LegalMatch: Family Law

Unmarried Couples Receive Major Tax Incentive to Stay Unmarried

You know the saying: first comes love, then comes marriage, but now it seems the federal tax code favors unmarried partners when it comes to claiming a home mortgage interest deduction. Perhaps marriage will be put on hold in light of the little known tax benefit unmarried couples will now receive.

Pursuant to Section 163 of the Internal Revenue Code, taxpayers are permitted to write-off a certain amount of interest paid. A write-off is a deduction in the value of earnings by the amount of an expense or loss. In laymen’s terms, write-offs reduce the amount of taxable income you have. Let’s say you make $100,000 a year and you have $10,000 in write-offs. In this scenario, you would only be taxed on $90,000 in income, not the full $100,000.

The deduction is limited to interest paid on $1 million of mortgage debt and $100,000 of home equity debt. You can combine your deductions on your primary and secondary home for up to $1.1 million dollars as a single person, but once you get married, the law limits the mortgage deductions to $500,000 in acquisition indebtedness and $50,000 in home equity indebtedness. In other words, you’re only allowed to deduct half of what you could as an unmarried person. If, on the other hand, you co-own with your partner and both pay the mortgage payments, you can write-off $1.1 million each, for a total of up to $2.2 million!

What are Property Deductions?

The most common tax deductions for property relate to home ownership. Typical tax deductions include property taxes, mortgage interest and mortgage insurance premiums from your income. If you live in a condominium with HOA fees, the fees are not deductible because they are considered an assessment by a private entity. Taxpayers are allowed to itemize their deductions on the federal Schedule A. These generally result in lowering the taxable income.

How Can Property Deductions be Split Amongst Unmarried Couples?

Unmarried couples who jointly own property are entitled to deduct the amount of mortgage interest and taxes paid for up to $2.2 million, or $1.1 million each. In the past, the Internal Revenue Service (“IRS”) has not allowed such large tax deductions and only allowed a write-off interest of $1.1 million among unmarried couples. However, in 2012, a California couple that jointly owned two expensive houses with big mortgages argued each person should be entitled to the full $1.1 million for allowable deductions. The result was that unmarried co-owners could deduct up to $2.2 million.

While this is a huge tax deduction, it is mostly reserved for people who have mortgage debt in excess of $1.1 million with jumbo loans. Jumbo loans are loans that are bigger than normal and it is a way to buy a high-priced or luxury home. They typically have higher interest rates and larger down payment requirements, although they’re available as fixed-rate or adjustable-rate loans.

It is unclear how many taxpayers would actually qualify for this tax deduction. A recent Redfin survey found that 2,021 millennials have postponed or will postpone a wedding or honeymoon to buy a home. However, most millennials can’t afford to buy a home with a large downpayment that is so expensive the mortgage debt is in excess of $1.1 million, meaning the purchase price is over $1.1 million.

Some tax experts believe the number is quite high. Single professionals with jumbo mortgages include individuals with high-paying jobs, such as doctors, lawyers, business executives, investors, and recently divorced people.

So how does this tax deduction affect you? If you’re married, it doesn’t. If you’re unmarried and own a property by yourself, it also doesn’t impact you. But if you jointly own a property with your significant other, are unmarried, and have a mortgage debt of over $1.1 million dollars, then you can take advantage of this huge tax break.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

Do Our Family Courts Practice Institutional Sexism Towards Men?

Institutional sexism is no new concept. One place we might not expect to see it is in the family court system. Unfortunately, it’s prevalent in our courts, even if it’s unintentional and we see it most often negatively impacting men in child custody arrangements and alimony awards.

Historically, family structures were different than they are now—women traditionally stayed at home with children, while men traditionally went to work. It was only natural the family court system developed in a more favorable way towards women when it came to child custody and financial disputes. The system is lagging to catch up to the way family dynamics have changed over the years. 

Many states are trying to fix this issue by passing equal parenting time laws and with alimony reform.  Florida recently tried to pass, albeit unsuccessfully, a bill that would both reform current child custody laws to a shared parenting plan and nix permanent alimony.  At least 20 states in total have considered passing equal parenting time laws, but lawmakers don’t quite seem ready for such a change and we’ve got a long way to go. 

Child Custody Rights are Often Biased

Even though fathers’ rights are gradually progressing, there’s still a presumption that mothers are the better caregivers and it’s most often the father that gets gipped out of time with their children. Roughly 83% of mothers receive custody of their children over fathers in a divorce.  On top of that, fathers are statistically awarded less child support than mothers in the cases when they do get more custody. Recent studies suggest that unequal parenting time isn’t in the best interest of the child—so it’s not just fathers that are harmed by this bias.

