Saturday, March 31, 2007
Parenting Tips for Divorced and Divorcing Moms and Dads
By Carolyn J. Stevens, Attorney at Law Published: March 12, 2005
Your parenting plan should spell out your rights and responsibilities in detail. A clear and detailed plan reduces confusion. Reduced confusion leads to fewer arguments about what the plan says. Fewer arguments leads to less tension. Less tension between the parents is better for the children because:
Children hear and see more than you think they do. They hear arguments between Mom and Dad, and they see how angry you are. When you are angry, your focus changes from loving your children and meeting their needs to holding onto your anger at the other parent. This legal case is temporary. The relationship you have with your children is permanent. When the case is over, you parents will still need to parent your children. Turn your arguments over to your lawyers. Let them fight about it. Do everything in your power to preserve your "business" relationship so that you can parent your children. And part of that is:
Do what you can to make the transition between households smooth for your children. Make sure they're ready on time for the other parent to pick them up. Make sure you're on time when you pick them up. Call the other parent if you're going to be late. Do whatever you need to do to avoid fighting and sniping with the other parent in front of your children. If that means waiting in the car and letting the children come to you, do it. If that means staying in the house and sending the children to the car without you, do it.
If you are the parent who pays child support, remember that child support is your child's right, not the other parents' right. Some parents think they're winning a fight if they don't pay support. Children see it differently. They think it means that the nonpaying parent doesn't love the children. Children hurt when they think the nonpaying parent would rather win a fight than take care of the children's needs.
And finally, try to shift your focus from "the other parent" to the children. Your parenting plan is a way for both parents to take the focus off each other and shift focus to the children. Work as a team to meet the children's needs.
Read this article in its entirety at: http://www.divorcenet.com/states/montana/parenting_tips_for_divorcing_and_divorced_moms_and_dads
Friday, March 30, 2007
1. Plan Ahead
Develop a parenting schedule before the holidays.
Avoid scheduling the children for dinner with Dad at noon and a second turkey dinner a few hours later with Mom. Instead, arrange for Dad to spend the entire day with the children in all odd-numbered years, and have Mom spend the holiday with them in all even-numbered years.
If possible, hire a parenting coordinator, usually a child psychologist or divorce lawyer appointed by the court to act as a decision-maker until a judge makes a different decision. You have quicker access to the coordinator than the judge, but the coordinator must be paid.
2. Keep Your Word
Stick to the schedule. Arrive on time and drop off the children on time.
3. Keep in Touch
If the children are not with you for the holidays, call them, and be sure to send cards or email. Consider celebrating the holiday or birthday before or after the actual day. Children love parties and gifts any time - nothing fancy - but something special you create just for them.
4. Let the Children Keep in Touch
If the children spend the holiday with you, let them speak with the other parent. Give the children any cards and email from the other parent, and read the messages to young children who cannot read. If the children are too young to call, help them make or receive a call, and let them have a quiet moment to speak with the other parent. Make sure to avoid planning an exciting activity like gift-opening at the same time that the children are scheduled to speak with their Mom or Dad.
Remember, children usually have a short attention span, so do not blame the other parent if conversations are short.
5. Safe Travel
Make travel arrangements with airlines for long-distance travel. Airlines provide supervision for unaccompanied minors for a nominal fee.
6. The Art of Gift-Giving
Coordinate gift-giving with the other parent. Do not give your child a cell phone if you know Mom is giving her a phone. If your ex-spouse will not cooperate, go ahead with your own plans, but do not complain to the children about the other parent.
7. Acknowledge the Child's Right to Enjoyment
Let your child take gifts to your ex-spouse's home. Conversely, if your child brings home a new toy or bicycle, let your child take it back to her Dad's home, if she wants.
8. To Each His Own
Let the children spend Mother's Day with Mom and Father's Day with Dad.
9. Create Your Own Celebrations
Do not insist upon attending your child's birthday or graduation party if your ex-spouse is throwing the party. Give your own party on another day.
