What is a parenting plan

May 23, 2013 — Leave a comment

Recently, South Carolina Family Courts started requiring parents involved in contested child custody actions to prepare and present a parenting plan to the Court at hearings.  So what is a parenting plan?  Essentially, the parenting plan is each parent’s proposed plan that answers the questions about who they propose would have custody (father, mother, or some form of joint custody), how decisions will be made for the children going forward, and a placement plan that describes the time that the children will spend with each parent.

Attached is a PDF version of the parenting plan used in South Carolina Family Courts.

In Child Custody
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What Impact will Adultery Have?

May 21, 2013 — Leave a comment

When consulting with potential clients about their divorce, I am often asked the following hypothetical question:

I would like to start dating again.  What impact will it have on my case if I start seeing someone?

In other words, what impact will your spouse proving you have had an adulterous relationship have on your divorce case?

1. Divorce

The first place you should look is at the grounds for divorce.  SC Code §20-3-10(1) allows for a divorce on the grounds for adultery.  I wrote about the proof required for establishing a case of adultery in a previous post.  By establishing the proof necessary for adultery, your spouse can divorce you without having to live separate and apart from you for the no fault 12 month period.

Most of the potential clients I meet with wouldn’t have a problem with this aspect of adultery because it means they are potentially getting their divorce sooner and then they can openly or legally move on with their new relationship.

2. Alimony

The second major issue deals with alimony.  SC Code §20-3-130(C) sets out a list of factors that the family court judge must consider and weigh when determining whether to award alimony to one of the spouses in the case.  Subsection 10 of that section states that, “marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage[.]“  Adultery is considered marital misconduct and fault so it can be a factor weighed against you if your spouse is seeking alimony.

On the other hand, if you are seeking alimony, you may barred from receiving alimony due to your adulterous relationship.  See SC Code §20-3-130(A), “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.”

3. Property/Debt Division

The third area to consider is the area of property and debt division.  SC Code §20-3-620(B)(2) states, “marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement; or
(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties[.]”

So depending on when the adultery occurred and the impact on the financial or economic circumstances of the parties, there could be an adjustment made to the equitable apportionment of marital assets and debts.

In Alimony, Divorce, Financial Issues in Marriage, Property Division
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Ten Facts about Adoption-Related Tax Savings

April 12, 2013 — Leave a comment

Adoptions are an exciting time in a family, but they can also be extremely expensive.  If you recently adopted or attempted to adopt a child, you may be eligible for a tax credit. You may also be eligible to exclude some of your income from tax. The IRS has recently released a list of 10 Facts about Adoption-related expenses and how they can impact your tax bottom line.

1. The maximum adoption tax credit and exclusion for 2012 is $12,650 per eligible child.

2. To be eligible, a child must generally be under 18 years old. There is an exception to this rule for children who are physically or mentally unable to care for themselves.

3. For 2012, the tax credit is nonrefundable. This means that, while the credit may reduce your tax to zero, you cannot receive any additional amount in the form of a refund.

4. If your credit exceeds your tax, you may be able to carryforward the unused credit. This means that if you have an unused credit amount in 2012, you can use it to reduce your taxes for 2013. You can carryover an unused credit for up to five years or until you fully use the credit, whichever comes first.

5. Use Form 8839, Qualified Adoption Expenses, to claim the adoption credit and exclusion. Although you cannot file your tax return with Form 8839 electronically, the IRS encourages you to use e-file software to prepare your return. E-file makes tax preparation easier and accurate. You can then print and mail your paper federal tax return to the IRS.

6. Adoption expenses must directly relate to the legal adoption of the child and they must be reasonable and necessary. Expenses that qualify include adoption fees, court costs, attorney fees and travel costs.

7. If you adopted an eligible U.S. child with special needs and the adoption is final, a special rule applies. You may be able to take the tax credit even if you did not pay any qualified adoption expenses. See the instructions for Form 8839 for more information about this rule.

8. If your employer has a written qualified adoption assistance program, you may be eligible to exclude some of your income from tax.