Children living with both parents are statistically less stressed and fare better, emotionally and behaviorally, than those living with primarily one parent. Increased time with each of a child’s parents promotes strong bonds and gives children access to more resources, including social circles, a larger family structure, and, of course, financial and material goods.  Opponents of shared parenting plans suggest that shared parenting plans significantly cut down the amount of child support received, but when a child is spending more time with each parent, then the expenses will inevitably be split more evenly. 

Men Pay More Alimony

It doesn’t just come in the form of child custody awards either. Roughly 400,00 people in the U.S. receive some form of spousal maintenance, or alimony and only 3% were men.  Yet, if you consider 40% of households are headed by female breadwinners, it definitely suggests there’s a problem when men eligible to receive alimony just aren’t getting it. 

When it comes to spousal support, the attitude towards men is usually to buck up and get a job and that can sometimes even come from a judge. It’s not unheard of to see cases where the female is a high-earning executive while the male is the stay-at-home father taking care of the kids and, upon divorce, the father only gets a 6-month award of support when, if the situation were reversed, the mother would have easily been awarded years of alimony before being cut off.

On top of the bias towards men receiving support, permanent alimony still exists in at least 7 states throughout the U.S.—New Jersey, Oregon, Vermont, Connecticut, North Carolina, West Virginia, and Florida. That’s permanent alimony, not just an alimony award for an extended period of time! These awards in permanent-alimony states often go on even if the woman remarries. Again, it comes down to traditional gender roles and plain sexism, whether it comes from the courts or the laws in place that the courts are required to follow.  

The Court System Isn’t Entirely to Blame

At least 51% of custody arrangements are agreed upon between parents without the aid of the court. But, how much of that agreement comes from the threat of a custody battle in court?  Although a good portion of fathers may make the decision on their own, often times a settlement agreement is reached only to avoid a possibly worse custody arrangement that the law give the judge the power to hand down.

Although many men eligible for spousal support turn down the option simply on macho pride and a sense of own financial freedom, consider the father that turns down a possible alimony award he’s entitled to in order to smooth over a custody dispute.  That’s not to say it’s their fault either because the bigger issue comes from the actual laws themselves.  Even if you have a completely unbiased judge, the judge can only do what the law of their locality allows them to do.

Shouldn’t we be asking a change to come from legislation rather than solely from the court system? These problems aren’t entirely the result of the court system, it’s just a result of how our society has viewed gender roles in the past and those stuck in the biases of that tradition.  A change needs to come from legislation first before the court system can completely catch up.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Why Is Polygamy Illegal?

In many cultures throughout the world, the practice of having more than one spouse is common. In Muslim countries in particular, bigamy is accepted and embraced as normal. One quarter of sovereign states throughout the globe permit multiple spouses; however, these are all related to legalizing one man to have multiple wives. One woman having multiple husbands is illegal in every country in the world.

In the United States, polygamy is illegal, but polyamory is not. Polygamy was made illegal in July 1962 with the passing of the Morrill Anti-Bigamy Act. This made polygamy a misdemeanor. More than 20 years later, the Edmunds Act made polygamy a felony. While people can live with and have as many domestic and sexual partners as they like, only one spouse is recognized as legal in the eyes of the law.

Polyamory is the practice of having more than one close intimate sexual or romantic partner. Polyamory is distinguished from cheating because each polyamorous partner has full knowledge of all the other partners, and each partner gives consent to the others to permit this practice of sexual multiplicity.

While same sex marriage was debated among Americans, many people made comparisons between same sex marriage and polyamorous marriage. Opposition to same-sex marriage reasoned that if it was permissible to change the definition of marriage from a legal union between a man and a woman to a legal union between two men or between two women, this would open the door for other kinds of legal unions, including those between multiple people.

In America, some religions claim that polygamy is part of their religious practice. Mormons in particular were well known for having multiple spouses for each husband. Utah’s ban on polygamy was challenged in 2013 by a man who wanted to legally call each of his multiple partners his wives in the eyes of the law. Although the courts refused to legally recognize the marriages, the law criminalizing polygamy was overturned.

