Question: Before my wife sued me for divorce, I was injured and became permanently disabled. I was able to get my disability pension with my company and a settlement from the person who ran into me. My wife is claiming she is entitled to share in all of these funds. My lawyer seems to think that since I can’t work anymore, she is entitled. That doesn’t seem right to me. Can you give me any tips as we are nearing a settlement on terms that I don’t think are fair.

Answer: Disability pensions and settlements of personal injury cases in the context of divorce should be viewed as having several parts: 1) compensation for lost earning capacity, 2) pain and suffering, and 3) loss of future income. To the extent you are compensated for lost earning capacity – meaning loss of future income – and pain and suffering, these portions of the payments are generally viewed as being separate property and not subject to equitable division. On the other hand, to the extent the payments you receive are retirement benefits, they are probably marital property and subject to equitable division.

These are complicated situations which require the use of experts to value the various components of the payments you are receiving. If the proposed settlement does not appear fair to you, tell your lawyer your feelings and, if an expert has not been retained, make sure this is done before you sign on the dotted line.

Question: My husband and I have two children, four and eight, the younger of whom is a special needs child. We are now in the throes of a divorce and, although my husband does not object to my having custody, we have been arguing over how much additional financial settlement and support I should receive to allow me to care for our disabled son, educate him, and allow me to continue to stay home with him – which I have done since I stopped working shortly after his birth. My husband wants to reduce my share of property division because I have not worked for the past six years, wants me to go back to work, and wants our son placed in a facility at least during the day. Our divorce lawyers are running up huge bills by spinning their wheels and accomplishing nothing. They can’t seem to see the forest for the trees. We have a very special problem here that needs attention. Can you give us some guidance?

Answer: It seems that your lawyers are looking at this problem as one that can be solved in a traditional manner in divorce court, and that is far from the case. Planning for disabled children is much like planning for incapacitated adults --- you, your husband, and your lawyers must first understand what services are available before you can begin the process.

While you and your husband may know best what it costs to care for your son when he is at home and to otherwise run the household, there are other issues that we believe should be addressed. First and foremost is the necessity of you staying home as opposed to other care alternatives which may be available. These issues are best addressed by experts in the field with whom you should consult. Second, when it comes to education and other available services, rather than argue, you and your husband – and your lawyers – should use your energy to research the wide array of programs available for your child﷓﷓﷓many of them free of charge.

Under state and federal law, all handicapped children between the ages of five and 21 are entitled to a free special public education. Children three years of age or older are generally entitled to Early Intervention Services from local school districts ﷓﷓ free of charge. Eligibility is based solely on clinical need. These services must be tailored to your child's individual needs by the school district, and you and your husband are entitled to participate in the plan which is prepared for your child. The school district must also provide transportation, parent counseling, and residential services, if needed. To prevent regression, the district must provide a summer program. And no child can be rejected, regardless of the severity of the handicap.

In addition, states also provide vocational programs, independent living centers, and other rehabilitation services. Many of these services are free of charge, but some require reimbursement from the parents. And there are other federal and state benefit programs – such as Medicaid and SSI -- for which your son will probably qualify.

We believe it would be a good idea to check out these and other programs, and make sure you and your lawyers know all of the options before you make a final settlement. But you and your husband must avoid a settlement that makes your daughter ineligible for these services or exposes you and him to reimbursement. We suggest that you hire an elder law attorney knowledgeable in these programs to help you with your settlement.