10. Give Your Child Permission to Love Both Parents
Help your child buy or make a gift and card for the other parent, if the child is too young to handle the tasks herself. You are doing your child a favor, not your ex-spouse, because you are giving your child permission to love the other parent - the best gift you can give.
This tips were provided by www.divorcenet.com
See the whole article at: http://www.divorcenet.com/states/nationwide/10_holiday_tips_for_divorced_parents
Thursday, March 29, 2007
This situation can be most recently seen in the divorce of George Steinbrenner's daughter. Her husband was slated to be Mr. Steinbrenner's successor, but now with a looming divorce, his future with the Yankees seems bleak. You can read the story at: http://www.newsday.com/sports/baseball/yankees/ny-spyanks0329,0,4972994.story?coll=ny-worldnews-print
Wednesday, March 28, 2007
If you would like to read the story upon which this blog is based, visit: http://news.bostonherald.com/national/south/view.bg?articleid=191311
Tuesday, March 27, 2007
The full story for which this blog is based can be found at: http://www.kansascity.com/mld/kansascity/news/nation/16964238.htm
Monday, March 26, 2007
If you are trying to determine which parent is more likely to be awarded primary residential responsibility of the minor children look to see who usually or most often is responsible for the daily childcare responsibilities such as the following:
- feeding and preparing meals;
- getting up and getting ready for bed;
- helping with homework;
- conferencing with teachers;
- taking to/picking up from school and extracurricular activities;
- school volunteering;
- taking to/picking up from religious activities;
- Arranging and hosting play dates;
- taking a sick child to the doctor and caring for sick child;
- hiring babysitters;
- shopping for child;
- playing with the child;
- teaching values and manners;
- maintaining and cleaning home; and
- Choosing school and classes.
The courts will generally pick a primary residential parent based on what is in the best interests of the child, but it is important to note that the person who is the primary caregiver for a child may be the person who is awarded primary residential responsibility after a divorce is finalized.
Sunday, March 25, 2007
TAX TIPS FOR THE DIVORCED
by: Marlene M. Browne
This time of year, most people's minds begin turning to madness, basketball and golf. But it's also tax time, and if you are divorced or divorcing, you could run into trouble if you are unaware of the potential traps that await the unwary.
First a review. There are three primary issues when you divorce: dividing property; paying or receiving alimony (or maintenance or "spousal support"); and paying or receiving child support. How these three issues are resolved is what funds the retirement accounts and vacations home purchases of divorce attorneys everywhere. Yet, once the divorce is over, you’ll understand that knowing the tax code and its regulations is nearly as important as familiarity with the substantive domestic relations law in your jurisdiction.
Here are the basics to bear in mind during this pre-April period.
Asset transfers between spouses, consequent to a divorce or legal separation, are generally tax-free affairs. Care of §1041 of the U.S. Tax Code (USC), there is no realization of a gain or loss upon transfer of property, so long as the transaction is “incident to a divorce,” takes place within a year and the recipient of the property is not a “nonresident alien” (if so, you must seek special help to deal with the tax consequences of what are typically tax-free property transfers).
Yet even without a nonresident alien spouse, there are still tricky areas that require special attention because they are not tax-free under §1041. Expert help is required if any third party transfer--say, involving a stock redemption--is involved. Also, if you are divvying up marital property that includes U.S. savings bonds, whoever does the transferring must report the interest on those bonds as income for the year before the divorce. Thereafter, whoever receives those bonds becomes responsible to report interest as income.
But even if § 1041 protects your property transfers from immediate taxation, be cautious about what you agree to give (or take) in your divorce, as you will receive each asset with the transferrer’s basis. So, if you plan on taking that Google (nasdaq: GOOG - news - people ) stock worth $10 million (obtained from your spouse’s judicious choice of employment in 1997 and her consequently wildly lucrative stock options); you will face a huge capital gain exposure when you eventually sell those shares for $430 each, considering your ex got them for $10.