In the Supreme Court decision on this case, a judge compared polyamorous cohabitation to sodomy. From a legal perspective, although sodomy may not technically be legal, the judge wrote that it was not up to authorities to enforce such restrictions. The judge compared sodomy to the practice of multiple sexual partners: the state can’t punish men or women for this practice. This may be partly due to simple logistical reasons. It would be more than the police could possibly enforce.

There are moral and religious arguments against bigamy customs. However, from a legal perspective, most of the country’s laws about family, taxes, estates, and spousal privileges are dependent on the concept of pair-bonding. Changing laws regarding how many spouses one can have would require changing laws in many sectors. Similar to enforcement problems, this would create an overhaul of the legal system that is not likely to be possible in the foreseeable future.

Authored by Danielle Winterton, LegalMatch Legal Writer

Custody Battles between American and Foreign Parents

A Russian citizen, Olga Pimanova, was recently arrested in Cook County, Illinois on charges of civil contempt that stemmed from a custody battle between her and her ex-husband, Jorge Castillo, a U.S. citizen.

Pimanova reportedly arrived in the U.S. with her Russian-born infant, Arianna, where she soon after met Castillo. The couple married shortly after.  At some point at the end of their relationship, but prior to any decree of divorce, Pimanova left the country with Arianna.  Castillo filed for divorce, where he was found to be the father of Arianna and Pimanova was ordered to bring the child back to the states.

Pimenova returned to the U.S., but without her daughter and was immediately arrested upon landing in Chicago. Pimanova claims Castillo is not the child’s father and that she never received notice of the divorce filing. However, case activity from court records show that when Castillo filed for divorce, he provided notice of his petition via publication, presumably because he was unaware of her whereabouts. Although numerous publications were made regarding case status, it appears Pimanova never participated in the divorce proceedings until after the divorce was granted and Castillo was given custody rights.  

Conflicting laws between Countries

It’s not surprising Russian officials are upset about Pimanova’s arrest, as cross border disputes between the U.S. and Russia aren’t a new topic—Russia has recently passed laws (2012) banning all adoptions between Russian children and American parents.

In the U.S., notice via publication is appropriate in circumstances when no other alternative is available and the petitioning party has no known information about the responding party’s whereabouts. The Chicago court found Arianna to be Castillo’s daughter and as a result, awarded him custody rights.  With Russia’s attitude towards their young children being handed over to Americans, it begs the question of whose law controls here?

The Hague Convention

When jurisdictional disputes arise here in the U.S., we have what’s known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Act grants jurisdiction in child custody cases to whichever state is the child’s “home state.”  Unfortunately, this only applies to states within the United States, which means it doesn’t apply in foreign disputes. However, when a custody dispute arises and one parent decides to remove the child to another country, parents can invoke the protections under The Hague Convention, which applies the same basic principles as the UCCJEA. 

The Hague Convention is a treaty developed to provide a method for return of a child that was internationally abducted by a parent from one country to another. The treaty’s primary purpose is to preserve the status quo for the child, which means returning them to whatever country was their “habitual residence.” Although the treaty only applies to children under the age of 16, it’s meant to act as a deterrent for parents looking to cross international waters for the purpose of seeking a more sympathetic and favorable court.

Home State Advantages

The treaty doesn’t provide substantive custody rights, but deals primarily with procedural and jurisdictional aspects of judicial proceedings that must take place in order to return the child to their home country. Generally, wherever is considered the child’s home state is going to have controlling authority, but there’s a process that parents must go through in order to determine that home state advantage.

If there’s been a violation of custody rights, a parent must file with their own local court to invoke The Hague Convention. When a child is brought into the U.S. from another country, the case is handled here in the U.S. at the state or federal level—petitioners have the option to choose. If the child is taken from the U.S., a case would have to be filed and heard in the locality where the child was taken, which would require hiring a local attorney familiar with their country’s custody laws.

If both countries, the parent invoking the Convention and the country where the child is located, are signatories, the case will be heard and a parent must prove the child was a “habitual resident” of that country. In order to qualify as a “habitual resident,” a child needs to have lived primarily in that country prior to being removed. In determining habitual residency, courts will look to the shared intentions of the parents, the history of the child’s locations and residences, and the settled nature of the family prior to the removal/retention.  A parent must further prove that the child was wrongfully removed to another country.

The United States and Russia, among 92 others, are both on the list of signatory states party to the convention. Although Arianna was born in Russia, it appears she was primarily living in the U.S. prior to her removal. It will be interesting to see how Russia responds and if their actions will be contrary to the Hague Convention.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

How Will Divorce Affect My Retirement?

