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Family Law

Monday, February 9, 2015

Top Ten Child Support Myths

Child support disputes can bring out the worst in many parents, conjuring images of greedy ex-spouses and children who are used as pawns in games of parental posturing and revenge. While there may be a certain degree of truth to some of the stereotypes, there are many myths that are prevalent in the context of children and divorce.

Myth: Child support payments are based on the needs of the children.
Fact: Support payments are based on the parents’ ability to earn income and have no basis in the actual costs to raise a child.

Myth: Child support payments must be spent on the child.
Fact: No state requires child support recipients to account for expenditures or prove they were necessary to meet the child’s needs, or even whether they were spent on the children at all. In fact, many states view the purpose of child support as protecting the standard of living of the custodial parent.

Myth: I can move out of state to dodge my child support obligations.
Fact: Each state has its own child support enforcement agency and these agencies all work together. You cannot escape this obligation.

Myth: I can quit my job in order to avoid making child support payments.
Fact: The courts are permitted to “impute” income to a parent who intentionally quits a job, whether or not that parent is currently earning a paycheck. Obligations will continue to accrue and payments must be made.

Myth: I have lost my job and can’t make my child support payments, so I will be sent to jail.
Fact: You can only be incarcerated if you have the ability to pay but refuse to do so. If you have lost your income and do not have the ability to pay, you will not be criminally liable for non-payment.

Myth: My ex-spouse uses child support payments for shopping, dining and to support a lavish lifestyle; therefore, my support payment should be reduced.
Fact: So long as the custodial parent pays expenses to feed, clothe and house the minor children, which is the ultimate purpose of child support payments, whatever else she spends money on is generally not scrutinized.

Myth: My living expenses are high and I cannot afford the child support payments; therefore, my support payment should be reduced.
Fact: Generally, expenses must be necessary and extreme in order to be considered as a basis for child support calculations.

Myth: Child support payments are deductible on my income taxes.
Fact: Child support payments are not deductible to the paying parent; nor are they considered “income” to the receiving parent.

Myth: If I have children with a new partner, my child support payments will decrease.
Fact: The birth of a new child will not reduce your obligations to make child support payments to a prior spouse. New children may affect the existing child support order if you get another divorce and must pay child support for the second set of children.

Myth: My ex-spouse claims she can modify the child support order and take my house, bank account or other assets.
Fact: A future child support modification can only address the amount of child support payments going forward. Assets cannot be seized and typically are not considered in modifications.
 


Monday, January 5, 2015

No Longer Spouses, But Still Partners

Workplace romances are never advisable, but sometimes co-workers and business partners fall in love and get married. Unfortunately, they also sometimes fall out of love and get divorced. What happens next?


For some couples, the end of the marriage parallels the end of their working relationship—and possibly the end of the business itself. There are a number of options in such cases. The couple can sell the business and split the proceeds as part of the divorce settlement, or one partner can buy out the interest of the ex-spouse.  Or they can try to split the business, with each taking half. Speak with an experienced business lawyer about the pros and cons of these options for your situation.

However, some former spouses do figure out a way to maintain their business partnership after the divorce. The personal relationship may have hit a dead-end, but the investment involved in building and growing a successful company can make it hard to walk away—and unless the business is wildly successful, with plenty of prospective buyers waiting in the wings, it is feasible that neither party can afford to walk away.

Overcoming the Challenges


There are challenges in every business partnership, and ex-spouses can adopt some basic business strategies to cultivate and maintain a healthy working relationship:

  • Sign a partners agreement. Be clear about your separate and joint responsibilities, and matters of liability. Make a contingency plan outlining how assets will be divided in case either partner decides to leave.
  • If necessary, divide up responsibilities or tasks you once did together so you each have more autonomy.
  • Establish a board of directors. Trustworthy business people may have valuable perspectives about the direction and goals of your company.
  • Keep the company finances transparent. Money is often one of the most difficult issues in a divorce. Get help if necessary to streamline your accounting processes.
  • Be professional around other staff members and employees. It is not fair to put employees in a position where they feel pressured to take sides or respond to inappropriate complaints about their other boss. A toxic work environment is never good for business.

