Divorce and Children With Autism

DISCLAIMER: This article is not a substitute for individual professional advice. If you are considering or going through divorce and have an autistic child, you should consult with an attorney or licensed professional about the specifics of your situation.

Unfortunately, divorce is a reality for many couples and the situation can be further complicated if one more of their children have been diagnosed with autism[1]. And although it is every parent’s hope that their child will eventually become self-sufficient enough to live on their own, it is nonetheless advisable for parents to make plans for the care of the child as a precaution. It should be noted that some states offer programs and services to help children in these situations, however, it’s never certain that those programs and services will continue to exist in the future. As such, it’s vital that parents do their best to create certain safety nets to ensure that their child will be properly cared for. This article will focus on steps that may be taken by the parents to protect an autistic child during and after a divorce.

Notifying your Children

When informing an autistic child that you and your spouse have chosen to seek a divorce, it’s important to carefully consider how to approach the subject[2]. For example, choosing the right time and manner to break the news can be crucial. It’s also best to consider what you will say beforehand and try to set a calm tone when the conversation does occur.

There is a standard approach you’ll want to consider regardless of the specifics of your situation. Assure your children that the separation is not their fault. Instead you may want to present the decision as a shared one and not try to assign blame. Provide an age appropriate explanation of what is happening and what you’re planning. Also, be ready to answer questions and address feelings whenever your child shares them[3]. Lastly, maintaining a schedule and routine will help keep the child grounded during this time of transition.

Special Needs Trust

The purpose of a special needs trust is to provide financial support to a person (in this case, an autistic child) who is unable to manage his or her own financial affairs.  A “trust” is a legal structure in which property is held by one party of the benefit of another (known as a “beneficiary.”) A person who creates a trust is called a “settlor” who then transfers the property to a “trustee.” This property can be almost anything: cash, real estate, intellectual property, etc. For example, Parents A and B could open a bank account and deposit cash into it and transfer ownership of the account to a trustee, thus creating a trust. The trustee would then administer the money in the account for the benefit of the child[4]. Parents A and B would designate how the money is to be used when the trust is established, but the ultimate decisions would be made by the trustee. Trustees are held to a high legal standard and are always required to act in the best interest of the beneficiary.

There are tax advantages associated with forming certain types of trusts, so it’s crucial to consult with a knowledgeable attorney who can help you set one up. Additionally, the parents could designate that certain property is made part of the trust upon their deaths. This can include 401ks, life insurance policies, etc.[5].

Life Insurance

There are various types of life insurance policies available to consumers, including term and whole life/permanent. A term life policy pays only if the death occurs during the term of the policy, which is usually between one and thirty years. There are two basic types of term life insurance: 1) level term, which means that the death benefit stays the same throughout the term of the policy, and 2) decreasing term, which means the death benefit drops, usually in one-year increments, over the term of the policy. A whole life/permanent insurance pays whenever the insured dies. There are three types of whole life/permanent insurance: 1) traditional whole life, 2) universal life, and 3) variable universal life, and there are variations in each category. 

Life insurance policies are especially prudent if one or both of the parents are afflicted with health issues that may lead to a premature death. Caleb Harty, principal at Harty Financial [6], suggests that parents of special needs children consider a both term and permanent life insurance policy. A term policy is supposed to replace income and help ensure that the child will be cared for if one or both parents passes away at an early age. Permanent insurance helps “because the parents will also likely be providing for that child the child’s entire life, and after the parents pass away someday, it can be an effective way to fund a special needs trust which can provide for the child’s needs.”

Citing “[t]he financial strength of the life insurance company” as a common consideration when reviewing insurance, Harty stresses the importance of “[w]orking with a financial professional who has expertise in special needs planning so you can design a plan that takes into account what public benefits the child may receive and costs the child may have both now and someday when the parents ultimately pass.”

If the parents do purchase life insurance policies, it might make sense to designate the special needs trust as the beneficiary instead of their child. 

When a couple is divorced, it’s common for the parents to be required to provide annual copies of the life insurance policies and proof that payments continue to be made. This yearly requirement could be consented to as a stipulation of the divorce.

Last Will & Testament

A will is a legal instrument that states how a person’s possessions will be distributed after they are deceased. Those who receive property are known as beneficiaries and an executor is the person in charge of distributing the estate. When creating a will it’s advisable to consult with a knowledgeable attorney who can recommend the best ways to protect the child. The will could also serve to appoint a legal guardian for the child. In the case of divorce, if a couple has a joint will, new separate wills should be drafted. A joint will is basically a binding legal contract, which cannot be cancelled or revised after one spouse has died. As a result, it’s common for lawyers to recommend against joint wills in the first place.

Additionally, if a parent has one child and that child is autistic, it may be prudent for the parent to execute a “living will” that will clearly state the parent’s wishes if he or she becomes unable to make medical decisions. This is especially important if the autistic child would be unable to make the decisions on behalf of the parent.

