Divorce and children with special needs disabilities

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There is no question that having a child with a disability is a tremendous source of stress for any couple.

What was once a carefree romantic relationship turns into a painful, confusing, emotional rollercoaster... at least for a time.

Sometimes one partner decides he or she wants off the ride and this leaves a tremendous burden on the spouse left behind.

If the problems in your marriage have reached a crisis stage and you are considering a divorce, first explore all possibilities of saving your marriage.

Often marriages can be saved with the help of skilled marriage and family counselors. If you do not know a counselor, an experienced divorce attorney can recommend one who is properly qualified.

If your marriage cannot be saved, there is still a good chance that you can negotiate a divorce that is fair to both of you without an angry and destructive battle. It is possible to negotiate your differences in a reasonable way.

Talk to your attorney. With the lawyer’s help, negotiations with your spouse can be productive and fair.

Trouble starts when a husband or wife demands too much or offers too little. Reasonable positions lead to reasonable solutions, which lead to divorces that are less painful, less destructive, and less expensive.

Angry divorces tend to be expensive—financially and emotionally. Your attorney’s fee will depend in large part on how many hours are spent on your behalf. Angry divorces take more time and thus cost more money. If you and your spouse can negotiate your divorce in a reasonable way, your lawyer can help you settle the issues in much less time.

What is “No Fault” Divorce?

To obtain a divorce in Connecticut, it is not necessary for either party to prove that the other was responsible for the breakdown of the marriage. One party must merely believe that the “marriage has broken down irretrievably.”

However, the issue of fault over the breakdown is not completely irrelevant, as the “cause of the breakdown” is one of the elements to be considered in connection with any property division or alimony orders.

What is a "Legal Separation”?

A legal separation requires all of the same legal steps as a dissolution of marriage (divorce), including residence, grounds, pleadings, and court appearances. The only difference is that when the decree is rendered, the parties are “legally separated” rather than “divorced” and are therefore not free to remarry. Unless there is an order or agreement to the contrary, rights of inheritance and the duty to support may remain. A legal separation may be changed to a dissolution of marriage (divorce) by either party asking for a dissolution at any time, unless they have filed a declaration that they have resumed their marital relations.

Married couples who wish to do so may separate and live apart, without court permission. The benefit of a court-ordered separation is that the court will establish responsibilities for alimony, support, custody, etc., eliminating uncertainty. A separation agreement signed by the parties will have many of the legal implications of a court-ordered “legal separation.” Such an agreement should only be entered into with advice of counsel.

What ar the procedures in an action for dissolution of marriage or legal separation?

To obtain a divorce in Connecticut, one of the parties must have resided in the state for at least one year. The legal action is started with a formal complaint. This is a document drawn by your attorney which gives some of the facts of your marriage and the claim for relief. The claim for relief asks for such things as alimony, custody, child support, a division of property, or counsel fees.

The complaint is served by a marshal and contains a summons which directs your spouse or his or her attorney to file a response with the court on a certain day (called the “return day”). A form called an “appearance” should be filed by the defendant spouse or his or her lawyer so that all further information about the case can be mailed to him or her. The person served with a complaint for dissolution of marriage can choose not to file an appearance form but will then have no notice of what happens in the case and may be subject to court orders without an opportunity to be heard. There is a ninety-day waiting period after the return day before either party can have the marriage dissolved. Divorces frequently take longer than ninety days.

While waiting for the ninety-day period to end, either spouse may ask for temporary orders of custody, support, visitation, or alimony or ask the court to resolve any other disagreements between the parties. It is also possible for either spouse to seek orders requiring the other to participate in reconciliation conferences. If family violence erupts during the ninety-day waiting period or at any other time, the police will make appropriate arrests if they are summoned. In addition, restraining orders protecting either spouse (or children or other parties or family members) from abuse can also be issued by either the civil or criminal courts.

At the end of the ninety-day waiting period, depending on whether or not the action is contested, the case can either be assigned for trial as a contested matter or can be assigned for a hearing as an uncontested case.

Divorce cases are most often contested when the parties disagree about money or children.

If a case is uncontested, the court need hear the testimony of only one party and will then approve the parties’ agreement if the court finds it to be fair and equitable. If the parties cannot agree about money or the children, the case is contested and both parties will appear for trial before a judge or a referee. A referee is a retired state court judge to whom contested divorces are “referred” (hence the name “referee”) for trial.

What is considered in deciding issues of alimony and property distribution?

In Connecticut, a court may order either of the parties to pay alimony to the other. In deciding the amount of alimony to be ordered, the legislature has ruled that the court shall take into consideration the length of the marriage, the causes for dissolution of marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties, and any property award which may be made to either husband or wife. In addition, where a parent has been awarded custody of minor children, the court will examine the desirability of the custodial parent securing employment.