Thinking Outside the Box

Even with the best intentions, a divorced couple may keep falling back into their old patterns at the workplace. If you still think that the business is viable and worth the effort to make a go of it, get professional help. A good marriage therapist is trained to help couples understand the point of view of the other person and gain insight into their dynamics, and this can be valuable information post-divorce, as well. 

Most entrepreneurs have a knack for thinking outside the box. Maybe you and your ex- can alternate day and night shifts for a few months.  Build a partition between your desks. It might take a while before you move from being unhappy exes to friendly partners - but it just might be worth it.
 


Monday, December 22, 2014

Issues to Consider When it comes to Marriage and Debt

Marriage is a commitment, but in theory, it’s supposed to be a long and happy commitment. In order to give yourself the best chance at future marital bliss, you should have a frank “money matters” conversation with your partner-to-be before you tie the knot.


Marrying someone with substantial debts can impact major life decisions like buying a house, raising a family and even the type of wedding you can afford. It’s therefore essential that you sit down with your future spouse and get an idea of the condition of their credit and any hidden monstrous debts that may be lurking in the background, prepared to spoil your honeymoon.

Types of Debt

Debt can generally be divided into two categories?good debt and bad debt. Good debt is usually long-term low interest debt and is often backed by a government guarantee?think student loans, mortgage loans and even some small business loans. If your future husband or wife just finished their residency in endocrinology, they probably have some intimidating student loan debt from med-school. You should be aware of that debt, but it’s not the kind of thing that should scare you away from saying, “I do.”

Bad debt, on the other hand, is the type of short-term, high-interest debt that has the potential to cause serious problems?think credit cards, personal loans and some car loans. If your beloved has been earning a middle-class income but dresses in enough designer apparel to impress even the red carpet crowd, there might be some nasty high-interest credit card debt just waiting to cause some added wedding day stress. Some credit card companies can charge interest rates up to 34% in addition to high fees and enormous penalties. This type of debt can really put a dent in your monthly income and lead to the kind of lover’s quarrels you want to avoid.

To Delay or Not to Delay

Once you know where your future partner’s finances lie, you can make an informed decision about whether it makes sense to get married now or delay for a while. For the most part, you won’t be personally responsible for the debts your partner incurred before the marriage. There are some exceptions to this rule (the comingling of funds or assumption of debts) but they can be avoided with careful planning.

However, just because you’re not personally responsible for the debt doesn’t mean it won’t present problems. Most married couples operate their household as a single unit. That is, they contribute their earnings and assets to make ends meet. If a substantial portion of your partner’s income is diverted to old debts, there will be less money in the “pot” for things like rent, fuel, entertainment and food. Also, it will be difficult, if not impossible, to apply for a mortgage together if your partner’s credit is in the gutter. If you’re fine with these prospects, and head over heels in love, then by all means go forward with the wedding?at least you, unlike thousands of other couples, will have an understanding of the challenges you are facing.

If, however, you’re not comfortable with your partner’s finances, there are a few things you can do. First, you can delay the marriage and work together with your partner at restoring their credit and paying down their debts. You can still set a wedding date. In fact, the certainty of the wedding date is often an impetus to get down to the brass tacks type of financial sacrifice it takes to properly repair a credit rating and pay off those bad debts. In some cases, it takes only a year or less to get things in good shape.

 


Monday, November 17, 2014

Adopting a Grown-Up: Top Three Reasons for Adult Adoption

While the vast majority of adoptions involve adults adopting children, all states have laws that permit “adult adoption,” in which a person 18 or older is adopted by another adult as mutually agreed by the parties. Some states may restrict adult adoptions to cases where the person being adopted is of diminished capacity. If the person being adopted is married, some states require the spouse to consent. Other states simply require the two adults to consent to the adoption.