9. Depending on the adoption’s cost, you may be able to claim both the tax credit and the exclusion. However, you cannot claim both a credit and exclusion for the same expenses. This rule prevents you from claiming both tax benefits for the same expense.

10. The credit and exclusion are subject to income limitations. The limits may reduce or eliminate the amount you can claim depending on your income.

In Adoptions
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What does Twitter Archive mean to your divorce or custody case?

March 11, 2013 — Leave a comment

Screenshot_3_11_13_1_46_PMWhat will Twitter Archive mean to your case?  Social media evidence has come into use greatly over the last couple of years.  And, why not?  People record and publish their every move throughout the day – the mundane and of course the exciting highlights.

But, many people fail to use common sense when they post to social media.  They forget that they are embroiled in a highly contested custody case or a divorce matter where they have been accused of being a drunk or having an affair.

I’ve written about social media use in trial before (here and here) so you can find out how these things can be used against you, but the saving grace before was that it was difficult to get companies like Twitter and Facebook to comply with subpoenas to provide all of your tweets or status updates or things were only archived for public viewing for a short period of time.  However, now Twitter Archive allows each individual member of twitter to download their entire tweet history back to when they joined Twitter.  So as part of a Request to Produce a copy of your Twitter Archive could be requested by your spouse and every tweet you sent out could be used against you in your case.

In Divorce
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Who Gets to Claim the Children on Taxes?

February 26, 2013 — Leave a comment

In a custody case, one of the issues involved in many negotiations is who will get to claim the children as dependents on their income tax returns.  This is called the dependency exemption.  Children can be quite valuable when it comes to filing taxes and how much a person will owe or receive back as a refund.  Many clients, especially lower income clients who receive the Earned Income Tax Credit can receive thousands of dollars back which is more than several months of income from their job.

South Carolina Family Courts have the authority to determine which parent gets to claim the children on the income tax return (SC Code Ann. §20-3-130(F)); however, the Court will not be able to allocate or distribute this exemption unless it is specifically asked for or allowed to be tried as an issue without objection from both parties.

Typically, the custodial parent will be awarded the dependency exemption; however, if the non-custodial parent is allowed to claim the dependency exemption for one or all of the children, the custodial parent will be required to complete and execute IRS Form 8332 each year and that form must be included with the non-custodial parent’s tax return when he/she files it.

But what if you don’t have a court order – before anyone has filed for custody?  The IRS has a five part test for determining which parent may claim the dependency exemption:

  1. Relationship;
  2. Age;
  3. Residency;
  4. Support;
  5. Joint Return.

The Relationship test means that the dependent you are claiming is your son or daughter (natural or adopted), a foster child, brother, sister, half-brother, half-sister, or a descendent of any of them.

The Age test simply means that your child is under age 19 at the end of the year and younger than you (or your spouse) or they are a student under the age of 24 at the end of the year and younger than you or your spouse.  Finally, regardless of age, you may claim a child if they are permanently and totally disabled.

To meet the requirements of the Residency test, your child must have lived with you for more than half the year. There are some exceptions for temporary absences such as illness, education, military service, or vacation.

The Support Test requires that you provided at least one-half of your child’s support for the year and the child did not provide more than one-half of his/her support for the year.  Most of the time this is not an issue; however, if your child works and earns enough income to support himself/herself, then you may lose this credit.

The Joint Return test means that the child cannot file a joint return for the year.

Tie Breakers

Absent a Family Court Order outlining who can claim the children, it is entirely possible that both parents would qualify to claim the child as a qualifying dependent using the dependency exemption.  So who would get to claim the child in that case?

  • If the parents do not file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.
  • If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year.
  • If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year, but only if that person’s AGI is higher than the highest AGI of any of the child’s parents who can claim the child. If the child’s parents file a joint return with each other, this rule can be applied by dividing the parents’ combined AGI equally between the parents.
In Child Support, Children's Issues, Divorce, Family Law 101, Financial Issues in Marriage
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