It depends on the outcome of a settlement agreement between you and your ex-spouse, but, yes, it definitely can. Laws vary between states, but just like any other property asset, retirement benefits are included within the chunk of marital property assets that can be divided according to state divorce laws. Retirement benefits can be awarded to a spouse to offset unequal property distribution or can be awarded to a spouse to cover child support payments.  

Most states will consider any money contributed into a retirement account prior to the date of marriage as separate property, but not every state does so.  States that don’t include pre-marital property will let the owning spouse keep the portion they earned and contributed to as their own.  Courts will then take the remaining portion and split between the spouses pursuant to the divorce, which means, even though a state may have equal distribution of property, the owner of the benefit could walk away with more than 50% of their retirement account balance.

You’ll need to be Familiar with the Process for Retirement

Typically, the most common types of retirement plans are IRAs, 401ks, and pension plans.  Federal guidelines dictate how to divide funds in 401(k) s, 403(b) s, and other similar plans, while state laws mandate how to divide IRAs and state pensions. Although any retirement asset can qualify as marital property, not every type of retirement account can be actually disbursed. 

Generally speaking, retirement benefits cannot be distributed to anyone other than the actual plan participant. The Employee Retirement Income Security Act (“ERISA”) allows exceptions to this rule via a Qualified Domestic Relations Order (“QDRO”).  A QDRO is basically just a court order instructing the applicable retirement plan to divvy up retirement benefits to someone other than the plan holder, i.e. the spouse.  This document requires multiple steps to be completed before submitting to a court for approval upon settlement of a divorce, so it’s important to discuss the specifics with a divorce attorney.   

An IRA is not subject to the rules under ERISA, does not need a QDRO for transfer, and most plans will have some mechanism available to transfer benefits pursuant to a divorce.

Tax Implications

Some retirement plans will allow a spouse to receive their benefit award pursuant to their normal retirement age rules or receive it via one lump sum payment. Tax implications will result immediately from a lump sum payment, but not all plans specify who is responsible to pay that tax, which means it needs to be negotiated by an attorney. This can often be a difference of thousands and thousands of dollars depending on the amount awarded.

What If My Spouse Handled All the Finances?

Discussing retirement planning with your spouse and keeping records of any retirement accounts is the smartest thing one can do when it comes to planning their future. If you don’t personally handle the finances in your household, the easiest and best thing to you can do is to ask questions and be aware of the accounts your spouse holds. It’s not as important to know the specific amount of a retirement plan as it is important to know that a plan exists. Any details regarding a retirement plan can be revealed in a divorce through the discovery process. 

Is There Anything I Can Do to Help During a Divorce?

The easiest thing you can do during a divorce is provide your attorney with any and all financial information you have access to, which includes retirement account statements. If you don’t have any, your attorney can help gather this information during the discovery process.  

Additionally, financial information unrelated to retirement is important to provide to your attorney because it can affect the amount of retirement benefit you are awarded as part of the divorce.  Different types of retirement accounts, for example, a defined contribution plan versus a defined benefit plan, have different values at the time of divorce. A defined contribution plan’s value is ascertainable at a more definite value than a defined benefit plan. The value of an account can heavily impact any award distributed at the end of a divorce, which, again, could mean a difference of thousands of dollars.  Depending on your financial situation as a whole, this can affect how your attorney will negotiate retirement benefits on your behalf.

Be Prepared For What Comes After

The rules regarding the different types of retirement plans vary from plan to plan and company to company. Even if you’re awarded a portion, or all, of an ex-spouse’s retirement plan, it may not be money that’s readily available.  Just the same as the owner of the policy must wait until they reach a certain age to withdraw retirement benefits, so must an ex-spouse who was awarded benefits in a divorce.

Regardless of the type of account, the process can be lengthy and an experienced family law attorney can help assist you in that process.  

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Mississippi Law Now Says You Can Say No to Gay Marriages

Mississippi has passed a religious freedom bill that stops any progression made in the LGBT community since the Supreme Court ruled in favor of gay marriages in Obergerfell v. Hodges.

The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both private and state employees to discriminate against those in the LGBT community. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergerfell. 

Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.

The Bill Is a Roundabout Way of Making it Legal To Discriminate Against LGBT

The beginning text of the bill states:

“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

It looks discriminatory, but the bill says the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs. The government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs. 

