Pennsylvania Special Needs and Asset Division in Divorce
Asset division divorce law in Pennsylvania does not specifically recognize the care of a disabled or special needs child. It does, however, have catch-all provisions that might allow a judge to take such things into consideration. I can help you translate state family law into meaningful decisions for your family in the event you have a special needs child and you are going through a divorce. Call my office at 215-345-5259 for a free, first consult for new clients.
Pennsylvania is an equitable division state, meaning that the court will divide marital property equitably according to 11 factors in the Pennsylvania Divorce Code Section §3502(a). I have listed those parts of the Code that may apply directly to the extra care and resources required if you have a special needs child, with a discussion of each.
§3502(a)(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties. This provision of the law is quite strictly based on evidentiary proof of a parent’s previous and current earning capacity. It is not unusual for a parent’s earning power to be affected or impaired by the need to stay home and care for a disabled child.
§3502(a)(4) The contribution by one party to the education, training or increased earning power of the other party. This paragraph of the Code comes into play if one parent, by attending primarily to the needs of the disabled child, can be proven to have freed up the other for more earning potential. Again, it is not uncommon for one special needs parent to assume primary caregiving responsibility so the other can work a fulltime position.
§3502(a)(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker. The last phrase here is the best the current law has to articulating the value and contribution of a stay at home parent to the other parent’s income. A 2012 study published in the journal Pediatrics found that overall earnings in families with children with autism are 28% ($17,763) less compared to families whose children do not have health limitations, and 21% ($10,416) less compared to families with children with other health limitations.
§3502(a)(10) The economic circumstances of each party at the time the division of property is to become effective. It is not uncommon for a stay at home caregiver to search for fulltime employment after a divorce. Special needs caregivers, though, are sacrificing time they used to spend taking care of their child, and someone else will have to fill that gap for the child. For special needs family, this calculation is more complicated than just putting a child into daycare, as they may require special attendants, therapists or nurses while away from the home.
§3502(a)(11) Whether the party will be serving as the custodian of any dependent minor children. The conversations about custody in a special needs divorce are particularly delicate. For starters, Pennsylvania education laws allow for a special needs child to remain in the school system until age 21. Parents may also have shared legal guardianship of their special needs child past the age of 18, and potentially for a lifetime.
If the child is to remain in the home of one parent past the age of 21, there is no legal consideration for the custodial parent beyond 21.
All these considerations, and more, come into play when a divorce happens in a special needs family. Because the law does not specifically address these situations, divorcing special needs parents often find a more equitable path is mediation or collaborative divorce — two pathways that allow spouses to craft a Marital Settlement Agreement not beholden to the limitations of Pennsylvania’s equitable distribution law. Such an Agreement, when signed by both parties, can be entered into the Court’s system and become a Court Order.
– Elissa C. Goldberg, Esquire
Law Office of Elissa C. Goldberg
107 North Broad Street, Suite 211
Doylestown, PA 18901
Phone: 215-345-5259
Fax: 215-345-7458