Divorce and Taxes: Joint or Separate Returns, Children as Dependents

Posted by Daniel Clement on February 24, 2010

The deadline for filing tax returns is approaching.   For those going through divorce, questions abound; should I filed as married or single? a joint or separate return? Can I take the children as dependents?

Carley F. Mealey, an accountant at the Brisbane Consulting Group prepared an informative newsletter, Tax Tips for the Divorcing Couple, which addresses some of the most common divorce and tax issues. I share some of her insights here:

  • Who can file a joint  tax return?

Unless you have been legally separated before December 31, you may still elect to file a joint return.

  • Should I file a joint return?

By filing a joint return, you and your spouse are agreeing to be jointly and separately liable for any errors, omissions or deficiencies on the tax return. If you are concerned that your spouse might be under-reporting income or over-reporting deductions, it may be wise to consider an alternative filing status

  • When can  I file as single person?

You would be required to file as Single if you are unmarried as of December 31, or if you are legally separated as of the end of the year and you do not qualify for another filing status.

  • Who gets to claim the children?

Generally, the right to the dependency exemption for the children goes to the custodial parent.. . .However, beginning with tax year 2009, it is no longer required that the custodial parent provide more than half of the child’s support. Instead, the only requirement is that the child cannot provide more than half of his own support

  • Can we agree to alternate who gets to claims the children?

Yes. If you and your spouse have agreed to share or transfer tax rights for the children, a copy of Form 8332 must be signed by the custodial parent and attached to the tax return of the noncustodial parent. This election can be for the current year or for future years.

Given the complexity of the tax code, prior to preparing your return, you should consult with your tax preparer and your divorce attorney before filing your return.

Getting Divorced-Stay Off Facebook!

Posted by Daniel Clement on February 22, 2010

The American Academy of Matrimonial Lawyers issued a recommendation that people going through or contemplating divorce stay off Facebook and other social networking sites.

As reported in the Arizona Divorce and Family Blog:

"Going through a divorce always results in heightened levels of personal scrutiny. If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence," said Marlene Eskind Moses, president of the AAML. "As everyone continues to share more and more aspects of their lives on social networking sites, they leave themselves open to much greater examinations of both their public and private lives in these sensitive situations."

While this certainly seems like obvious advice, I am always amazed about how otherwise sophisticated people forget or just do not care that their estranged spouses are following their Facebook “status updates” –the danger being that their updates may undermine or contradict their litigation positions.

For example, it would be absurd for a party claiming that he/she is indigent to have recent profile photos showing them polishing a brand new expensive car or showing details of an exotic vacation. Likewise, it would be damaging for a parent engaged in a custody dispute to have profile photos showing them abusing alcohol or drugs or engaged in some scandalous activity.

Even if the posts are not legally damaging, updates bragging how well they are have adjusted to their newly single life or discussing plans with members of the opposite sex, could inflame their ex’s feelings of jealously, making it more difficult to settle a divorce.

In criminal cases, litigants are told they have the right to remain silent. People going through divorce should similarly exercise that right. It is better to err on the side of caution and stay off social networking sites until your divorce is final.


 

Should There Be No Fault Child Custody Laws?

Posted by Daniel Clement on February 18, 2010


Ruth Bettelheim in the Huffington Post and in an op-ed piece in the New York Times argues that we should have no-fault custody legislation.

Ms. Bettelheim’s correctly urges that custody battles are damaging to children. Indeed, most family law practioner’s would agree that children are the unintended victims in contested divorces, particularly when custody is in issue. As a result, most would agree that reducing family conflict and the acrimony of divorce would be beneficial to the children’s well-being.

As Ms. Bettelheim aptly points out, however, litigated custody battles have just the opposite effect; parents at war are forced to “do their utmost to demonstrate that they are the better parent — and that the other one is worse, unfit or even abusive.”

Her solution, however, to force parents to enter into binding mediation agreements that “could not be discarded or contested later if new disagreements were to arise” is untenable.

First, the needs of the children and their relationships with their parents change over time; parents must have an ability to address these changes with court intervention if necessary. Clearly, a parenting plan created when children were of pre-school age will not address the needs of teenagers.

Secondly, a non-modifiable custody plan would give little consequence to a parent who willfully violates a visitation schedule or attempts to alienate the children from the other parent.

Perhaps a better solution to lessening the pain inflicted from a contested custody battle would be to start with a presumption that both parents are fit and that some type of joint custody arrangement is warranted. In most cases, both parents want to be involved all facets of their children’s lives; decisions regarding the children’s health education and welfare should be shared. Likewise, children should be afforded sufficient time with both parents to create strong and lasting bonds.

Obviously, joint custody could never be an option in cases, where, for instance, there is evidence of abuse, abandonment or mental illness.

If sole custody was an option only in those cases where one of the parents was unable, unwilling or unfit to share custody, I am sure there would be far fewer custody fights, thereby achieving Bettelheim’s goal of “peace between parents” and an end to custody litigation.
 

Can Video Surveillance Be Used in a Divorce

Posted by Daniel Clement on February 09, 2010

When one spouse suspects the other of having an affair, the knee jerk reaction is to hire a private detective to get the"smoking gun.” It is permissible to hire a detective to “snoop around” even when the spouse having the affair has an obtained an order of protection against the other.

“The hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.”   Anonymous v Anonymous

According to the Court opinon:

The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims. The husband was not required to accept that the wife had necessarily ceased her extramarital affair merely upon her assurance to him that she had. In fact, such representation proved to be false as the wife does not controvert that the private investigator disclosed as the result of his investigation that she was continuing to have an affair with Father L. Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

While obtaining proof of the affair is not objectionable, what you do with it can be problematic. In Anonymous, the husband reluctantly turned over the video of his wife having an affair with the priest to the church-the church wished to investigate the scandalous allegations. But, if the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment his conduct according to the court could be considered harassment –“conduct which alarms or seriously annoys another person, and serves no legitimate purpose.”

In sum, it is permissible to obtain surveillance tapes to be used as evidence in court. The surveillance “evidence” cannot be used to simply to embarrass a party or to cause them, for instance, to lose their job without possible consequences.