The bill isn’t necessarily promoting a ban on gay marriages so much as they are granting protection from governmental backlash to those that refuse to render services to the LGBT community. Regardless of how it’s worded, the application of the law will no doubt have an extremely negative and unfair impact on the LGBT community.

Law Will Be Unfairly Applied Regardless of Intent to Protect Religious Freedom

Below is a summary of how the bill will affect the LGBT community. Individuals/businesses will be able to do the following without governmental repercussions:

• Individuals, including government employees, can refuse to perform marriages, issue marriage licenses, decline accommodations, facilities, goods or privileges for the purpose of recognizing a gay marriage. This includes photography, videography, disc-jockey services, wedding planning, and cake services, among many others.  Pretty much anything you would need to plan a wedding is protected.
• Individuals can make employment decisions based on sexual orientation and gender identity, which includes decisions on whether to hire or terminate an employee.
• Individuals can refuse to sell, rent, or make other terms and conditions about occupying a dwelling or other housing based on sexual orientation and gender identity.
• Adoption agencies can refuse to place a child in your care based on sexual orientation or gender identity.
• Medical professionals can refuse services related to counseling, treatment, or surgeries related to sex reassignment or gender identity transition.
• Medical professionals can refuse to participate in fertility services for a gay couple. Legislature did include a stipulation that medical professionals cannot deny visitation, recognition of designated representatives for health care decision-making, or emergency medical treatment. How generous of them.
• Individuals and businesses can establish sex-specific standards concerning employees or students in how they groom themselves and dress themselves and can restrict access to bathrooms and locker rooms based upon sex. Essentially, an employer can refuse to allow a transgender individual to dress how they want or go in the restroom they identify with.

Drafters of the bill did include language that the government must take steps necessary to ensure that a marriage could be performed and not delayed due to one employee’s refusal to perform said services. If every government employee able to issue marriage licenses refuses due to their personal religious beliefs, then what? Delay would be inevitable.

Time Will Tell Whether the Bill Will Be Upheld

I’m sure the bill, and others like it, will inevitably be challenged all the way up to the Supreme Court. The Supreme Court will always protect religious freedom, but there has to be a line when it comes to discrimination.

Ever heard of the Federal Civil Rights Act? Sexual orientation isn’t specifically covered under the Act yet, but the federal EEOC does consider sexual orientation and gender identity protected classes and has recently filed federal lawsuits against private employers for sexual orientation discrimination. In light of recent rulings made by the Supreme Court, no doubt they will rule in favor of the LGBT community if a case makes its way up the chain.

Although the text of Mississippi’s bill itself may not be violating any rights, it may not survive an as-applied challenge. Even though the law only prohibits the government from taking governmental action against those that choose to discriminate, if you consider the fact that all government employees could essentially refuse to issue a marriage license because of this new law, then it’s in direct contradiction to Obergerfell. Don’t even get me started on the housing, employment and right to privacy issues that arise out of the bill.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

What Can You Do When a Spouse Hides Marital Assets?

They say divorce isn’t cheap. That’s especially true when spouses can’t agree on the value of the marital estate and one spouse believes the other is hiding assets. 

The Rybolovlev divorce gained notoriety when it was estimated to be the most expensive divorce in history. Ranked 14^th on Forbes’ richest men of Russia, Dmitri Rybolovlev’s marital estate was worth billions, but the extent of those billions became in question when his ex-wife accused him of concealing marital assets. The couple had been married for nearly 20 years and with their wealth came a complex network of offshore companies and trusts funneling Dmitri’s billions, making it extremely difficult to keep track of finances.

In December of 2008, Elena Rybolovlev filed for divorce in a Swiss court, where the couple lived. Under Swiss law, Elena was entitled to an equal division of the marital estate, but she claimed Dmitri was using tax havens to obscure real estate and other wealth, making it nearly impossible to determine the actual value of the estate. 

Spouses Get Away With Hiding Assets All the Time

Hiding assets isn’t uncommon and, for decades, spouses have sought the help of Mossack Fonseca & Co., a Panama based company that specializes in creating offshore accounts, to help them shield assets from their spouse. Dmitri hired Mossack to incorporate British Virgin Islands based company Xitrans Finance Ltd., which was essentially just a post office box front for a legitimate business. 

By January of 2009, Dmitri had used his shell company to move $650 million worth of art and furniture, consisting of Picassos, Van Goghs, Monets, and Louis XVI furniture made from some of Paris’ grandest furniture makers, out of Switzerland to Singapore where Elena couldn’t access them. In the midst of the divorce, the court froze the couples’ assets, but somehow Dmitri was able to purchase an $88 million NYC penthouse. Exactly how was Dmitri able to buy the penthouse?

