2014.11.10, Daily Links

How to Keep an Inheritance During a Divorce (to the extent that you legally can) 

This article provides sound advice regarding what to do with an inheritance or even a large gift received by one spouse during a marriage.  In sum,

• Negotiate a Prenuptial (or Antenuptial) Agreement
• Save documentation regarding how you obtained the inheritance or gift, such as receipts or bank records indicating from whom, to whom, and how much
• NOTE:  Make sure, if possible, any checks indicate whether a large gift is to one spouse individually, or both spouses jointly.  Too often there are checks written to one spouse, later claimed by an adverse spouse to have been a joint gift to the marriage.  REMEMBER:  Get and save the documents NOW, because banks typically destroy data after 7 or so years!  Evidence of your separate property claim may not exist in the future!
• Maintain Separate Accounts
• This means keep your inheritance or gift from other money which could be considered marital property.  Mixing separate property, such as an inheritance or gift, is called commingling, and can entitle the other spouse to a large portion of what was formerly separate property.
• Rely on Trusts
• Keep Titles in One Name
• This means do not open accounts in joint name and put the inheritance or gift in it, or use the inheritance or gift to purchase property titled in joint name.  Donative intent will be presumed and the property will become marital in nature.  This is called transmutation.

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Can I Get Attorneys and Experts Fees?

QUESTION:  CAN I GET THE OTHER SIDE TO PAY FOR MY ATTORNEY'S FEES?

In the United States, we follow what is commonly referred to as the "American Rule": that a "prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyseka Pipeline Services Co. v. Wilderness Society, 421 U.S. 240, 247 (1975).  Accordingly, it is the rule in New York that "a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule.” No. 1 Funding Center, Inc. v. H & G Operating Corp., 49 A.D.3d 908, 911 (3d Dept. 2008) (internal citations omitted).  Thus, unless there is a statute or rule which authorizes an order of payment of attorneys and experts' fees, such cannot be ordered without consent of the adverse party.  So, without an applicable statute, good luck getting an adverse party to volunteer to pay their own counsel fees, as well as yours.

Fortunately, the Legislature has enacted many statutes which authorize awards of attorneys and experts' fees in matrimonial and family law proceedings.  This was meant to reflect the reality that there is often an income disparity between parents and spouses, and that the "monied" litigant should not be able wear down or financially punish the opposition by recalcitrance, or by prolonging the litigation. Prichep v. Prichep, 52 A.D.2d 61, 65 (2d Dept. 2008).  Simply put: a parent or spouse "shall not be permitted to control [the] litigation by controlling the purse-strings." Darby v. Darby, 953 N.Y.S.2d 549 (Sup. Ct., Kings Cty., 2012). 

Counsel and expert's fees can be requested in, including, but not necessarily limited to:

• Most matrimonial proceedings, including an action for divorce - and the "less monied" spouse is presumptively entitled to them. DRL § 237(a);
• Proceedings to enforce, modify, or annul an order arising out of a matrimonial proceeding - and the "less monied" spouse is presumptively entitled to them, and where a court finds that an adverse party willfully failed to obey an order of support or maintenance, or distributive award, the court shall order them. DRL §§ 237(b), 237(c), 238;
• Family Court support proceedings to obtain, enforce, or modify an order of support - and where a court finds that an adverse party willfully failed to obey an order of support, the court shall order them. FCA § 438;
• Family Court custody proceedings. FCA § 651; DRL § 237(b); and
• Family Court family offense proceedings. FCA § 841(d); FCA § 842(f).

It should be noted that when the proceeding is brought by someone other than a spouse, former spouse, or parent of the child, the statutes may not necessarily allow for that person to seek fees.  Each individual statute will have to be analyzed to determine whether a party has standing to request them.

There is also law that provides that, where an adverse party fails to provide adequate disclosure, an order of counsel fees may be appropriate.

Finally, a court may order counsel fees to sanction "frivolous conduct" by a party during the proceeding. 22 NYCRR 130-1.1.  Conduct is frivolous if it:

• is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;
• is undertaken primarily to delay or prolong the resolution of the litigiation, or to harass or maliciously injure another; or
• asserts material factual statements that are false.