Why would an adult want to be adopted?

There are typically three reasons why adults choose to adopt another adult. The most common reason is inheritance. Whether it takes place when the adopted party is a child or an adult, the adoption creates a legally recognized parent-child relationship, enabling the adoptive child to inherit property from the adoptive parents in accordance with state law.

Secondly, adult adoptions can be used to formalize a parent-child relationship. For example, there may have previously existed a stepparent-stepchild, or foster parent-foster child relationship, and the adult parties now wish to formally recognize the relationship.

Finally, adult adoption can help ensure perpetual care for a person of diminished capacity. Formally adopting the adult with special needs may enable him or her to qualify for lifetime care under family insurance, and can help ensure assets pass to the adoptive child.

As with any traditional adoption of a minor child, an adult adoption triggers several significant, legal changes. When the adoption is finalized, the parental relationship with the biological parents is severed, and a new parent-child relationship is created. A new birth certificate will be issued, bearing the adoptive parents’ names, and the adoptive child may change his or her last name to that of the adoptive parents.  


Wednesday, October 15, 2014

Protecting the Rights of Parents with Disabilities

The Americans with Disabilities Act (ADA), signed into law in 1990, recognized the civil rights of a large class of citizens with physical and mental disabilities by making it illegal to discriminate against them in employment, transportation or public services and accommodations. Since its enactment, much progress has been made, enabling people with disabilities to obtain an education, pursue a career, live independent lives and fulfill their dreams. 

Despite this progress, people with disabilities who have children are more likely to have their parental rights terminated or lose custody after a divorce. 

Discrimination in the Courts

These discriminatory actions are often justified on the grounds that the courts are protecting the best interests of the child, but there is little research to support the assumption that someone who is disabled is incapable of being a good parent. In fact, according to advocacy groups there are likely more than 4 million parents with physical disabilities currently raising children. 

Most family courts work diligently to provide services and support to ensure that children maintain contact with their parents whenever possible. This is not always the case when disability is involved. There have been cases where disabled parents have not been allowed to bring their newborns home and the state subsequently filed to have their parental rights revoked, even in the absence of evidence of abuse or maltreatment. The presumption is that the disability endangers the welfare of the child. Currently, two thirds of the states have laws permitting the removal of children based on the disabled status of the parent.

Disadvantage in Custody Cases

Parents with disabilities are also at a disadvantage in custody cases, particularly if the ex-spouse does not have a disability. Competent parents with special disabilities require knowledgeable advocates who can demonstrate that they are able to effectively carry out their parenting duties in their own adaptive ways.

Fighting Discriminatory Practices

Advocates for the legal rights of parents with disabilities are waiting for a landmark trial that halts the discrimination suffered by parents with disabilities and protects their rights to have and raise children. While everyone agrees that children should not be exposed to a hazardous environment, decisions to remove children from homes where a parent is deaf or has a low IQ are often made by individuals who fail to grasp the remarkable capabilities of such parents despite their significant handicaps. More education on disability issues is needed at all levels of the child welfare and family court systems. At the same time, parents with disabilities must have better access to fair legal representation and support services. 


Monday, September 15, 2014

Stepparent Adoptions

Stepparent adoption is the most common form of adoption in the United States. Once the adoption is finalized, the stepparent assumes full financial and legal responsibility for his or her spouse’s child and the non-custodial parent’s rights and responsibilities are terminated.  

Stepparent adoptions are handled according to state law, which can vary across jurisdictions. For example, some states do not require a home study in cases of stepparent adoption. Most states require that the biological parent and stepparent be married for a specified length of time before an adoption may be finalized. Fortunately for blended families, most states make the adoption process easier for stepchildren to be adopted by their stepparents.

Stepparent adoptions require the consent of both of the child’s birth parents, but the process is handled differently in various states. In some states, the non-custodial parent must file papers with the court or appear before a judge, while a simple written statement is sufficient in other jurisdictions. Some states require the non-custodial parent to seek counseling or speak to a lawyer in order to give valid consent.

