Recently, I learned a story of a special needs family divorcing that broke my heart, and the saddest part is that it is all too common. In this story, the parent who was the primary caregiver was inclined initially to give up everything, truly everything, in the name of the well-being of the kids. Sounds like a good parent who deeply cares, all of which is true, but think about the well-being of the kids and parents, and how they all are affected by these decisions including loss of parent, stability, health, income, and more.
Here is the fact pattern with some information redacted due to privacy: Family owns a home with a substantial amount of equity, there is some money in the bank, but very little compared to the home equity, something common especially in the State of California. The primary caregiver makes less income and can only generate that income with family support that will be lost. When the divorce was announced, the primary caregiver parent offered (or was pressured) to relinquish physical custody, to leave the home with no buyout of community property or ongoing benefits, something that was initially accepted.
In this situation, one parent, who made every sacrifice so that the other could generate an income despite the challenges of raising a special needs family, is concerned about how to make it through the year, losing her income, benefits, housing, equity and more while the other makes and retains a very comfortable lifestyle.
With an 80% divorce rate among families of children with special needs, the sad truth is that parents, many times who are primary caregivers both male and female, and many times already in very high stress or compromised positions themselves, are getting coerced, pressured, bullied, or just confused into accepting deals that put both themselves and their children into a less-than-ideal scenario.
A special needs parent that our firm represents [with permission given by our client] 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 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.
Here's how the law really works. It is more simple than it seems. Community property says each party has 50% ownership of all property and assets established during a marriage. No party should struggle significantly more than the other, since each party built the life experienced by both. 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. But both members of many families are doing equal duty, 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. 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. Let's put an end to some of the bullying, confusion, coercion and alleged complexity in special needs divorces in the name of being "friendly." 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.
Your divorce will impact your life in many ways. One of the biggest concerns for many spouses involves how property will be divided once the divorce has been finalized. Property division is complex, but it doesn't have to be.
Your pension plan and other retirement assets play a big role in helping you achieve your goals for the future. The thought of divorce may have never crossed your mind but now it is wreaking havoc on your dreams of a peaceful and luxurious retirement.
A prenuptial or postnuptial agreement is a great way to protect assets in the event of a divorce. Most individuals can benefit from having some type of agreement when entering into a marriage, especially those who have businesses, significant assets or children from a previous relationship.