Id.  Entertainingly, frivolous claims of frivolous conduct are, in and of themselves, frivolous conduct! 

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

How Much is New York Child Support? When Does Child Support End in New York?

QUESTION:  HOW MUCH IS CHILD SUPPORT?

Years ago, the New York Legislature passed the Child Support Standards Act ("CSSA") to add consistency to awards of child support.  The CSSA sets forth a formula for calculating orders of child support. DRL § 236-B(7); DRL § 240; FCA § 413.  However, there are several components of a support order and it can become fairly complex.

I.  Basic Child Support

A.  Purpose

The purpose of basic child support is to provide for the child's basic needs, such as food, clothing, and shelter.  Lenigan v. Lenigan, 159 A.D.2d 108, 111 (4th Dept. 1990).

Basic child support shall be paid by the primary custodial parent to the non-custodial parent.  The primary custodial parent is the parent with whom the child spends more time with. DRL § 236-B(7); DRL § 240(1-b); FCA § 413.  Traditionally, this is determined by the number of nights that the child spends with each parent. 

Basic child support is primarily based upon the income of the parents.  The statute sets forth a mathematical formula to determine the presumptively correct amount of basic child support.  The parties can agree to or a court can order a deviation from the presumptively correct amount based upon the circumstances of the case.

B.  Combined Parental Income Income

To calculate basic child support, we must first identify each parent's gross income.  

The statute requires the addition and subtraction of many different types of income.  All of the additions and subtractions can be found on Steps I, II, & III of the New York Child Support Worksheet.  However, to come up with a very rough estimate for most cases, take the parent's adjusted gross income on their most recent income tax return, or the number in Box 5 of their most recent W-2 forms, and subtract the amount of FICA (i.e., medicaid and social security tax) actually paid by the parent.  If you are having trouble determining how much FICA was owed and presumably paid, MoneyChimp.com provides a reliable and easy to use calculator.

Example: In 2013, John earned $60,000 a year from his employer; had $20,000 of profit in self-employment income; and he received $10,000 in disability pension payments from Veterans Affairs.  Calculate John's gross income for child support purposes.  First, calculate the FICA paid by John on the $60,000 ($4,410). Then subtract that amount from the $60,000.  That equals $55,590.  Then, calculate the FICA paid by John on the $20,000 ($2,826).  Then subtract that amount from the $20,000.  That equals $17,174.  Remember: the amount of FICA owed by an employed person is different the amount paid by a self-employed person.  Next, simply add the $10,000, because FICA is not paid on disability pension payments from Veterans Affairs.  Finally, add together all three components of John's income.  Thus, John's gross income, for child support purposes, is $82,764.

If the non-custodial parent's income is less than the amount designated under the New York Self-Support Reserve (2014: $15,755) or Poverty  Guidelines (2014: $11,670), or the presumptive amount will reduce the non-custodial parent;s income below the Reserve or the Guidelines, then the child support obligation will be substantially limited based upon his or her income.

Now, we add the gross incomes for both parents.  This total amount is called the "Combined Parental Income."  We also determine the "pro rata share" for each parent based upon how much they each contribute to the Combined Parental Income.  The pro rata share is calculated by dividing one parent's gross income by the Combined Parental Income.

Example:  John has a gross income is $82,764 and Mary, the custodial parent, has a gross income of $37,236. Calculate the Combined Parental Income, John's pro rata share, and Mary's pro rata share.  John's gross income ($82,764) plus Mary's gross income ($37,236) equals a Combined Parental Income of $120,000.  John's pro rata share is then calculated by dividing $82,764 against $120,000 for a pro rata share of 68.97%.  Mary's pro rata share is then calculated by dividing $37,236 against $120,000 for a pro rata share of 31.03%. 

C. Applying the Child Support Percentages and the Circumstances of the Parties

Next, we calculate how much child support is owed on the Combined Parental Income, but only up to the Statutory Cap (2014: $141,000). 

