time, and we’ve got people going through the divorce process, which is challenging enough as it is. You have people going through the divorce process that have children, which adds a different dynamic and a whole slew of additional concerns that can even be further complicated by families where they have children with special needs. So you have some unique insights and some experience here. What is your experience in this area?

Josh Kershenbaum (0:30) Why Families with Special Needs Require a More Thoughtful Divorce Process

Yeah, well, it’s a great question. I think, first of all, a lot of people don’t automatically realize that when they have a child with a disability and they’re going through divorce at the same time, that those two things have a lot to do with each other, meaning that the child’s disabilities can have an impact or can be relevant to every single aspect of the divorce process. And so while disabilities and divorce are not necessarily two things that people associate with each other, for parents who are going through divorce while they are also parenting a child with disabilities, they’re experiencing both of those challenges at the same time. I often think of it as standing in two labyrinths at the same time. There’s the labyrinth of divorce, and there’s the labyrinth of being a parent of a child with a disability.

And imagine you’re in both of those at once. And the reality is that loads of people go through divorce, and many, many families have a child with disabilities, and some folks are doing both of those at the same time. So what we understand, what we appreciate, is that those two things have a lot to do with each other. First, it’s important to understand that having a child with a disability does not necessarily make it more likely that you’re going to get divorced. I think that’s a myth.

That’s a very, very pervasive myth that a lot of people say, but there’s no evidence to support that that’s true. So, just having a child with a disability doesn’t make it more likely that you’re going to get divorced. But when you are getting divorced and you have a child with special needs, you’re in a very special situation. You’re in a situation where you really need a divorce process that can help you navigate two labyrinths at the same time. And that’s different from when you’re going through divorce without children at all or when your children have more typical needs.

And one of the ways it’s different is that, as bad as the litigation process is for everybody, it’s especially terrible when your family situation is unique, when your family situation is different from most other families, because the court process is. It’s poorly set up even for people who are in typical situations. But when your situation has a lot of unique facets or differences to it, you’re just not able to put decisions in the hands of a judge that could really appreciate the unique circumstances of your family. So what you really find yourself needing is a process that you have a lot of control over. You want to be in a process where you, as the parents, can make creative, individualized decisions about what should happen with your assets, what should happen with the co-parenting schedule, what should happen with support.

You need to have more creativity and flexibility. And you can only do that in a process like mediation, or where the participants are in charge of everything. So mediation is a, you know, if you were trying to design a divorce process for parents who have kids with disabilities, it would look a lot like mediation. You would want a part, a process where the parties were in control, where the participants got to decide the outcome. And that was very efficient.

As every parent who has a child with a disability knows, life is complicated enough and expensive enough. You have no room for a wasteful, inefficient process for restructuring your family, because that’s what you’re doing when you’re getting divorced, you’re restructuring your family. It’s not an end to your family, but particularly when you have children, you’re changing it. And if you have a child where your whole family, your whole structure has revolved around, has been created around meeting the needs, the unique needs of this child, having to restructure, that takes a lot of care and thought. You need a process that supports that, and you also need professionals who can support that.

Josh Kershenbaum (4:44) Why the Right Professional Makes All the Difference in Special Needs Divorce Cases

So, having not just a mediator, but a mediator who appreciates the challenges that you’re facing and who has an appreciation for how your child’s disabilities affect the divorce process is extremely important. For example, everybody who has children and is going through a divorce has to figure out a custody schedule. And it’s challenging enough in typical situations for children to go back and forth between two homes. But for certain children who have certain disabilities, that’s nearly impossible. Children who, suppose you have a child who has severe autism, who has difficulty with transitions, who has a real need for routine and predictability.

Just saying that the child is going to go back and forth between two homes may not even be an option. So you really need to be working with people who can help you think of solutions that will work in your case, who will know what questions to ask and who will have insights as to how other families have dealt with similar situations. It’s also really important to work with professionals who understand some of the implications of the decisions that you’re making.

For example, if you have a child with disabilities and they are eligible for public benefits like Medicaid, where they may at some point be eligible for public benefits like Medicaid, you want to make sure that how you structure your divorce doesn’t inadvertently make them ineligible for services. So you want to work with professionals who have some awareness and understanding about things like special needs trusts and who can connect you with estate planning attorneys that can help you prepare a document like that if you needed it.

You also want to have a professional to work with who appreciates the role of other service providers in your child’s life. Many children who have disabilities, for example, are receiving a lot of services at school, or need to receive a lot of services at school. So decisions about where the child lives could directly affect where they go to school, and could also therefore affect what services they’re receiving. So everything’s connected. And not every mediator, not every attorney, not every person that you’re dealing with is necessarily going to understand those connections.

We’re very fortunate. We have some pretty unique insights into this. I mean, before I was a mediator, I worked as an attorney. As a special education attorney, I’ve worked with families who have kids with disabilities for my entire professional career, and I continue to do that as a mediator. I actively seek out families who are going through divorce who have children with disabilities.

It’s something I enjoy doing. It’s something that I feel I can really help people with. And frankly, not every professional is comfortable jumping into those situations because they can be complicated and they can be a little messier. But what we try to really do is we try to say to families, look, if you’re going through this, we can help you. We can help you find those creative solutions that you need.

We can help you be aware of some of the landmines that are out there in those labyrinths so that in the end you’ll be better off, your family will be better off having gone through this process with us, rather than frankly wasting a lot of time and resources trying to fight it out in court and having a court decide issues that they’re in a really poor position to decide.

Karen Salib (8:03) Choosing Supportive Professionals Who Embrace Complex Family Challenges

Yeah, I feel like I really liked what you had said. And as far as these difficult situations where you’ve got a lot of practitioners who are running, running away from it, but I feel like at New Hope, and specifically with your experience, we really do, you know, try to run towards those families and provide the assistance that they, that they so desperately need in these really challenging times.

Josh Kershenbaum (8:24) Tailoring Support and Spousal Arrangements for Families with Special Needs

Yeah. And also, again, to understand how the disability can affect the divorce decisions. So, for example, child support. So in many situations, typical situations, child support tends to end when a child turns 18 or graduates from high school. But when a child has continuing, ongoing special needs, sometimes support needs to continue after the child is 18 or after the child has graduated from high school. Support can go on for a longer time.

And frankly, in mediation, the family could decide to continue support for as long as they feel it’s necessary. Similarly, with spousal support and alimony, sometimes one parent is so involved in the child’s care that it affects their ability to work or to maintain full-time employment. So, depending on how the co-parenting agreement goes, it could affect the need for continued spousal support or alimony. And again, every situation is different, but what you want to do is you want to work with people who can take a step back and see how all of these are connected and help you have an organized conversation about these things so that in the end, the overall agreement meets the needs of your families, which is just not something you can get from turning it over to a judge in court.