According to the National Endowment for Financial Education, 58% of spouses hide assets from their partner. Here are some common ways spouses typically hide money:

• Transferring assets into a separate account or shell company,
• Transferring assets to a friend or family member (once it’s given to another person, it’s not technically part of the marital estate anymore),
• Overpaying the IRS to delay payments until after the divorce,
• Taking cash withdrawals on debit cards,
• Turning down promotions or raises until after a divorce is finalized,
• Delaying receipt of commissions until after a divorce is finalized,
• Forgetful memories about retirement accounts & stock options,
• Not billing clients in a timely manner, creating fake expenses for a self-run business, or adding family & friends to payroll and paying them for “consulting”,
• Spending money on real estate or material assets like expensive artwork.

Spouses that really want to hide money can get creative, which means the list of possibilities goes on. This begs the question: what can a spouse do if they believe the other spouse is hiding assets?

Getting down to the Nitty-Gritty

Getting involved in family finances and making yourself aware of the assets and debts is probably the best way to ensure you’re not blindsided. In the Rybolovlev case, Elena hired a professional tracker that specialized in finding offshore wealth; she was eventually awarded $600 million worth of the marital estate at the end of the day.  This can be expensive and those not involved in a high-stakes divorce still need remedies to protect themselves. 

Hiring an attorney that has experience uncovering hidden assets is your best bet. Your attorney will be able to dig deep into a spouse’s financials through the discovery process, which is the best way to get information in a divorce.  Discovery is an organized exchange of information between parties. Spouses, through their attorneys, will have the opportunity to ask for any information pertaining to the marital estate. 

Tax returns are one the best instruments to get a good look at a spouse’s financials in terms of earnings and investments, but taxes don’t always provide the truest financial picture, especially if from a business owner. Discovery answers are considered under oath, which means each spouse has a duty to disclose all information to the best of their knowledge. 

Lying about your financial state is illegal in a divorce case and doing so will put you in contempt of court. Penalties vary from state to state, but a deceitful spouse may be ordered to pay the other spouses attorney fees, ordered to pay fines, or, in serious cases, could end up in jail. 

Not only does lying ruin any credibility with a judge, but it may also work in the honest spouses favor. In 1999, a California court ruled that a wife violated the state’s asset disclosure laws by failing to mention she won 1.3 million in the California state lottery just 11 days before filing for divorce.  Well, guess what?  The judge awarded all the winnings to the husband because the wife acted out of fraud and malice.  Had the wife correctly disclosed her assets, the husband would have only been entitled to half her winnings. Bummer.  

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Will Florida Parents Get Equal Custody Rights?

A Florida bill that would give divorcing parents equal custody rights is on its way to Governor Rick Scott’s desk for approval. The new legislation would require judges to consider equal custody of children, while still allowing room for judicial discretion when equal parenting time is not in the child’s best interest.

Proponents of the bill believe taking custody concerns out of the mix will result in less fighting between the couples.

Senator Tom Lee, sponsor of the bill, stated an equal custody presumption would create “greater predictability and reliability” in custody cases. Further, Lee believes that because women are increasingly becoming the major breadwinners in families, a change in the law would “reduce litigation costs in the family law system.”

What Would the Bill Mean For Divorcing Parents?

For starters, the presumption would be equal custody rights. If divorcing parents cannot come to a custody agreement without the aid of the court, it means each parent would walk into that courtroom on equal ground.

It would be up to each party to present the facts of their case and then up to the judge to decide whether to deviate from the presumption of equal custody. Judges would have a list of 22 factors (20 of which are already in law) to be treated as guidelines when making a decision. The judge would have to put his or her reasoning in writing explaining why they are choosing to deviate from the presumption.

Sharing Custody Is a Positive

Too many times I’ve seen a parent just as capable as the other of parent get the shaft when it comes to custody. Although states are becoming more and more progressive towards father’s rights, it’s most often the father that gets gipped out of equal parenting time. Recent research suggests that this isn’t in the best interests of the child.

The Journal of Epidemiology & Community Health published a study that suggests children living with both parents are less stressed than children living with just one parent. The study examined national data of 150,000 12-15-year-old students and studied a number of health-related problems. The researchers looked at the children’s psychosomatic health problems, including sleep problems, difficulty concentrating, loss of appetite, headaches, stomachaches and feeling tense, sadness, and dizziness.