The EASY way to do this is by taking the gross incomes calculated above and putting them into Box 1 of this easy-to-us Support Calculator, choose the number of children that the non-custodial parent will be providing support for, and hit Calculate.  If the non-custodial parent is also going to be paying maintenance, be careful with this, as the non-custodial may or may not be entitled to an adjustment of his gross income based on those maintenance payments.

To calculate it by long hand, take the Combined Parental Income (but only up to $141,000) and multiply it by the applicable Child Support Percentages (1 child in the care of the custodial parent: 17%, 2 children: 25%, 3 children: 29%, 4 children: 31%, 5 or more children: 35% or more).  That result is called the "Combined Child Support Obligation."  This is how much New York presumes it will take both parents, combined, to raise the child(ren) each year.  From there, divide the Combined Child Support Obligation based upon each parent's pro rata share.  This results in the "presumptively correct amount of basic child support" to be paid by the non-custodial parent.  

Example:  John and Mary's Combined Parental Income is $120,000.  John's pro rata share is 69%.  Mary and John have two children together.  Mary is the primary custodial parent for all three children. Calculate John's basic child support obligation.  First, multiply the Combined Parental Income ($120,000) by the applicable Child Support Percentage (.25) to obtain a Combined Child Support Obligation of $30,000.  Then, multiply the Combined Child Support Obligation ($30,000) by John's pro rata share (.6897).  John's basic child support obligation, is $20,961.00 per year.

The Court can then "deviate" from the presumptive amount based upon the circumstances of the case.  For example, it can be argued that a non-custodial parent should pass less basic child support because:

• the non-custodial parent provides all transportation for the child, or 
• the child resides with the non-custodial parent 49% of the time, or
• the non-custodial parent pays a substantial amount in union fees, dues, or student loans, or
• the non-custodial parent provide for the child's cell phone.

For all income beyond the Statutory Cap (2014: $141,000), the Court will either apply the Child Support Percentages or it will determine how much is fair and appropriate under the circumstances, or a combination of both. Cassano v. Cassano, 85 N.Y.2d 649, 653 (N.Y. 1995); Marcklinger v. Liebert, 88 A.D.3d 1114, 1115.  

In determining how much is fair and appropriate, the Court will look to, amongst other things, the child's actual, reasonable needs. Gluckman v. Qua, 253 A.D.2d 267, 271-72 (3d Dept. 1999) (internal citations omitted); Anonymous v. Anonymous, 222 A.D.2d 305, 306 (1st Dept. 1995) (“as the combined parental incomes exceeded [the statutory cap], the court properly determined child support based on the children's ‘actual reasonable needs’”); Matter of Brim v Combs, 25 A.D.3d 691, 693 (2d Dept. 2006)

To find out how much it would be simply applying the Percentages, you can, again, use this Support Calculator, as discussed above.

II.  Health Insurance & Cash Medical Support

Every order of support must ensure that the subject children are covered by health insurance.  There are many rules in place to determine which parent shall provide the health insurance coverage; however, whichever parent is providing the health insurance, if that parent is incurring costs in providing the health insurance, then they are entitled to a credit added to or subtracted from the presumptive amount of basic child support called "Cash Medical Support."  This credit is in the amount it costs for the parent to provide health insurance for the children, presumptively multiplied by the other parent's pro rata share.

Typically, to calculate the cost of providing insurance for the children when a family plan is utilized, take the cost of the family plan and subtract it from the cost of the single plan.  Any employer's human resources representative should be easily able to provide the costs for the available health insurance plans. DRL § 240(1-b)(c)(5); FCA § 413(1)(c)(5).

Example:  John owes Mary basic child support.  John has health insurance coverage available to him and the children through his employer.  Mary does not.  The family plan costs $1,250 per year.  The single plan costs $250 per year.  John's pro rata share is 69%.  Mary's pro rata share is 31%.  Calculate the Cash Medical Support and how this will affect John's basic child support obligation.  The family plan ($1,250) minus the single plan ($250) equals Cash Medical Support in the amount of $1,000 per year.  John's share of the Cash Medical Support is determined by multiplying his pro rata share (.69) by the amount of Cash Medical Support ($1,000).  Thus, John is responsible for providing an additional $690 a year as Cash Medical Support, and he will, just by paying the $1,000 premiums.  However, Mary's share of the Cash Medical Support is $310 (.31 x $1,000).  Mary will need to somehow reimburse John.  Therefore, John's basic child support obligation should be reduced by $310 to credit him for Mary's share of Cash Medical Support that he is providing. 