Connecticut courts may also give either the husband or wife any part of the estate of the other, including real property. In making assignments of property, the same standards applied in alimony awards will be used, as will the chance of the husband and wife acquiring future capital assets and income. The contribution of each of the parties to the purchase, preservation, or appreciation in the value of their estates will be considered an integral part of any assignment of property.

Because circumstances may change, support and custody decisions and alimony are always modifiable, unless otherwise specified. Property awards are not modifiable.

What are the standards established under Connecticut law for the support obligation?

In deciding upon child support, the court will consider both the ability of each of the parents to pay support and the needs of the child. The courts consider the child’s age, health, station, occupation, earning capacity, and amount and sources of income. The courts must also consider Connecticut’s Child Support and Arrearage Guidelines. The guidelines are income-based and indicate the appropriate level of child support based upon the parties’ incomes and the number of the minor children. The guidelines are usually conclusive although the court is permitted to establish a different level of support based upon the particular facts and circumstances of the case. The age of majority in Connecticut is eighteen. However, in an action for divorce, legal separation, or annulment, a court may order child support in accordance with the guidelines for any unmarried child of the marriage up to age eighteen or until the child reaches the age of nineteen or completes the twelfth grade, whichever occurs first. In the case of a child who is disabled or special needs, child support may be ordered until the child reaches age twenty-one.

The court may enter orders for child support beyond the statutory age by written agreement of the parents. Such orders can be made at any time, and for orders entered after October 1, 2001, only, can be modified on motion of either parent like other child support orders.

Beginning on October 1, 2002, when the parents do not agree on child support beyond the statutory age, the court may order either parent to provide support for a child up to the age of twenty-three to attend up to four full academic years of higher education to obtain a bachelor’s degree or vocational training. The support order will be entered only if one of the parents requests such an order before the entry of the judgment of divorce, annulment, or legal separation. However, as long as a parent has requested an order, the court may defer its decision on the amount and terms of the order to a later date by retaining jurisdiction at the time of judgment. An order can also be entered in a support action when parents were never married if the initial order was entered after October 1, 2002. If a judgment or support order was entered before October 1, 2002, parents may not go back to court to request an educational support order.

The court may not enter an order for educational support unless it finds that the parents would have provided support for the child’s education if the family had been intact. In determining whether an order should be entered, the court is to consider all relevant circumstances including: (1) the parents’ income, assets, and other obligations; (2) the child’s need for support to attend school considering the child’s assets and the child’s ability to earn income; (3) the availability of financial aid from other sources, including grants and loans; (4) the reasonableness of the higher education to be funded considering the child’s academic record and the financial resources available; (5) the child’s preparation for, aptitude for, and commitment to higher education; and (6) evidence, if any, of the school the child would attend. The amount that a court may order for educational support is limited to the amount charged by the University of Connecticut for a full-time in-state student, unless the parents agree to pay more. Educational support orders may be modified like other child support orders. To qualify for payments, the child must be enrolled at least half-time in a qualified institution, maintain good academic standing, and make all academic records available to both parents. The child has no right to request or enforce an educational support order.

Who is entitled to custody of minor children?

The court may assign custody of any minor child to either parent, to the parents jointly, or even to a third party, based upon the particular facts of the case. The court will be guided by the best interests of the child, giving consideration to the wishes of the child if he or she is of sufficient age and is capable of forming an intelligent preference. The causes for the dissolution of the marriage or legal separation may also be considered in making a custody award.

Where the parents have reached an agreement the court will usually be guided by that agreement; but, when the parents are litigating custody, the court will not only hear the parents’ cases but may also appoint a lawyer for the children so that their interests may be represented. The parents will be responsible for the fees of the children’s lawyer.

The court is required by statute to order the parents of any minor child or children to attend parenting educational programs in any action dealing with dissolution of marriage, legal separation, annulment, custody, visitation, and child support (not including matters brought regarding temporary restraining orders for domestic violence).

What are visitation rights?

Visitation rights may be granted to the noncustodial parent based upon the best interests of the children. Under limited circumstances, the court may also grant visitation rights to third parties, such as grandparents. Where necessary to protect the best interests of the children, the court may limit or require supervised visitation. The court will set the frequency and times of the visits in its discretion. Traditionally, Connecticut courts prefer to grant the noncustodial parent “reasonable” rights of visitation, without establishing a specific schedule, allowing the children and parents to work out their own flexible program.

How are the court's orders enforced?