The study divided the children into 3 groups: nuclear families, shared-parenting families, and children that lived with only 1 parent. Of the 150,000 children, 69% of them lived in nuclear families, while 19% of the children lived with both parents, and 13% lived with only one parent. Children in the nuclear families reported the fewest psychosomatic problems, while the ones in the shared-parenting families reported significantly fewer problems than the children who lived with only one parent.

Everyday contact with both parents seems to be the key in determining a child’s stress factor. Not only does increased time with each parent promote strong bonds with both parents (rather than just one), but also the shared parenting approach gives the children access to more resources. Exposing children to parents’ social circles, families, and material goods makes a child less vulnerable and stressed.

Just imagine the financial implications of living with one parent. Yes, the custodial parent is likely receiving child support, but that’s never enough to cover all the actual expenses of raising a child. Putting a kid with one parent is essentially cutting their access to money in half. It’s not about giving the children money; it’s more about them reaping any benefits more money may provide. 

For example, when divorced parents are constantly fighting with each other over who pays for the child’s soccer equipment or prom dress, the child is going to be stressed anytime those types of money issues come up.

What’s the Downside?

Well, for starters, children can sometimes constantly go back and forth between homes in shared custody situations. This can cause children to have a hard time adjusting to a normal routine, especially for young children who prefer stability or a child with a disability.

Sometimes, shared or joint custody can lead to more arguments between the parents. Often times, important daily decisions need to be made which requires more frequent discussions between the parents and, let’s be honest, divorced couples don’t always see eye-to-eye on parenting issues, especially when personal emotions can get in the way.

If a couple is divorcing, it’s likely it’s because there are issues that cannot be resolved. It may be hard for some couples to move on with their own lives if they are in constant contact with the ex-spouse and this can create more stress for the child.

Shared Custody Arrangements Outweigh Any Negatives

Despite the negatives, shared custody arrangements are a great idea; better for the child and, ultimately, easier and better on the parents. Not only does each parent’s involvement play a role in the best interests of a child, but also taking custody arguments out of the mix would reduce litigation costs for the parents. The key in this type of legislation is maintaining judicial discretion in the cases that equal parenting is not in the best interests of the child.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Who’s in Charge of Paying Your Child’s Car Insurance After a Divorce?

Navigating through the ins-and-outs of a divorce can be tough. There are often expenses that arise that you may not have initially thought of—your child’s car insurance payment is one of them. Child support laws vary greatly by each state, so it’s important to check your own state’s guidelines when trying to determine which parent is in charge of covering a child’s car insurance. Some guidelines cover just the basic necessities, while others are a bit more detailed.

A basic child support payment does not typically cover things like extracurricular activities, college expenses, medical insurance and/or uninsured medical expenses, which are generally agreed upon within a settlement agreement. This includes car insurance.

Who Covers the Child’s Car Insurance Coverage?

Car insurance companies will generally require a parent to list their child on their insurance policy if that child is a licensed driver living in their home. In that case, the burden can often fall on the custodial parent (the parent with the most custody time). If the parents share joint custody, it’s typically whichever parent has the most custody time, or the parent that has the child the most during the school year. Usually, but not always, this is the parent receiving the child support. Some companies even require parents sharing joint custody to cover the child on both policies.

The parent required to list the child on their insurance may not always be the same parent in charge of paying for the car insurance. Again, states vary greatly, but car insurance is not typically covered within a basic child support order, which means you must negotiate it as part of a settlement agreement during the divorce.

Many Take the Mentality That Child Support Should Cover Everything

There’s a misconception that once the non-custodial parent pays the custodial parent child support, then the non-custodial parent no longer has to pay anything else for the child. Child support is not a one-time payment and you’re done.  It’s meant to cover basic necessities, such as food, shelter, clothing and other basic living expenses while the child is with the custodial parent. Unplanned or un-thought of expenses inevitably always come up.

Let’s be reasonable though. Parents can come to an agreement before the divorce is finalized. It doesn’t make sense to require the custodial parent receiving child support to carry the burden entirely by himself or herself. Think of all the other costs the parent has to use the money for: groceries, food, clothing, uninsured medical expenses, small incidentals, and many others.

Remember, child support is for the child, but that money can go towards providing a roof over your child’s head. So often times, a basic child support payment is not enough money to cover all the expenses of a child. This is why divorce is expensive!

Who Gets to Make the Decision About Driving?