III.  Unreimbursed Medical Expenses

Kids tend to have many health related expenses.  They get sick, they need contact lenses, they want braces, etc.  They just can't help themselves.  In the process, they cost parents a great deal of money.  Accordingly, it is only fair that these expenses shall be split divided between the parents, if reasonable.  Typically, the expenses are split based upon the parent's pro rata shares. DRL § 240(1-b)(c)(5(v)); FCA § 413(1)(c)(5)(v).

Practice Tip:  Do not get lazy when drafting this provision an agreement.  Clearly delineate what expenses will or will not be included.  Will orthodontic work be included?  How about contact lenses?  

IV.  Work & Education-Related Child Care Expenses

Where a custodial parent is working or is receiving education or training which will lead to employment, and incurs child care expenses as a result, a court shall also order reasonable child care expenses to be divided between the parties, presumptively based upon their pro rata shares. DRL § 240(1-b)(c)(4); FCA § 413(1)(c)(4).

Example: Mary and John are the parent's of two young children.  Mary is the custodial parent.  John is the non-custodial parent.  Mary's pro rata share is 69%. John's pro rata share is 31%.  Mary works 8:30 a.m. to 5:30 p.m.  She requires a babysitter to pick up and watch the children after school from 3:00 to 5:30 p.m., Monday through Friday.  This costs her $10,000 per year.  Determine how will this effect John's child support obligation.  The $10,000 expense, if and only if it is reasonable, is an Education-Related Child Care expense to be divided between the parents.  Mary's share of the Work Related Child Care Expense is determined by multiplying her pro rata share (.31) by the amount of the expense ($10,000).  Thus, Mary is responsible for providing an additional $3,100 a year as a Work-Related Child Care Expense, and she will, just by paying the babysitter.  However, John's share of the Expense is $6,900 (.69 x $10,000).  John will need to somehow reimburse Mary.  Therefore, John will be required to pay an additional $6,900 per year to Mary for Work-Related Child Care Expenses.

IV.  Seeking Work Related Child Care Expenses

As discussed above, a custodial parent who is working and incurs reasonable child care expenses as a result is entitled to contribution from the other parent.  The same thing applies to those custodial parents who are seeking work and incur reasonable child care expense; HOWEVER, this is entirely within the discretion of the court, i.e., it is not mandatory.  The amount each parent contributes shall be in a manner determined by the court.  DRL § 240(1-b)(c)(6); FCA § 413(1)(c)(6).

VI.  Educational Expenses

A court may order educational expenses if the court determines that post-secondary, private, special, or enriched education for a child is appropriate.  The expenses shall be ordered "as justice requires," "having regard for the circumstances of the case and of the respective parties and in the best interests of the child." DRL § 240(1-b)(c)(7); FCA § 413(1)(c)(7).  Courts tend to look at:

• The financial resources of the parents and child;
• Whether the child has shown an interest and proficiency in the relevant area of education; and
• Whether the non-custodial parent has been given the opportunity to be involved in the child's choice of school or education provider. 

The amount each parent contributes shall be in a manner determined by the court.

Many years ago, court ordered college expenses were a rare thing; however, today, they are much more common, especially if both parents themselves are well educated.  Despite this, other types of educational expense still tend be quite rare.  They are typically only ordered where the parents are relatively wealthy or the child has shown a high degree of proficiency in the skill area.

Example:  Mary and John's youngest son, Sam, is 16 years old.  Sam plans on going to college in two years.  John is a doctor.  Mary has her bachelors degree in social work.  Both have middle-class lifestyles.  Sam is also quite skilled in archery and hunting.  He has won many trophies and is quite skilled, but Sam is not really interested in continuing through college.  Mary petitions the Family Court for John to contribute towards Sam's college expenses and John cross-petitions for Mary to contribute to Sam's hunting related expenses.  Which education related expenses, if any, will be ordered?  As this is quite discretionary, it is much more a balancing of facts to determine what "justice requires."  Considering their levels of education and the availability of income, it seems likely that Mary and John will have to contribute to Sam's college education; however, considering Sam's lack of interest, hunting expenses are likely off the table.