If either party fails to comply with the court’s orders or with any provisions of an agreement, there are numerous techniques available for obtaining compliance. These include contempt proceedings, which may result in penalties such as paying the attorney’s fees of the other party—or even incarceration, lawsuits for damages, and withholding of wages or accounts. An immediate or contingent wage withholding will have been issued by the court at the time the support order was entered or modified. The withholding will be effective immediately unless the payee waives immediate withholding or the court decides that such an order should not be entered. Even parties who have left the state can be reached through such statutory systems as the Uniform Reciprocal Enforcement of Support Act.

How are attorney's fee determined?

Legal fees vary depending upon the complexities of the case, the time involved, and the results obtained.

The court may order one spouse to contribute toward the other spouse’s attorney’s fees, but the full amount due each spouse’s attorney remains the obligation of the hiring spouse. The amount ordered to be paid can be credited toward the legal fee. Attorneys cannot always estimate their fees with any reasonable certainty since the fees are dependent upon the attitudes and behavior of the parties as well as the time and complexities of the case.

When you first consult a lawyer, you should discuss how the fee will be determined. In many cases, it will be possible for your lawyer to give you a fairly accurate estimate of the fee, but often the amount of the fee is hard to predict because your lawyer cannot be certain just how complex or time-consuming a matter will be or how much work will be involved. In most instances, a down payment or retainer will be requested in advance to cover any preliminary work or cash disbursements the lawyer may be required to make.

When Reality Hit Me...Hard

I found myself in this situation. I'll never forget sitting across from my then-husband as he announced, "It's time for you to move on with your life." I looked down at my seven-month pregnant belly, and considered my three little boys, ages eight and younger, who were sleeping at Grandma's house. My first son had recently been diagnosed with juvenile diabetes, and my second son had just been diagnosed with autism. My third boy was born with a cataract in his eye, which caused doctors to question whether all three had some sort of genetic syndrome. My unborn child would be here in just a few months, and now my husband was leaving. How on earth would I move on with my life?

It takes two to have a divorce, and I'm sure that my pessimistic, worried nature didn't help create a pleasant mood in our home. I became consumed with medical issues-- those of my boys, and also my own, as I suffered a stress-related illness. I wasn't a perfect companion and I didn't really have the tools or support I needed to cope with these challenges, which seemed to hit me all at once. My greatest regret is that I did not have more courage. Still, I find it highly irresponsible for anyone to abandon a spouse in this predicament. My life, which had already become quite difficult, suddenly was a whole lot harder.

My Advice...

What advice would I give to someone going through a divorce while parenting a special needs child? Here are a few things I would strongly suggest:

1. If there is any way to salvage your marriage, SALVAGE it. Your child has enough chaos and adversity already, without having the added confusion of trading parents back and forth, or losing one parent entirely. Imagine the frustration for a child who relies on consistency, like an autistic child, to suddenly have to switch environments every few days. Not a secure situation. Your child, especially a special needs child, will benefit greatly from your marriage enduring. For tips on improving your marriage, see my blog, "Keeping Your Marriage Strong While Raising a Special Needs Child."

2. You cannot do this without help. You've got to find family members, friends, counselors, social workers, neighbors, people who attend your church, or anyone else available to you for support. If contacting people with special needs seems overwhelming, get your closest friend or family member to start the process. Contact that individual and say, "I need your help. This is what I need... " and be clear. Ask this person to make some calls for you. See my blog, "Finding Support: Parents of Special Needs Children" for more specific advice.

3. As hurt and heartbroken as you may feel, do not purposely limit your child's contact with the other parent. Unless there is addiction, abuse, or an unsafe situation, your child needs frequent contact with his other parent, for his own emotional well-being. It's incredibly painful to drop off your son or daughter with your former spouse. I know this all too well. But you will have to be strong for the sake of your child. For the first several weeks, I set-up visits with my friends each time my boys went with their father. It helped knowing I would not be alone.

4. Immediately make this chaotic time as structured as possible for your child. Set-up specific, reliable visitation dates. Keep drop off points at the same place each time. Create a routine. Provide a comfort object for your child to take with him on all visits. Make your child a calendar with the visitation schedule clearly marked, and let her cross off each day, so she can predict her visitations in advance.

5. Do not argue in front of your child. Do whatever you can to keep his life peaceful and as uncomplicated as possible. If necessary, get a mutual friend or acquaintance to accompany you to visitation drop offs, to limit any hostilities.

6. Have faith, courage, and hope. Trust me; I could not have imagined a worse scenario for my life. It seemed like all was lost. But life has a tendency to eventually turn the tables. You just have to be patient, and keep doing what's right. Focus on your child, but also nurture yourself. I've found that karma, fate, or destiny (whatever you choose to call it) will eventually reward these efforts.

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