Divorce with children is always more complicated, and a child with special needs only increases the level of complexity. Your unique family situation can strongly influence the outcome of your divorce.

In Texas, the Courts generally follow the Texas Family Code's guidelines for establishing child support.  Those guidelines set out a percentage of the Obligor's net income (gross income less taxes only) for child support regardless of the income of the Obligee (person receiving child support). Over recent years, however, the Courts have started to take a closer look at the specific circumstances of the family. Typical considerations will include the possession time each party has, the relative income of each party and the needs of the child or children that is above those of other children.

When a Court deviates from the straight percentage calculation, the Judge must set out the reasons for such a deviation. So, if one is attempting to vary from the Family Code's Guidelines, the Court must hear evidence that is compelling enough to warrant such a deviation.

A child's long-term care and support needs may vary greatly from other children if that child has special needs.

The standard child support formula may not be appropriate?

The standard formula used to determine child support obligations in Texas may not net a result that is sufficient for the care of a child with special needs. Such children may have substantially higher health care and child care costs than other children, or even require the full-time care and attention of a parent.  Such extraordinary circumstances would likely leave guideline support insufficient to cover the costs of providing for the child. A Court will take into consideration these costs, as well as the ability of each parent to pay child support, when determining if, and how much, the Judge will deviate from the Texas Family Code's guidelines.

Courts have wide latitude in determining such obligations at trial and have even ordered the custodial parent with the higher income to pay the noncustodial parent-child support or, the Court could order both parents to pay. While the Family Code's guidelines certainly simplify the process by providing an easy calculation, it assumes the resulting dollar amount is fair and that may not be true, because simply stated: “One size does not fit all!”

Child support could last substantially longer

The Texas Family Code provides that the child support obligation for a child without special needs ends when that child reaches the age of 18 and has graduated from high school. It is possible for parties to make agreements whereby support continues beyond 18 and graduation from high school and can include many different provisions, such as provisions for college tuition, room and board, trade school, health insurance, car insurance, cell phones and etc.

Texas Courts will not order child support after the recipient child reaches age 18 and has graduated from high school, unless that child has special needs that are existing at the time and the child requires more care and support than a child without special needs.  A child with special needs may even qualify for child support indefinitely. When determining the amount of child support beyond adulthood, the Court will take into consideration funds or other benefits the child is receiving from other sources as well as the parent's relative ability to continue to pay child support.

Besides child support, the Court also determines property division and whether spousal maintenance is warranted, and many factors are taken into consideration when making such decisions. The level of care a special needs child requires will most likely weigh heavily in a Court's decision for both child support and spousal maintenance.

It is important to give serious consideration to a special needs child's long-term prognosis and the expected cost and level of care that the child will require during your divorce negotiations and/or trial.