In this example, you'd be better off taking an asset of similar value but a higher basis or, best yet, cash. Similarly, if you owned lovely rental units, which you’ve depreciated to the fullest, you take that property with its reduced basis. Always look to the latent tax bill whenever you agree to “take” an asset in a divorce decree. And make sure that you agree or get an order to have access to all records that would allow you to prove to the IRS what the cost--or adjusted--basis of each asset actually is.
Alimony, as you probably know, is fully taxable as income to the recipient and provides an “above the line” deduction for the payer, provided the conditions of §71 are met. ( See U.S. Code Collection, Cornell Law School.) In other words, to qualify as alimony, the payments must: be made in cash to--or on behalf of--a spouse (or ex); be pursuant to a written document (separation agreement or court decree); not be labeled as nonalimony (this condition reflects that spouses can agree that payments will not be taxable); made in a year that the spouses don’t file jointly (and don’t live together, if the divorce is final); terminate upon the death of the recipient spouse; and not be child support in disguise (more on this later).
Also, don’t try to “front-load” a property payment and call it alimony to take advantage of the deduction. If you do, your so-called “excess alimony” payments could be recaptured and those deductions will evaporate. To avoid recapture, make sure that the alimony obligation doesn’t decrease by more than $15,000 between years, one, two and three. (Consider an alimony trust for more flexibility.)
Now here’s the tricky part. If you are still in the midst of divorcing and are paying temporary support under a “pendente lite” (pending the suit) order, make sure you ask the judge or your attorney to carefully allocate what portion of your pendente lite obligation is alimony, and what portions are not (i.e., represent child support or payments that would not qualify as “alimony” under § 71). Notice: Spouses may reside in the same household and still deduct temporary support--so long as the other criteria are met; they just can’t file joint income tax returns for the year in question. Anyhow, if you don’t allocate your temporary support, you or your spouse could be in for a nasty surprise. For instance, you might try, as the payer, to deduct your unallocated pendente lite obligation as alimony, while your payee spouse objects.
Well, to date, if you live in Delaware, New Jersey, Pennsylvania or Virginia (jurisdictions within the Federal Third Circuit) unallocated temporary support will be considered taxable income to the recipient--you, as payer, win. (See Kean v. Commissioner, 407 F3d 186 (3rd Cir. 2005).) On the other hand, if you live Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming (states in the Federal Tenth Circuit), unallocated support is not considered taxable to the recipient--and you, as payer, lose. (See, Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002).)
If you live anywhere else, you don’t know how your Circuit will rule (the only thing you do know is that the matter will be a proverbial federal case, as federal tax issues are not state court matters). So, avoid uncertainty and nasty tax court cases where you don’t know which precedent the court will follow: Label what each payment is for, and who, if anyone, is entitled to deduct those sums as taxable alimony.
Child support is never taxable to the recipient spouse, nor deductible by the paying spouse, as it’s not considered "income," but rather a payment that is owed on behalf of the child, who just happens to live in the other parent’s home. Don’t even think about labeling child support payments as taxable alimony. If these payments terminate upon an event associated with a child’s majority (attaining age 18 to 21) or emancipation (leaving school, entry into the armed services, marriage, full-time employment or, god forbid, death), then the IRS will go back and recalculate every penny you paid as nondeductible child support. Not only will you be taxed on that previously deducted income, you’ll likely face interest and penalties. Don’t do this.
Finally, what everyone wants to know: Can you deduct your divorce lawyer’s bill? Well, not generally, but it is possible. Under §212, the IRS allows deductions for legal fees incurred in the “production” or “collection” of gross income. Consequently, if you itemize and can prove that your lawyer helped you receive, increase or collect alimony payments, you can deduct her fees but only in connection with the alimony and only if they exceed 2% of your adjusted gross income. ( See U.S. Code Collection, Cornell University.)
You cannot deduct the legal fees incurred to stop or defend against an alimony action. You may, however, deduct legal expenses incurred to obtain tax advice--often encountered in a divorce. But, these fees must your own. (You can’t deduct any fees paid on your spouse's behalf, no matter what they are for). To avoid any problems, your attorney's invoices must be clear, separating the tax planning provided from the purely personal and nondeductible divorce-related services rendered. ( See Rev. Rul. 72-545, 1972-2 CB 179.) Also, if you acquired sole title to real property in your divorce, ask your attorney about adding those legal fees to its basis.