Courts can put reasonable limitations on these expenses too.  For example, the court may place a "SUNY cap" on the expense, limiting the parents' contributions to the average tuition which would be required for the child to attend a State University of New York.  Courts may also require the child to maintain a certain grade point average or that the non-custodial parent be involved in the college selection process.

Note: if your child is 4 years old, do not expect college expenses to be mandated by a court.  You can still, however, get the other parent to agree to college expenses many years down the road.  

Practice Tip:  Again, do not get lazy or complacent when drafting this provision an agreement.  Clearly delineate what expenses will or will not be included.  If you leave something out, it will be presumed you intended it to be left out.  Consider whether you want any or all of these things included in the order: SAT classes, pre-college campus visit related expenses, tuition, room, board, fees, expenses related to involvement in sports, transportation expenses, books, laptops, and personal (spending) money.

VII.  When does New York child support end?

In New York, a parent's duty to support their child lasts until the child is emancipated. FCA § 413.  The child may be deemed emancipated by any number of events, including, not necessarily limited to:

• Reaching the age of twenty-one (21) years; 
• Marriage, even if void, voidable or annulled; 
• Death; 
• Entry into the armed forces of the United States or a United States Service Academy; 
• Becoming substantially self-supporting, although substantial self-support shall not involve part-time school year employment or full time employment during summer recess from school; or 
• Permanent residency away from the custodial parents.

Thus, in New York, child support will end, at the very latest, when the child turns 21 years old, unless the parent contractually obligates them-self to do so by expressly agreeing, in unmistakable terms, to pay child support past the child reaching the age of 21. Hoffman v. Hoffman, 122 A.D.2d 583 (4th Dept. 1986); Gray v. Pashkow, 173 A.D.2d 1100 (3d Dept. 1991).


If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.
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TOOLS:

New York Child Support Worksheet

MoneyChimp.com

Support Calculator

2014.11.02, Daily Articles

NEW PENALTIES FOR YOUNG AND NEW DRIVERS TEXTING WHILE DRIVING

A new law imposed yesterday imposes new penalties upon young and new drivers caught using hand held phones while operating a motor vehicle.  These drivers will face a 120-day license suspension and a second offense will lead to a year-long suspension.  More experienced drivers will now face additional fines for repeat offenses, in addition to the whopping 5 moving points on their license per violation.  

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DIVORCE HOTEL?

In 2011, Netherlands saw its first "Divorce Hotel."  In September 2014, Divorce Hotel has come to Saratoga Springs, New York.  The idea is to let married couples undergo divorce mediation, negotiating a separation or opting-out agreement while spending a "luxurious" two-day weekend away from home.  It has been described as less intimidating than a typical courtroom setting.  "It's eight hours a day of pretty hard work, pretty hard questions and answers and decisions that [divorcing couples] have to make."  But there is also champagne, massages, and bike trails.

There seems to be no mention whatsoever of attorneys being involved in the mediation.  The mediator is not an expert in the matrimonial law of the state in which the couple will be divorced, although the article does state that a local attorney was "contacted" to ensure compliance with state law.  Hopefully, that was a very long conversation.  An expert consultant for asset valuation or even for just exceedingly complicated areas of the law, such as military pensions, are not available.  

This seems like an exceedingly bad idea.  Mediation can be a fantastic process, but mediation also typically involves disclosure and an analysis of all issues prior to the mediation.  Also, breaks can be taken to sort out problems which may suddenly turn up.  There is no invisible ticking clock against which the mediator will undoubtedly be watching, as it is he or she who profits when they can boast another "successful" stay at the Divorce Hotel.  

Furthermore, New York matrimonial law is much different than, say, Colorado matrimonial law.  For example, degrees and celebrity status earned during the marriage is marital property in New York and California, but not in many, or any, other states.  The age of emancipation for child support purposes is 21 in New York, but in many other states, it is 18.

