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Divorce with Children who have Special Needs or Disabilities, with Josh Kershenbaum, Esq.

Divorce is an emotionally taxing journey, even more so when children with special needs or disabilities are involved. The complexities intensify as parents try to navigate the dual labyrinths of special needs parenting and divorce, each fraught with unique challenges and emotional turmoil. In a recent conversation with Tina Keyes, Josh Kershenbaum, an attorney-turned-mediator who has spent the majority of his career working with families who have children with special needs or disabilities, offers in-depth, practical advice . This blog post summarizes their discussion, packed with invaluable insights and actionable advice for parents facing these daunting circumstances.

Understanding the Dual Complexity

Going through a divorce is rarely straightforward, and when children with special needs or disabilities are involved, the complexity magnifies. Josh Kershenbaum paints a vivid picture of this dual challenge, comparing it to overlapping labyrinths—one representing the world of special needs parenting, and the other, divorce. He emphasizes the need for professionals who can stand at the intersection of these labyrinths, helping parents navigate their way out.

"Being a parent of a kid with disabilities is a labyrinth in and of itself," says Josh. "And going through divorce is another labyrinth."

The right professionals must have sensitivity, open-mindedness and a deep-seated desire to lean into the challenges and help parents find solutions and compromises.

The Importance of Language

The terminology used to describe special needs or disabilities can be a hot-button issue, varying widely in preference and acceptance. Josh rightly points out that the words we choose can significantly impact how people receive our messages. He advises parents and professionals alike to be intentional in their language choices and to listen actively to the families involved.

"Different parents have different preferences for what terms and terminologies we use," Josh explains. "It's always about being as inclusive as possible and trying to help."

It is important for professionals who work with these families to use the terminology that is most comfortable for that particular family.

Addressing Misconceptions

A persistent myth surrounding families with special needs is that there is a significantly higher divorce rate among parents of children with disabilities. Josh debunks this myth, emphasizing that there is no substantial evidence to support it.

"There's absolutely no evidence that 80 percent of parents with kids with disabilities get divorced," he says. This unfounded statistic only serves to add unnecessary stress to already overwhelmed parents. Josh further clarifies that, for many parents, having a child with special needs or disabilities can actually strengthen the marriage, not tear it apart.

Key Considerations in Parenting Plans

Parenting plans, which outline how parents will share responsibilities after divorce, are especially crucial when children with special needs or disabilities are involved. Josh highlights that these plans must be tailored to accommodate the unique needs and routines of such children.

For instance, "If you have a child with severe autism who struggles with transitions, a traditional 50-50 custody split might not be feasible immediately," Josh explains. Flexibility and creativity in these plans are essential, allowing room for gradual transitions and adjustable terms.

The Role of Mediation and Collaborative Divorce

Central to their discussion is the advocacy for alternative dispute resolution methods like Mediation and Collaborative Divorce, which keep parents in control of the decision-making process. These methods are cost-effective and less adversarial, promoting cooperative problem-solving.

"Mediation allows you to have a process that keeps you in control, it's child-focused, and it enables you to have flexibility," Josh notes. Collaborative divorce, similarly, involves a team approach including professionals like financial neutrals and mental health neutrals, ensuring all facets of the divorce are managed sensitively and effectively.


Mediation involves a neutral facilitator who helps the parents come to an agreement. This approach is particularly beneficial for special needs families because it allows for customized solutions tailored to the child’s specific requirements.

Collaborative Divorce

In collaborative divorce, each parent has an attorney, but both attorneys are specially trained to focus on negotiation and settlement rather than litigation. Additional professionals, such as financial advisors and mental health experts, join the team to provide a holistic approach to resolving the issues at hand.

Financial Implications and Support

Financial considerations are another critical area affected by special needs. Divorce involves splitting assets and determining support. In these cases, the support may not be structured in the typical way or may last much longer than in most traditional divorce cases. Josh emphasizes the importance of involving a range of professionals to address these nuances comprehensively.

"You're going to need a variety of professionals to answer all the questions that will arise," he says. This might include setting up a special needs trust or adjusting spousal support based on the parents' employment situations post-divorce.

Flexibility and Forward Planning

Flexibility is key in any parenting plan, but even moreso when dealing with special needs or disabilities. Children’s needs can evolve, making it essential to have provisions in the agreement that allow for adjustments over time. Both Josh and Tina recommend explicitly building review periods into the agreement where parents commit to revisiting and possibly revising the plan.

"One of the hardest parts about going through divorce [are] all of the other voices, all of the other people who have opinions about what you should do," Josh points out, highlighting the importance of creating a system that works uniquely for your family, rather than following a one-size-fits-all approach.

Realistic Expectations

It's important for parents to maintain realistic expectations about their own capabilities and limitations. Divorce professionals often need to coach parents to balance their aspirations with practical realities, considering work schedules and the child’s specific needs, especially when those needs may be robust.

Building a Supportive Team

Building a team of professionals who understand the intricacies of both divorce and special needs is crucial. This team should include mediators, collaborative attorneys, financial experts, and/or mental health professionals who have experience in this unique intersection.

"Surround yourself with professionals who can answer the questions that you need answers to," advises Josh. This network will provide the essential support system needed throughout the process.

Process Over Outcome

One of the critical takeaways from the discussion is the focus on the process itself, rather than just the outcome. Ensuring that the divorce process maintains the well-being of the children and promotes a constructive co-parenting relationship should be paramount.

"Every divorce starts and ends the same way, it's the middle part where you have the choice," Josh explains. Focusing on a process-oriented approach can alleviate some of the anxieties and uncertainties that come with this life-changing event.


Divorce is never easy, and when children with special needs are involved, the complexities can feel overwhelming. However, by understanding your options and surrounding yourself with a team of experienced professionals, you can navigate this challenging time more effectively. Flexibility, open communication, and a focus on the child’s needs are all essential components in creating a successful transition for both parents and children.

"There's no one-size-fits-all approach," Josh concludes, reinforcing the necessity of personalized, thoughtful planning.

If you find yourself in this challenging situation, seek out professionals who are dedicated to making the process as smooth and supportive as possible. Navigating two labyrinths simultaneously is daunting, but with the right guidance, you can find your way through.

By understanding your options, involving the right professionals early, and maintaining a flexible, child-centered approach, you can make a complex and emotionally taxing process a little more manageable.

To reach out to Josh Kershenbaum, you can visit his website at

To reach out to Tina Keyes, you can visit her website at



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