Please, consult with a tax professional to review your tax exposure or savings before your divorce is final. As they say, a person who is his own accountant has a fool for a client.
Written by Marlene M. Browne, a lawyer licensed in New Jersey, Massachusetts and Colorado. In addition to writing, Browne lectures on the law and appears regularly on national radio and TV.
For more information about marriage, divorce and family law, read Boomer's Guide to Divorce and The Divorce Process: Empowerment Through Knowledge by family law attorney Marlene M. Browne.
Saturday, March 24, 2007
To read more about the changes being made in Orange County, see the following: http://www.orlandosentinel.com/orl-dv2407mar24,0,2539145.story?coll=orl-home-headlines
Friday, March 23, 2007
1. Having a child testify should always be the last resort.
2. A motion to allow child's testimony must be filed with the Court and the Judge must grant this motion before a child will be allowed to testify.
3. Fl. Stat Section 61.13(3)(i) will take into consideration the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express preference. This is a broad standard and even a child of 16 may not be allowed to express their preference based on this statute. The child's preference is just one factor of many factors that used to determine who should be award primary residential responsibility of a minor child.
4. Court proceedings can be terrifying to a child, and its important to keep in mind the impact of having to go to Court may have on your child before you request that they be allowed to testify.
Thursday, March 22, 2007
1. Real Property- There is a presumption that all real property held by the parties as tenants by the entireties (whether acquired prior to or during the marriage) shall be a marital asset. (See, Robertson v. Robertson, 593 So.2d 491 (Fla. 1991).
2. Inheritance- Pursuant to Florida Statute Sec. 61.075(5)(b)(2), a spouse's inheritance is a nonmarital asset even if it is acquired during the marriage. However, if that spouse deposits his or her inheritance in a marital account and the funds are no longer capable of being traced, the funds will be considered commingled and a marital asset. (See, Amato v. Amato, 596 So.2d 1243 (Fla. DCA 1992).
3. Use of Nonmarital Asset for Marital Purpose- Use of income during the marriage which resulted from a nonmarital asset does not transform the nonmarital asset into a marital asset. Further, the future income stream is not a marital asset after the marriage is dissolved. (See, Barner v. Barner, 716 So.2d 795 (Fla. 4th DCA 1998).
4. Stock Options- Stock and stock option awarded to spouse by employer which were primarily intended as incentive for future services rather than as deferred compensation for past services are nonmarital assets. (See, Parry v. Parry, 933 So.2d 9 (Fla. 2nd DCA). Unvested stock options acquired during the marriage for past services during the marriage are marital assets. (See, Jensen v. Jensen, 824 So.2d 315 (Fla. 1st DCA 2002).
5. Accrued Vacation-Spouse's accumulated hours of leave from employer is a marital asset subject to distribution. (See, Purpura v. Kelly, 913 So.2d 110 (Fla. 1st DCA 2005).
6. Pensions- Spouse's pension benefits earned during the marriage is a marital asset. (Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986).
Additionally, it is important to note that if you want to claim that an asset is nonmarital, then you will have the burden of proof and you must specifically plead that an asset be set aside as nonmarital.
Wednesday, March 21, 2007
If you would like to read the article on which this blog is based, see: http://www.tcpalm.com/tcp/local_news/article/0,2545,TCP_16736_5417681,00.html
Tuesday, March 20, 2007
If you would like to read the article for which this blog is based, see: http://abclocal.go.com/wtvd/story?section=entertainment&id=5117678
Monday, March 19, 2007
1. Draft a New Will. Often times, if you have a will in place prior to a divorce, your spouse is listed as your main beneficiary. This should be changed to avoid any conflicts in the event of your death.
2. Change Beneficiary on Life Insurance Policy and Retirement Plans. Unless the Court has directed you to name your spouse as the beneficiary on a retirement or life insurance policy, you should change the beneficiary so that your spouse receives no benefits upon your death.