What happens when the mediator forgets to put into the agreement the statutorily required "presumptive child support amount"?  The entire agreement can become invalid and unenforceable as a matter of law.  What happens when it is realized that the mediator forgot to distribute a certain asset within the agreement, such as a bank account which one party "forgot" to disclose or the yearly child tax exemptions, which can be worth tens of thousands of dollars?  Probably absolutely nothing.  The non-titled spouse will lose, plain and simple, absent fraud, duress, unconscionability, or the like.

Mrs. Kathrine Robbins says that attorneys who criticize Divorce Hotel have an ulterior motive: "Of course, they don't want this to be the big thing because it's going to take business from them."  Mrs. Robbins and her (soon to be ex-) husband, Jonathan, "besides divorcing, biked, dined and drank champagne together" during their weekend.  They still live together in Colorado.  

I am glad that the process ended up working out for Mrs. Robbins; however, the possible problems and ethical issues at play here are undeniable, as further pointed out by Anju Jessani, an accredited professional mediator, and founder of New Jersey-based "Divorce with Dignity." Link. There are ways to have a quick and relatively affordable divorce.  It is a simple thing to draft an opting-out agreement with a couple who can agree on everything.  But this is seems like it can present major, unfixable problems for divorcing couples down the line.  

There are certain things that should never be rushed.  Marriage is one of them.  Divorce is another.  As the old adage says: "Haste makes waste."  ALWAYS consult with a local attorney before signing any document, whether it be drafted by your spouse or a mediator. 

Now, if only attorneys could accompany the clients at the luxurious Saratoga Springs resort...

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2014.11.01, Daily Articles

TENNESSEE ATTORNEY CENSORED FOR MISHANDLING DIVORCE

The number of attorneys who take matrimonial and family law cases without proper knowledge of the subject area is stunning.  Even more reprehensible are those who will take your case and neglect your case.  Oversight of this practice area is critical.  REMEMBER: If your attorney is not returning your phone calls, something is wrong.  Hopefully, censure is enough in this case:

""The Board of Professional Responsibility filed a “petition for discipline” against Long on June 13, 2013, which included two complaints of ethical misconduct.

According to the first complaint, [Fletcher] Long was hired to handle a divorce and child custody matter and failed to properly communicate with or advise his client about the objectives of the representation in a divorce matter.

Due to the lack of appropriate communication between Long and his client, the client’s divorce case was dismissed for lack of jurisdiction because Tennessee was not the proper forum to determine child custody and property issues, the release said.

According to the second complaint, a client hired Long to represent her in an appeal of a child custody matter from juvenile court. Long filed the appeal in the wrong court, it claimed, but the opposing party agreed to enter an Order for the purpose of filing a proper appeal. Long failed to enter the agreed order in a timely manner because it was not entered until a year later, the release said.

According to the release, Long’s actions violate the Rules of Professional Conduct, including competence, communication; fees, meritorious claims and contentions and misconduct.""

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OKLAHOMA IS REQUIRING THAT DIVORCING PARENTS TAKE CLASSES WHICH ENCOURAGE THEM TO RECONCILE WITH SPOUSE

Oklahoma has recently passed a new law requiring that divorcing spouses with underage children be required to take parenting education classes.   Topics will cover the effects divorce has on a child’s well-being," and will include "reconciliation as an option; the effects of family violence; potential child behaviors and emotional states and how to respond; and communication strategies to reduce conflict and foster cooperative parenting." TulsaWorld (emphasis added).

One of the stated purposes of the law is to lower the state's high divorce rates and make parents reconsider divorce.

This seems absolutely ripe for abuse.  Oklahoma should not be attempting to convince (force) people to stay together, whether it be by exertion of persuasion by trained social services employees or by economic means, i.e., the cost of the classes.  It is widely acknowledged and supported by many studies that a dysfunctional two parent household is by far more destructive upon a child than a functional one parent household.  If keeping miserable parents under one roof is the goal, then it comes at the cost of the children.  This portion of the legislation is misguided.

