Divorces involving children with special needs present distinct legal and practical challenges. Family law practitioners in Illinois must navigate not only the traditional aspects of custody (now referred to as “allocation of parental responsibilities”), parenting time, and support, but also the unique needs of these vulnerable children whose care often requires additional planning, resources, and long-term considerations.
Allocation of Parental Responsibilities and Parenting Time
Under Illinois law (750 ILCS 5/600 et seq.), courts must allocate parental decision-making authority in four key areas: education, healthcare, extracurricular activities, and religious upbringing. When a child has special needs, healthcare and education decisions become particularly significant.
Judges often look for highly detailed parenting plans that address:
• Coordination of medical care, therapies, and educational services (including IEP or 504 Plan meetings).
• Transportation logistics for medical appointments or therapy sessions.
• Consistency in therapeutic interventions and treatment plans.
• Plans for emergency medical situations.
• Specialized childcare or supervision needs.
Courts expect parents to demonstrate a clear understanding of the child’s current and future needs. A failure to address these details may lead to additional litigation or modifications post-divorce.
Child Support and Special Needs
Illinois calculates child support using an income shares model (750 ILCS 5/505). However, when a child has special needs, courts may deviate from the standard formula to account for extraordinary expenses such as:
• Ongoing medical treatments
• Therapies (occupational, speech, behavioral, etc.)
• Specialized equipment and adaptive technology
• Private education or specialized programs not covered by public services
• Respite care or personal attendants
Practitioners should present detailed evidence of these expenses, including documentation from medical providers, therapists, and educational professionals.
Support Beyond Age of Majority
Illinois law (750 ILCS 5/513.5) allows for the continuation of child support beyond the age of majority if the child is physically or mentally disabled and not otherwise emancipated. This is a crucial provision for families of children with lifelong care needs.
Attorneys should help clients consider:
• The potential need for adult guardianship or powers of attorney.
• Coordination with government benefits such as SSI, Medicaid, and vocational services.
• Establishing a special needs trust to preserve eligibility for public benefits while providing supplemental resources.
Guardianship and Decision-Making in Adulthood
As a child with disabilities reaches adulthood, parents may need to pursue adult guardianship under the Illinois Probate Act (755 ILCS 5/11a). This can ensure that parents (or designated guardians) retain the legal authority to make critical decisions on behalf of the child.
Collaborative Approaches and Expert Involvement
Divorces involving special needs children often benefit from collaborative law, mediation, or the inclusion of child specialists, medical experts, and financial advisors. The involvement of a special needs planner can help families navigate complex financial and legal structures such as:
• Special needs trusts (third-party and first-party)
• ABLE accounts
• Long-term care planning
Conclusion
For Illinois family law practitioners, cases involving children with special needs require heightened diligence, a thorough understanding of both family and disability law, and a commitment to long-term planning. Attorneys must help their clients anticipate not only the immediate post-divorce period but also the evolving needs that may extend well into adulthood.