3. Create a Financial Plan and Monthly Budget. One of the hardest things to deal with after a divorce is living within your means on a lesser income. Making a budget and sticking to it can help you reduce the risk of financial disaster in the future.
4. Take Time For Your Children. The aftermath of divorce can be difficult on your children. Its important to establish new routines and traditions with your children that they can count on.
5. Throw Your Negativity Out The Window. Once a divorce is finalized, the parties often times have bitter feelings towards one another. While those negative feelings may be justified, a healthier attitude is to leave the negative baggage behind and move forward.
Saturday, March 17, 2007
Thursday, March 15, 2007
If you would like to read the story that this blog is based upon, please see: http://www.nypost.com/seven/03102007/news/regionalnews/deadly_gripes_regionalnews_john_mazor_and_todd_venezia.htm
Wednesday, March 14, 2007
Tuesday, March 13, 2007
Monday, March 12, 2007
1. Ability to pay is not based solely upon income, all assets, including non marital assets will be considered. White v. White, 617 So.2d 732 (Fla. 2d DCA 1993).
2. Alimony cannot be based on past earnings if those earnings are no longer available. DeSanto v. DeSanto, 621 So.2d 560 (Fla. 2d DCA 1993).
3. Amount of alimony award must be based on current circumstances even when there is evidence that changes will occur in the future. (ex., future inheritance). Hollinger v. Hollinger, 684 So.2d 286 (Fla. 3d DCA 1996).
4. Factual findings of the obligee spouse's monthly needs must be established to determine amount of alimony. Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986).
For more information about how alimony is determined see 2006->Ch0061->Section%2008#0061.08">Florida Statute Chapter 61.08
Sunday, March 11, 2007
Saturday, March 10, 2007
Friday, March 9, 2007
Thursday, March 8, 2007
Definitions of Marriage for Alimony Purposes
1. Long Term Marriage- Can be any where from 14-17 years and up depending on the district.
2. Short Term Marriage- Can go as high as 8 years.
3. Gray-Area Marriage- Can be any where from 6-18 years depending on the district.
If alimony is an issue in your divorce case, you should look to the case law of your district to determine which definition of marriage your case falls under.
Wednesday, March 7, 2007
Tuesday, March 6, 2007
Monday, March 5, 2007
Sunday, March 4, 2007
Saturday, March 3, 2007
- Suspending Florida driver's license.
- Suspending other licenses such as hunting, fishing, as well as occupational and professional licenses.
- Intercepting IRS tax refunds.
- Intercepting Florida lottery winnings over $600, unemployment compensation, and workers' compensation.
- Requiring employers to deduct child support from noncustodial parents' wages (Income Deduction Order).
- Cooperating with the court for issuance of writs, also known as arrest warrants.
- Placing liens on real property and personal property such as cars and boats.
- Reporting the child support debt to credit bureaus, which can affect the noncustodial parent's credit rating.
- Placing bank account levies and garnishment.
If you are not receiving the child support that you are entitled to, you should contact the Department of Revenue immediately. They can be found on the web at www.myflorida.com/dor/childsupport/enforcement.html
Friday, March 2, 2007
Within 28 days after the shelter hearing or within 7 days of the date the dependency petition is filed if the child is in out-of-home placement, the Arraignment hearing must take place. The happenings of at the Arraignment Hearing is governed by Florida Statutes 39.506.
If you would like to read more about the specfics of a juvenile dependency hearing go to www.flocourts.org/gen_public/family/bin/benchbook.pdf
Thursday, March 1, 2007
1. The age and maturity of the children.
2. Whether the child is in school and the closeness of the parents' respective residences.
3. The child's preference.
4. Any disruptive effect on the child.
5. The reasonableness of the time period that the child spends with each parent.
6. The relationship between the periods of rotating custody to other events in the child's life (like school).
7. The parents' attitudes towards one another and how the child will interpret these.
Hosen v. Hosen; 785 So.2d 703 (Fla. 4th DCA 2001).