Children, Disabilities, and Child Support

 Posted on December 23, 2014 in Family Law

There are specific laws put into place that require parents to fulfill their obligations and ensure that their children are physically, mentally, and emotionally cared for. Even during a divorce between two parents, there are legal regulations that are in effect to ensure that no matter what a financial situation ends up being post-divorce, the children of the marriage are cared for by both parents. This support extends until the children are no longer minors, after which the law assumes that the children are able to support themselves. But what if they cannot?

Children with disabilities require more financial, physical, mental, and emotional support than other children. What also makes these children different from others is that they may still require this support after they are no longer minors. Nationwide there has been a significant amount of case law which indicates that parents do have a duty to support financially children with disabilities well beyond reaching the age of majority.

Non-Minor Children with Disabilities in Illinois

In Illinois, according to the Illinois Marriage and Dissolution of Marriage Act, support for non-minor children may be awarded by either or both parties to ensure that a child who is mentally or physically disabled has the financial means necessary to be supported. This support award may be requested either before or after a child has reached the age of majority. The line being drawn can be a controversial one when defining “disability” in terms of receiving support.

“Disability” Defined

Disability is a term of art that may be difficult to define, but whose definition is extremely important, especially when determining if a child may receive financial support after reaching the age of majority. “Disability” has been defined nationwide in economic terms, using the standard of whether or not a non-minor child is unable to earn a living to adequately care for himself/herself due to a mental or physical disability.

What does “Earning a Living” Mean in this Context?

A non-minor child does not have to be living below the poverty line; he or she only needs to show an inability to afford reasonable living expenses. Generally, courts require that there be a causal relationship between his/her infirmity and the inability to support himself/herself financially. It is not enough that a person cannot support himself/herself; it has to be because of his or her disability that he or she cannot support reasonable living expenses.

How Does the Court Decide Awards for Non-Minor Children?

How much may be awarded to a non-minor child depends on the balancing of a few factors. The court assesses:

• The financial status and condition of both parents;

• The standard of care and living that the child would have had but for the divorce; and

• The earning capacity of the child.

When Does the Disability Need to be Discovered?

In most states, it is important to determine when a disability arose, as support can only be granted to non-minor children whose disability arose before they reached the age of majority.

Other Issues to Consider for Children with Special Needs

It is best to negotiate into a divorce settlement the financial and emotional support needed for a child who has a disability. There are many issues, beyond financial, that may arise during a divorce when there is a child with special needs involved. The following are some issues that should be considered in a divorce decree that go beyond financial matters:

• Who will decide issues regarding education?

• Who will decide issues regarding medical/mental health?

• Who will decide issues regarding a child’s care at the death of either or both parents?

• Who will decide issues regarding a child’s care once he/she has reached the age of majority?

Experienced Family Law Attorneys in DuPage County

Providing for your children can be extremely complex, especially when the children may have disabilities. An experienced family law attorney at Mevorah & Giglio Law Offices can help resolve many of these issues and carve out in the divorce decree financial and emotional support for your child. Contact our DuPage County family law attorneys today for a free and confidential consultation.