02 Jan Adoption: Will My Recent Divorce Impact My Adoption Agreement Already in Place?
Adoption remains a hope-filled, gut-wrenching journey and even in the most amicable cases, divorce rocks the world of parent and child alike. Meld the two into one time-frame and stress expounds. The impact of divorce on adoption agreements is largely based on the stage in the process and the type of adoption.
Divorce before Adoption Finalization
Finalization is the term used to describe the legal process of permanently transferring a child from the agency, county or state to the adoptive parent’s care. This takes place after the child lives in the home of the foster parents for a pre-determined amount of time. Usually, this is six months.
Divorce has the potential to stop an adoption agreement that has not been finalized – depending on the type of adoption contract.
In many consensual adoptions, birth parents voluntarily relinquish their parental rights and agree to give the child to the adoptive parents. Relinquishing parental rights does not necessarily establish such a timeline. Rights may be forfeited early or late in the process, subject to court approval. In this process, the birth parents have the right to assume or require that the adoptive parents be married and/or that the described timeline be put in place.
This contract-driven adoption, of course, allows for birth parents to rescind the contract should the birth parents not meet their expectations, in this case, being married during the period before finalization.
For instance, potential accusations of fraud arise when near-to-adoptive parents divorce. Birth parents may question timing and misrepresentation. If birth parents believe the couple misrepresented themselves as married while intending to divorce, allegations of fraud may halt adoption proceedings.
Additionally, international adoptions entail another layer of complexity. Intercountry adoption occurs when a child from a country outside of the United States adopts into an American family. The process for foreign adoptions proves long and arduous. Divorce before finalization, of course, adds to this complexity. In cases of divorce, adoption laws of the child’s birth nation control the outcome of the adoption.
After adoption finalization
If the adoption is finalized and the child is in custody and care of the adoptive family, the adoption stands. Once finalized, the birth parents no longer possess the power to contest the adoption. In divorce cases involving adopted children, the divorce proceeds with the adopted child being treated as biological offspring. Custody, visitation and child support remain the issues in these divorce cases involving adopted children.
Subsidy considerations
Another consideration involves the receipt of federal subsidies. Adoptive parents receive Title IV-E Adoption Assistance from the federal government. In cases of divorce after finalization, determination of who receives these monies must take place. The courts are clear that Title IV-E is for the benefit of the child and not the parent. Furthermore, the IRS states that the income is tax-exempt and considered public welfare which helps the child. Decisions made as to who receives the subsidy are based on these understandings. Finally, these funds do not affect child support. The child support for an adopted child remains the same as for a biological child with or without the Title IV-E funds.
The laws around adoption and divorce are complicated and vary by state. Each case is unique and determined on its individual merits. Family law lawyers can help in this overwhelming sea of information when required.