Archive for May, 2018

Who Decides Upon The Visitation Schedules?

Wednesday, May 23rd, 2018

Because you and your spouse will no longer be living together after the divorce, a visitation schedule will be constructed to preemptively map out the dates and times the child will spend with each parent, and to organize the child’s life in an orderly fashion. This schedule is greatly (and obviously) impacted by the child custody order, as depending on whether there is sole or joint custody will subsequently influence how much time the child spends with each parent. But, who creates the visitation schedule?

As is the case with all child-related matters in family court, the judges primary concern is “what is in the best interest of the child?” Although a judge is not always needed to decide custody and visitation (for example, both of these can be dealt with outside of court by working with a mediator), if it gets to that point, the judge will be the one to decide on what custody/visitation arrangement is in the best interests of the child. By going to court, and not resolving these issues amongst themselves, parents are no longer in control over a huge part of the child’s life.

It would be ideal for the parents to be able to cooperate in the construction of the visitation schedule and create a realistic custody agreement that works for the family, as well as their child. The way that you and your spouse would decide on these issues is most likely not going to be in line with what a judge would rule on, however they will always be focused on ensuring the child’s interests are the top priority.  

 

Can We Agree That There Will Be No Child Support Paid?

Monday, May 21st, 2018

Although there can be no instance where the court will allow that the non-custodial parent is not required to pay any child support, there is a matter of whether or not the custodial parent will collect, or enforce, these payments. In some instances, the court will not always know that a parent is not making custody payments unless the spouse that should be receiving said payments reports that they haven’t received any support. Beyond that, if the custodial parent does not feel like reporting the lack of payments coming in, then the non-paying parent is not likely to face any serious problems.

The reason that a court does not allow for no payments to be made is not actually about the parents, but rather the child. It is the child that is legally entitled to receive these payments (as that is who these payments are intended to benefit), up until they are 18. The most common way that child support orders come about is as part of a divorce process, along with the custody order. An example of this would be when the court is deciding which parent the child will spend the majority of time with, the next logical step would be figuring out how much the non-custodial parent will be paying in child support.

The other instance in which a child support order comes about is if the parents are not married, and the parent who the child resides with seeks some type of support. Although this can only begin after paternity has been established for both parents, herein lies the situation in which a parent is not paying child support without court enforcement. If the parents decide that the parent not living with the child does not need to pay support, as they are going to leave the child’s life or the support is not needed, and they never go to court about the issue, then in this situation, yes, you can agree amongst yourselves that there need not be any child support.

Are Child Support Payments Tax Deductible?

Thursday, May 17th, 2018

 

Many parents that are ordered to make child support payments reasonably assume that those payments can be claimed as a deduction, and are curious as to why they cannot list them as such on their tax returns. Their reasoning often comes from the fact that spousal support, or alimony, which many child support-payers also have to make, is deductible, and so therefore it would only make sense that you can claim child support payments as deductible as well.

However, this is not the case. This is an IRS issue, not a court issue, and so it is important to look at this issue from their perspective. Because these payments go towards supporting your children, these payments are considered as personal expenses. To provide some context, in their eyes, it is the same as if you were paying for your child’s expenses as you would if you and the other parent were married. But since you are separated, the custodial parent acts as a sort of middleman – the money you pay them goes towards payments for the children, just as if you were making the payment yourself for whatever their current needs are (food, clothes, etc).  In addition, not only is child support NOT tax deductible, but the parent who is receiving these child support payments may not list it as taxable income.

There is another way in which tax money and child support are intertwined. Suppose you are behind on your child support payments, and at the same time are expecting a refund from your federal taxes. If you are indeed behind on child support payments, and do not remedy this, don’t expect to see any of that federal tax refund money. The Treasury Department will be made aware of your “maleficence”  and will forward any tax refund you are entitled to, to your child’s state child support agency, who will then redirect that money to your child’s other parent, ensuring that your child receives the money that they are entitled to (remember, it is not the custodial parent that is entitled to receive this money for themselves, but rather for your child). Beyond that, there is no link between child support payments and taxes.

What Is Marital Abandonment?

Tuesday, May 15th, 2018

Otherwise known as desertion, abandonment is a very common scenario in which one of the spouses, with no apparent cause or reason, abandons the other by way of essentially getting up and leaving either the household or their spouse alone and on their own in general. In such a scenario, the abandoned spouse would have grounds for a divorce, however there are some requirements to bring a divorce under such grounds. A big one is that they have been abandoned for at least a year, and that not only was this departure not agreed upon, but also that the abandoned spouse did not cause the unwanted walk out. This is significant because if there is a scenario where one of the spouses has made it virtually impossible to live with the other (this, as you can imagine, is not unheard of), then the abandoning spouse can claim constructive desertion in response to a suit. If a spouse’s conduct makes it impossible for their spouse to stay in the marital home, they have been constructively deserted.

Another way in which a spouse can be considered deserted is in a sexual sense, as in their spouse refuses to have sexual relations, which is widely accepted as being part of a marriage. Sexual desertion is also considered a fault ground, and the same time limit to prove exists (one year), and during this year of no sex, the spouses must have lived under the same roof. Constructive desertion is often the result of cruel and inhumane treatment, but it is important to understand that if this is a ground which you want to pursuit, you will have to divulge and delve into some very personal and potentially uncomfortable topics in court, in front of attorneys and the judge. Lastly, it is important that the major difference between separation and abandonment is that a separation is mutual between the two parties, whereas abandonment is not agreed upon between the spouses.