Nathalie's article Bullying and Divorce: How it affects families with special needs children was featured in the Daily Journal. The article helps families with special needs children understand that they are not alone.
Divorce is a whirlwind of emotions and has many moving pieces that affect health, income and well-being, especially when it involves families with special needs children.
The divorce rate for families with special needs is over 80%, due to stress, economic hardship and the overwhelming life changes affecting the family structure. This can be extremely hard on a family that already has so many different types of responsibilities and even harder on the child or children involved.
Property division isn't often talked about in these special needs divorce matters, opening the door for greater pressure, lack of awareness, and disparities. In Special needs divorce, over-stressed primary caregivers can be pressured and bullied during a divorce to accept less than their fair share, potentially compromising the well-being of caregivers and children.
The sad truth is that bullying, intimidation, financial abuse or undue economic pressure exist in many of these matters. Two examples are below.
In one recent divorce, a well-meaning parent and primary caregiver was persuaded initially to give up everything, truly everything including her share of the family home, in the name of the well-being of the kids. While the parent may sound like a good parent who deeply cares and prioritizes the children, this can unintentionally jeopardize the well-being of the kids and parents by inserting instability into housing, income stability, health care access, and routine, elements essential for the success of a special needs family.
Here is the fact pattern with some information redacted due to privacy: The family owns a home with a substantial amount of equity, and there are few additional assets in the bank, something common especially in the state of California. The primary caregiver parent makes less income and can only generate that income with family support that will be lost in the divorce. When the divorce was announced, the primary caregiver parent offered (or was allegedly pressured) to relinquish physical custody, to leave the home with no buyout of community property or ongoing benefits to "maintain peace," something that was initially accepted.
In another special needs matter represented by our firm, the primary parent caregiver initially experienced something similar prior to our representation. Our client almost left the family home, just to get out of the marriage, with a willingness to relinquish the equity and the place the children were accustomed to living, thinking that was the best way of not adding more stress into an already difficult life situation. Our client was very overwhelmed by the idea of taking on court dates and paperwork in addition to the already overwhelming demands of a special needs child and was not able to make clear choices. In the end, the court afforded the rights granted to a person in this situation, above and beyond any initial "friendly" (read: coercive) offer by the other party.
It is well established that the family home, if purchased in marriage, is community property and divided equally barring any kind of prenup with a separate agreement. But what about the precedents set and forthcoming that affect this particular arrangement as it pertains to special needs divorce?
The Family Court Review (Schepard & Johnston, 2005) acknowledges in a set of articles that there are complex considerations necessary in a special needs divorce beyond that of a divorce with children without special needs. This was echoed (Pickar & Wilson, 2015) in the development of new risk assessment models for the courts to better understand the complex nature of special needs divorces.
In re Marriage of Cryer, 198 Cal.App.4th 1039 (2011), tells us that special circumstances can result in non-guideline determinations by judges involving support. That means that when there are elements to be considered that do not fit neatly onto a form, the judge can go outside guideline to factor these in. While this particular decision was about high income and wage disparity, this opened the door for non-guideline support decisions.
In re Marriage of Hall, 81 Cal. App. 4th 314 (2000), is another decision relating to non-guideline decisions and emphasizing the importance of detailed records when unique decisions are made by the court relating to special considerations.
In re Marriage of Braud, A067045 (Cal. App. 1st Dist. 1996), involved some important decisions about property division that can pertain to special needs families. For instance, on an appeal on reserved issues, the disputed matter was equity pulled from the family home during separation, deferred sale, offset rental value and access to community property funds, all elements that would equally affect families with and without special needs families. In short, the court decision leans heavily in the direction of ensuring the 50% community property occurs during any unique circumstances in this published case, and certainly, a child with special needs can also be a unique circumstance.
Too often in special needs divorces it is forgotten that each party played a significant role in building the life they have at time of separation. Therefore, no party should struggle significantly more than the other. In matters with special needs families this is even more pronounced. Many times, one family member has a prolonged gap in work experience due to the needs of the child, the emergencies that arises, the therapies needed to be overseen, school management, advocacy, medical appointments, etc. Yet both members of many families are doing equal duty, therefore in a divorce everything should be divided in a way that can meet the needs of their unique situation. No parent in this or any situation deserves to be bullied or to be denied his or her fair share.
Generally, property held within the marriage is evenly split between both spouses at the time of divorce, but this isn't always a smooth process having knowledge of the community property can help smooth out this process. To be convinced, pressured, or bullied into a compromised division of community property is not an appropriate solution and is about more than just "possessions."
There is an opportunity to put and end to bullying, confusion, coercion and alleged complexity in special needs divorces in the name of being "friendly" or "cost-effective." It isn't cost effective to give up half the equity in a home and the court supports better for families, parents and primary caregivers. This form of bullying can affect and compromise the well-being of both caregivers and children alike. It isn't just about money or resources; it is about all people who love a child being able to be there with that child and for that child. For special needs children, where the demand is even more pronounced, it is even more important. What is really friendly is when neither parent is on the verge of destitution and all people who love a child have the breathing room to be a positive influence in that child's life.
Natalie Paluch is a certified family law specialist with the Law Office of Peter A. Lauzon. She is passionate about bringing peace of mind to her clients involved in complex family law matters involving adoption and guardianship cases. Natalie was named to the list of Super Lawyers "Rising Stars" and dedicated exclusively to helping clients with family law matters.,