The consent requirement is not absolute and in fact, consent may not be required in certain situations. In some states, a stepparent adoption may be finalized even if the child’s biological, non-custodial parent contests the adoption, such as when the non-custodial parent has not contacted the child for a specified period of time. If you are having difficulty obtaining consent, you should speak with an attorney. If you cannot afford an attorney, you may be eligible for free legal aid or the court may appoint a guardian ad litem to represent your child.
 


Saturday, August 30, 2014

Overview of Life Estates

Establishing a Life Estate is a relatively simple process in which you transfer your property to your children, while retaining your right to use and live in the property. Life Estates are used to avoid probate, maximize tax benefits and protect the real property from potential long-term care expenses you may incur in your later years. Transferring property into a Life Estate avoids some of the disadvantages of making an outright gift of property to your heirs. However, it is not right for everyone and comes with its own set of advantages and disadvantages.

Life Estates establish two different categories of property owners: the Life Tenant Owner and the Remainder Owner. The Life Tenant Owner maintains the absolute and exclusive right to use the property during his or her lifetime. This can be a sole owner or joint Life Tenants. Life Tenant(s) maintain responsibility for property taxes, insurance and maintenance. Life Tenant(s) are also entitled to rent out the property and to receive all income generated by the property.

Remainder Owner(s) automatically take legal ownership of the property immediately upon the death of the last Life Tenant. Remainder Owners have no right to use the property or collect income generated by the property, and are not responsible for taxes, insurance or maintenance, as long as the Life Tenant is still alive.

Advantages

  • Life Estates are simple and inexpensive to establish; merely requiring that a new Deed be recorded.
  • Life Estates avoid probate; the property automatically transfers to your heirs upon the death of the last surviving Life Tenant.
  • Transferring title following your death is a simple, quick process.
  • Life Tenant’s right to use and occupy property is protected; a Remainder Owner’s problems (financial or otherwise) do not affect the Life Tenant’s absolute right to the property during your lifetime.
  • Favorable tax treatment upon the death of a Life Tenant; when property is titled this way, your heirs enjoy a stepped-up tax basis, as of the date of death, for capital gains purposes.
  • Property owned via a Life Estate is typically protected from Medicaid claims once 60 months have elapsed after the date of transfer into the Life Estate. After that five-year period, the property is protected against Medicaid liens to pay for end-of-life care.

Disadvantages

  • Medicaid; that 60-month waiting period referenced above also means that the Life Tenants are subject to a 60-month disqualification period for Medicaid purposes. This period begins on the date the property is transferred into the Life Estate.
  • Potential income tax consequences if the property is sold while the Life Tenant is still alive; Life Tenants do not receive the full income tax exemption normally available when a personal residence is sold. Remainder Owners receive no such exemption, so any capital gains tax would likely be due from the Remainder Owner’s proportionate share of proceeds from the sale.
  • In order to sell the property, all owners must agree and sign the Deed, including Life Tenants and Remainder Owners; Life Tenant’s lose the right of sole control over the property.
  • Transfer into a Life Estate is irrevocable; however if all Life Tenants and Remainder Owners agree, a change can be made but may be subject to negative tax or Medicaid consequences.

Friday, August 15, 2014

(Grand)Parenting 2.0

According to the National Census Bureau, grandparent-headed homes are among the fastest growing household types in the United States. Grandparent-headed homes are defined as living arrangements where the primary financial and caregiving responsibilities are held by one or more grandparents rather than a parent. Though the reasons that lead to this type of arrangement vary, many speculate that a difficult job market and bleak economy has led to an increase in the past few years.

At the height of the financial crisis, the Wall Street Journal published an article describing the financial strain placed on grandparent-headed households. For grandparents who have already retired, finding a job at an advanced age can be next to impossible. The unemployment rates for this demographic are disproportionately high as are levels of ‘discouragement,’ or the part of the population so frustrated with trying to find work that they are driven from workforce. The degree of financial hardship is exacerbated by the increase in the price of everyday goods and necessities, like food and clothing.