Custody and Child Support

Child support is an ongoing, periodic payment made by a parent toward a child’s living and medical expenses. Both parents have a legal duty to provide financial support for their child. When a couple divorces, a court will look to a number of factors to determine the amount of child support that should be paid. Child support can be made toward a variety of costs, such as health insurance, recreational activities, college, car expenses, etc. In the case of an autistic child, calculation of child support can require special considerations that must be weighed by the court. Further, the court will decide which parent is the “custodial parent” or if there is some sort of shared custody arrangement. In cases where custody is not shared, it is the non-custodial parent who will be required to make child support payments to the custodial parent for the care of the child.

Also, when the child turns 18 years old, if he or she is still not able to care for himself or herself, either parent can file for legal guardianship. In such cases, the parents could agree to split the cost of filing and court fees. As a legal guardian, one or both parents would be responsible for the wellbeing of the adult child[7]. It must be noted that guardianship does not happen automatically and must be petitioned for.

The parents must also decide who can claim the child as a dependent on his or her taxes. Usually, a custodial parent will be permitted to claim the child as a dependent. If custody is shared 50/50 between the parents, it must be clarified which parent will be entitled to claim the deduction. 

Decision-Making

Whether the custodial parent will be in charge of certain decisions or if those decisions will require consent of both parents must be clearly defined. For example, decisions regarding education and medical care can greatly impact the life of an autistic child, especially when there are ongoing medical treatments at the time of the divorce. These issues can become a point of conflict for some couples during a divorce if the treatments are expensive and one of the parents does not want to continue paying for those services.

Additionally, if a parent becomes remarried, it should be clearly stated how decisions will be made moving forward. Usually, the new spouse will not be allowed to affect any decisions that have already been agreed up on by the parents.

All family members can benefit from shared decision making. Edward Kruk, Ph.D, Associate Professor of Social Work at the University of British Columbia, is well published on topics involving co-parenting and divorce. Among the 16 arguments he found in support of shared parenting are 3 that cannot be underestimated[8]:

• Shared parenting preserves children’s relationships with both parents
• Shared parenting enhances the quality of parent-child relationships
• Shared parenting decreases parental conflict and prevents family violence

Safety Concerns

If one of the parents suffers from alcohol or drug addiction, it would be wise for the custodial parent to request that the judge include an order that the other parent will not be allowed to drink alcohol or become intoxicated in any way during visitation with the child. Some judges will require that both parents follow this rule. 

Similarly, if the custodial parent is wary that the other parent will have inappropriate guests or companions present during a child’s visit, the custodial parent can request that there will be no other overnight guests while the child is visiting. Along the same lines, as with the previous rule, a judge may require that both parents adhere to this arrangement.

Also, if the child is prone to wandering away from home or is not able to function in a typical environment, a judge may order that both parents must take proper precautions when the child is present. This can include double-sided door locks and other safety devices. These requirements can also extend to when a parent travels with the child.

Notices

When a custody settlement has been successfully negotiated and approved by a judge, the parents must notify certain people of the new circumstances, including administrators at the child’s school, any doctors or therapists, and any caretakers or caregivers. That way it will be clear to everyone involved in the child’s life regarding who has the right to custody and to make decisions. 

Footnotes

1 The relative risk and timing of divorce in families of children with an autism spectrum disorder.
Hartley, Sigan L.; Barker, Erin T.; Seltzer, Marsha Mailick; Floyd, Frank; Greenberg, Jan; Orsmond, Gael; Bolt, Daniel
Journal of Family Psychology, Vol 24(4), Aug 2010, 449-457

2 Parent Tips: Telling Your Kids You’re Getting a Divorce
By Shelly Allred, Pathfinders for Autism

3 How Do We Tell the Kids About the Divorce?
Kruk, Edward, Ph.D.
Psychology Today, Jan 30, 2015

4 Advice for Parents of Young Autistic Children 
Adams, James B. , Ph.D.; Edelson, Stephen M. , Ph.D.; Grandin, Temple Ph.D.;  Rimland, Bernard, Ph.D.; Johnson, Jane
(2012, Revised)

5 In the Blink of an Eye: Special Needs Planning
Journal of Financial Planning, Oct 2006, Vol. 19 Issue 10, p64-74. 8p.

6 Caleb Harty’s responses are for informational purposes only. Neither Caleb Harty nor Harty Financial provide tax or legal advice. Please contact your attorney or accountant and rely on their independent research and advice for these matters.

7 DIVORCE, CUSTODY, AND ASD
CAR Autism Roadmap

8 Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody
Kruk, Edward, Ph.D.
American Journal of Family Therapy, Jan 2012, Vol. 40 Issue 1, p33-55.