There also seem to be many more concerns with the law, one of which, is that "[t]he law also said both partners must get the certificate of completion to move forward with divorce proceedings." What if one parent refuses?  Can they prevent divorce?   There is even concern whether these classes will even be available on November 1, 2014!  OK-Divorce.com

While New York courts encourage and can order similar parenting classes to help parents learn how to raise their children in a post-divorce household, they are not required as a matter of law.  

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2014.10.30, Daily Articles

SPANISH JUDGE ORDERS FATHER TO PAY CHILD SUPPORT UNTIL DAUGHTER IS 31

The woman, 29 years old, is still in school.  Father petitioned for child support to end.  However, "the presiding judge decided the assistance would continue until the woman finished her studies in two years time, noting both Spain's poor economic situation and the fact that the father in the case was in a good economic situation..."

Despite the decision being described as "surprising, crazy...not normal....absurd," Father will still be required to pay unless successfully appealed.  If this was New York, in which the age of emancipation is 21, Father would most certainly not be able to get back those payments, even if successful on appeal.


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2014.10.28, Daily Articles

TIGER CHARITY DIRECTOR 'FABRICATED' DIVORCE CLAIMS AGAINST HUSBAND, JUDGE RULES

While every person deserves their day in court, it is terrifying to realize what some people decide to do with that day:

"Wife in a divorce action accused her husband of using money for the Save China’s Tigers charity as a personal piggy bank for him her, arguing that she was therefore entitled to a share of the £25 million assets. 'After a 25-day private hearing in the Family Division of the High Court, judge Sir Paul Coleridge sided with [husband], describing wife as a 'unreliable' liar who had 'become blinded by her desire for revenge.' He said this had led the 'very intelligent' 50-year-old estranged wife "to fabricate where she thinks it will assist her case'.  Ruling that there had been no improper use of funds, the judge also rejected the wife’s claims the charity was a 'sham or 'a money laundering operation'. His ruling means neither husband nor wife are entitled to any of the £25 million, which will instead be spent trying to save China’s endangered tigers."

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WHO TAKES THE CHILD TAX EXEMPTIONS WHEN THE DIVORCE DECREE IS SILENT

QUESTION:

"On my divorce decree (that was changed from what we mediated) stated that he was allowed to claim the children until they turned 18 and that's when support also ends.  My daughter turned 18 on May 26, 2013, so I claimed her.  She lives with me and always has.  He is trying to claim her as well.  Who will the IRS choose in this type of situation?   The letter states that if I feel I qualify, do nothing."

 ANSWER: 

"The IRS will generally follow tax law rather than the divorce decree. For divorced or separated parents or parents who live apart, the custodial parent, if eligible, or other eligible person who the child lived with for more than half the year, can claim head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, and the earned income credit. The non-custodial parent, if allowed by divorce decree or consent of the custodial parent on form 8332 or similar signed statement, can claim the dependency exemption and child tax credit. For post-2008 divorce decrees or agreements, form 8332 or similar signed statement is required. The child tax benefits cannot be split any other way.

You should do what the letter from the IRS asks you to do."

However, as one commenter astutely points out:

"There is another rule that might be in play in this situation if the age at which a child becomes an adult (emancipated child) is 18 in your state, as it is in most states. (in some states the age is different).

See IRS Pub 17 (http://www.irs.gov/publications/p17/ch03.html#en_US_2013_publink1000170876) examples 5 and 6 which basically say:

"Example 5—child emancipated in May.  -- When your son turned age 18 in May 2013, he became emancipated under the law of the state where he lives. As a result, he is not considered in the custody of his parents for more than half of the year. The special rule for children of divorced or separated parents does not apply. "

In other words, the rule that allows a parent that does not live with the child (the special rule for divorced or separated parents) to claim the exemption, ends when the child becomes an adult.  The concept of "custody" does not apply to an adult.   In order to claim the exemption under the special rule, the child must have been in the custody of at least one parent more than 1/2 the year.  Since the child turned 18 in May, the child was in the parents custody, less than 1/2 the year.

So, even with a signed 8332 form (or other document), the parent that did not physically live with the child more then 1/2 the year cannot claim the child if the child became an adult in May.   Only the parent where the child actually lived more than 1/2 the year can claim the dependent and all the benefits, they cannot be split."

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