Beyond the financial strain, taking care of a young child can also have a significant impact on a grandparent’s mental and physical well-being. If an infant is placed in the grandparent’s care, he or she may have disrupted sleep due to nightly feedings. Grandparents raising young children are also frequently exposed to diseases and infections common in childhood. Depression and anxiety disorders are not uncommon and for children with developmental delays or behavioral problems, the demands placed on caregivers are that much greater.

In some cases, grandparents may become the head of a household even when parents are present. In situations where a parent has become unemployed or otherwise cannot care for the children, he or she may move the entire family into his or her parents’ home. In addition to grandparent-headed homes, other types of arrangements where the parent is not the primary caregiver are on the rise. These may include instances where an aunt or uncle takes responsibility for a nephew or niece.

Fortunately, many federal and state governments have started to recognize this trend and are putting resources in place to assist non-parent-headed homes. The American Association of Retired Persons has also created a comprehensive guide and resource center for grandparents parenting a child.


Wednesday, July 30, 2014

Know the Risks of “D-I-Y” Divorce

“Do it yourself” divorce is fraught with risks – even if your case is “simple” and both parties agree on all issues regarding division of property, support, and child custody and visitation. As many have learned the hard way, it is all too easy to make critical missteps today that will come back to haunt you down the road.

The proliferation of DIY websites and non-attorney legal document preparers give the impression that the process is simpler than it is. These services can help you deal with the court forms required to dissolve a marriage, including financial disclosures, motions, hearing notices and child support paperwork. It’s tempting to save money by using one of these services to prepare and file your divorce forms without using a lawyer.

Unfortunately, these services will leave you in the lurch when things do not go as planned, as they cannot offer you any legal advice or engage in any negotiations on your behalf. Worse still, they cannot point out the pitfalls contained in your paperwork which can pose risks to your financial future long after you think you’ve put the marriage behind you.

The typical do-it-yourselfer believes that everything is correctly resolved because the court accepted and processed the forms and has issued the divorce decree. However, this may or may not be the case; and any problems can remain undiscovered for years until, for example, one spouse embarks on a significant financial transaction such as purchasing a home.

A common scenario involves incomplete (or incorrect) provisions in a marital settlement agreement, leaving both spouses legally on the hook for a mortgage. What happens when the spouse who kept the home and obligated to make the monthly payments fails to do so? What happens when the other spouse applies for a mortgage on a new home, but the amount of the monthly payment of the previous mortgage is still considered when calculating the debt-to-income ratio? This is just one example of how “saving money” on the front end of your divorce can cost you greatly in the future.

Even if your divorce is “uncontested,” in that you and your spouse agree on all of the settlement terms, getting legal advice upfront will ensure the process goes smoothly and that you do not encounter any unpleasant surprises in the future. A consultation with a family law attorney can identify what issues must be addressed, point out potential negative consequences of certain decisions, and let you know what to expect throughout the divorce process.

If your divorce case is “contested,” meaning you cannot agree on terms regarding your property or children, it is important that you consult with a lawyer to obtain a realistic idea of what you can expect based on your legal rights under the circumstances. And, unlike the DIY services, an attorney can also represent your interests during settlement negotiations. If settlement negotiations are unsuccessful, your lawyer can ensure the court fully considers all information in your favor prior to making any rulings.


Sunday, July 20, 2014

Family Business: Preserving Your Legacy for Generations to Come

Your family-owned business is not just one of your most significant assets, it is also your legacy. Both must be protected by implementing a transition plan to arrange for transfer to your children or other loved ones upon your retirement or death.