Coming up with the money is typically the bigger issue, but at some point the parents have to decide whether their child should begin driving. What happens when one parent wants the child to drive and the other doesn’t?

Just as it is with adults, driving is considered a privilege and no child is “entitled” to drive. The decision will be entirely up to the parents.  Which means a judge typically won’t force a parent to pay for a child’s car insurance.

If an agreement truly can’t be reached, the parents can always request the court to intervene and settle the disagreement for them. Most courts don’t like being involved in small issues like this, so it’s best to come to an agreement between yourselves or with the help of your family law attorneys. If the issue is brought before the judge, it’s going to be on a case-by-case basis. 

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

SCOTUS Gives Full Faith and Credit to Same-Sex Adoption

The Alabama Supreme Court is on the losing end of a continuing fight against LGBT rights. After the Supreme Court ruled in favor of same-sex marriages, Chief Justice Roy Moore of the Alabama Supreme Court prohibited probate judges in Alabama from performing same-sex marriages. 

In another attempt to further quash any movement forward for LGBT rights, the Alabama Supreme Court recently refused to give full faith and credit to an out-of-state judgment allowing a same-sex partner to adopt her partner’s children.

Georgia Allowed Woman to Adopt Partner’s Children

E.L. is the biological mother of three children and V.L. was her same-sex partner who raised the children as a joint parent.  Wanting to give legal status to V.L., the couple rented a house in Georgia where they subsequently filed an adoption petition.  E.L. never relinquished her rights as the mother, but rather the petition asked V.L. to be a second parent to the children.  The Georgia court found that the couple had complied with all the requirements under Georgia law and allowed V.L. to adopt the children.

After a move to Alabama and 7 years of co-parenting the children, the couple split up. V.L. alleged the biological mother was denying her access to the children as a result of the breakup and subsequently filed a petition with an Alabama circuit court to register the Georgia adoption decree so she could exercise her parental rights.  After being transferred to a family court, the court ruled in favor of V.L. and awarded her visitation with the children.

The case was appealed all the way up to the Alabama Supreme Court, which ultimately ruled Georgia did not have proper jurisdiction under Georgia’s law to enter the adoption decree in the first place. In other words, the Alabama Supreme Court held that the courts were not required to give full faith and credit to the Georgia judgment and, therefore, refused to recognize the adoption and V.L.’s parental rights.

The U.S. Supreme Court got their hands on the case and reversed Alabama’s ruling, finding that Alabama must afford full faith and credit to the Georgia judgment. V.L.’s rights as an adoptive parent of the children were confirmed and her parental rights restored.

What is the Full Faith and Credit Clause?

Article IV, Section 1 of the U.S. Constitution is known as the Full Faith and Credit Clause and provides that “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.” Each state must recognize the judgments made by other state’s courts.

Additionally, a state may not inquire into the actual merits of another case or judge why another state made a particular judgment or decision. Further, it may not question the validity of the state’s legal principles applied to base the decision. 

The Exception to Full Faith and Credit

An exception applies. The state can inquire into jurisdictional issues on a limited basis. States are not required to afford full faith and credit to another state’s judgment if that judgment was not rendered under proper jurisdiction. 

Alabama was looking to the merits of the case, rather than jurisdictional issues. The Alabama Supreme Court improperly reasoned that Georgia lacked jurisdiction to order the adoption decree because they tried to interpret Georgia’s laws and how they applied to the original judgment. 

It didn’t matter why or how the Georgia court came to the ruling it did. It only mattered that the Georgia court had the proper jurisdiction to make the decision.

What Does This Mean For LGBT Issues Outside of Marriage?

The case is more about the Full Faith and Credit Clause of the U.S. Constitution than it is about same-sex adoptions or other LGBT issues. As LGBT issues continue to be at the forefront of issues in our country, those opposing any furtherance of LGBT rights will continue to fight the issue, especially cases like this where an out-of-state judgment clashes with their own laws and principles. 

Regardless, the ruling should still be considered a victory for the LGBT community because it will affect future LGBT decisions and how they are honored by other states. This case ensures states have to honor out-of-state judgments, including those judgments made in favor of LGBT rights. 

The U.S. Supreme Court made the distinction simple—courts only need to ask one question when determining whether to afford full faith and credit to an out-of-state judgment.

Now, Alabama is not only recognizing out-of-state adoption, but the Alabama Supreme Court has conceded and is now issuing same-sex marriage licenses.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law