More than 70 percent of family businesses do not survive the transition to the next generation. Ensuring your family does not fall victim to the same fate requires a unique combination of proper estate and tax planning, business acumen and common-sense communication with those closest to you. Below are some steps you can take today to make sure your family business continues from generation to generation.
  • Meet with an estate planning attorney to develop a comprehensive plan that includes a will and/or living trust. Your estate plan should account for issues related to both the transfer of your assets, including the family business and estate taxes.
  • Communicate with all family members about their wishes concerning the business. Enlist their involvement in establishing a business succession plan to transfer ownership and control to the younger generation. Include in-laws or other non-blood relatives in these discussions. They offer a fresh perspective and may have talents and skills that will help the company.
  • Make sure your succession plan includes:  preserving and enhancing “institutional memory”, who will own the company, advisors who can aid the transition team and ensure continuity, who will oversee day-to-day operations, provisions for heirs who are not directly involved in the business, tax saving strategies, education and training of family members who will take over the company and key employees.
  • Discuss your estate plan and business succession plan with your family members and key employees. Make sure everyone shares the same basic understanding.
  • Plan for liquidity. Establish measures to ensure the business has enough cash flow to pay taxes or buy out a deceased owner’s share of the company. Estate taxes are based on the full value of your estate. If your estate is asset-rich and cash-poor, your heirs may be forced to liquidate assets in order to cover the taxes, thus removing your “family” from the business.
  • Implement a family employment plan to establish policies and procedures regarding when and how family members will be hired, who will supervise them, and how compensation will be determined.
  • Have a buy-sell agreement in place to govern the future sale or transfer of shares of stock held by employees or family members.
  • Add independent professionals to your board of directors.

You’ve worked very hard over your lifetime to build your family-owned enterprise. However, you should resist the temptation to retain total control of your business well into your golden years. There comes a time to retire and focus your priorities on ensuring a smooth transition that preserves your legacy – and your investment – for generations to come.


Wednesday, July 16, 2014

Prenup Considerations Before You Say I Do

Most people think of marriage as a declaration of love and commitment, not as a legal contract that defines the financial and familial obligations of each party. That is, until they start negotiating a divorce settlement and discover their state’s policy on the division of marital property and spousal support. Although not every couple establishes a prenuptial agreement, there are several good reasons for having a smart prenup in place before saying those magical words, “I do."


What is a Prenup?
A prenuptial agreement is a legal document that allows the couple to make decisions about their finances and marital property should they eventually decide to part ways. You cannot circumvent the child custody statutes in your state through a prenuptial agreement, although you can decide who gets to keep the family dog. The terms of the prenup must be legal and should be fair to both parties. For instance, an agreement that would leave one spouse homeless with no source of income would not be enforceable.

A prenup is particularly useful when one, or both parties, enter into the marriage with valuable assets or has children from a previous relationship. Older couples are more likely to consider a prenup because they have more assets to lose. Those who are exchanging matrimonial vows for a second or third time recognize that having a customized financial game plan in place can make divorce proceedings less stressful.

A prenup can eliminate later disputes over assets during a divorce and save the couple from acrimonious, time consuming and stressful litigation. 

When Should You Consider a Prenup?
A prenup might be a good idea if you have any of the following concerns:

  • Providing peace of mind for the partner who has significantly more income or wealth
  • Making sure your business remains intact, in your name
  • Defining assets such as property, a retirement fund or investments as separate property, not marital property
  • Retaining possession of family property, heirlooms or an anticipated inheritance after a divorce
  • Looking after the long-term interests of children from a previous marriage
  • Worrying that changing your career plan to raise children will leave you at a financial disadvantage
  • Avoiding interference with an estate plan
  • Financing long-term care for elderly parents or relatives

Starting Your Marriage the Right Way
The divorce laws in most states work on the assumption that both partners in a marriage have agreed to pool their tangible and intangible assets, and the courts generally attempt to make an equitable and fair division of these assets following a divorce.  A prenuptial agreement gives you and your intended spouse the opportunity to consider potential areas of disagreement regarding your financial future and address them in a forthright and realistic manner.

 


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