Family Lawyer

Vol. 10, No. 1 {Summer 2006}

A semiannual newsletter designed to provide legal information that family counselors and therapists can use to help their patients.

DOMESTIC PARTNERSHIP ACT

What Does the Act Give Same Sex Couples?
• Legal Recognition • Protects same sex couples under the NJ Law Against Discrimination • During the partnership, the parties can be held financially responsible for each other • Accompany your partner in an ambulance • Hospital visitation privileges • You can make emergency health-care decisions for your partner • You can make decisions regarding organ donation and burial • Provides State employees with dependent health-care insurance and retirement benefits • Provides for State tax benefits when filing for inheritance and transfer of property at death • Requires insurers to offer employment policies with benefits for dependent domestic partners.

BEWARE OF “UNALLOCATED PAYMENTS”

When support payments are made for both the children and as alimony, the payment is usually not distinguished as “child support” or “alimony”. The implication to the parent receiving the unallocated support is that the support will be deemed “taxable” if not specifically called “child support”. This is so even if the intent was clear that the payment was for both alimony and child support. When drafting the final agreement or Order make sure you designate the payment as child support to avoid taxation.

TAX BENEFITS FOR THE CUSTODIAL PARENT ONLY

There are certain tax benefits that are available for the custodial parent only (custodial parent means the parent who has the child more than 50% of the year). The right to claim the dependency exemption belongs to the custodial parent. That parent can waive the exemption and give it to the other parent as part of the negotiation but it belongs to the custodial parent.

The other benefits that belong to the custodial parent are child care credit, dependency care deduction, certain education expense deductions/’credits, head of household filing status. Medical expenses are deductible by whichever parent pays the bill regardless of custody.

HEY, I DIDN’T SIGN THE RETURN

So often in a divorce a spouse will tell you that he/she did not sign the tax return and as a result believes that if there is any wrongdoing by the other spouse they are not responsible because not only did they not sign the return, they never even saw the return.

Clients often believe they are the “Innocent Spouse” . What your client needs to know is if they went along with that procedure during the marriage (didn’t look, didn’t sign) you cannot claim that as a defense because you allowed your spouse to act on your behalf as a routine during the marriage. My advice, prepare your own return if you believe your spouse may be engaging in wrongdoing such as under reporting income.

IMMIGRATION ISSUES:

Family issues are often compounded by immigration issues especially now with the “tightening” of our boarders. Here are some examples of problems my clients have faced.
1. My client marries an American believing that guarantees him a green card. Not true. Spouses of citizens must meet certain criteria and could be separated for long periods of time while visa problems are worked out. Today, government does not hesitate to deport a spouse regardless of the hardship.

2. A stepparent can only petition for a stepchild while the marriage is valid. A divorce severs the relationship.

3. In anger a client sought to have her husband deported. The result was the payor parent leaving the country and the spouse being left in the USA with no means of support for her or her children. Not something one should do in order to obtain revenge.

4. VAWA (Violence Against Womens Act) allows a spouse or child to leave an abuser and self-petition for an immigrant visa, without the assistance of the abuser.

ADOPTION ISSUES CONTINUED:

Many different scenarios could pose problems for the child. An example would be a young mother agrees to allow an unrelated family to adopt her child on condition that she be entitled to visitation after adoption. This type of agreement is unenforceable even though visitation may be in the best interest of the child. Courts should be allowed to use their discretion to allow and modify visitation on a case by case basis.

Secondly, our courts encourage settlement. If there is a contested adoption, and the biological parent is willing to settle if allowed post-adoption visitation, then the inability to allow for the visitation will result in increased litigation.

Thirdly, a problem could arise if an unsophisticated mother believes that the “off the record” word of the adoptive parents to have visitation is allowed. Adoptive parents may have a selfish motive to tell the biological parent anything she wants to hear in order to get the adoption finalized, only to change their mind after the adoption.
Open adoptions need to be reconsidered by our Judiciary for the reasons set forth above.

SECOND ADOPTION ISSUE

Beginning September 1, 2006, the state judiciary will require that all stepparents and other residents in a home, aged 18 and over, undergo extensive background checks before adoptions are approved. If anyone in the home has a questionable background, a more in-depth investigation can be ordered.

This could cause problems if a son or daughter has had some drug issues or a spouse has not divulged their background. Those with a “skeleton in the closet” could choose not to file for adoption which may not be in the stepchild’s best interest.

CASES IN THE NEWS

Contribution to College
The New Jersey Appellate Division recently found that a non-custodial parent should not have to contribute to the college loans of his/her estranged daughter. The non-custodial parent did not have an ongoing relationship with his daughter although he wanted one. The child went to a private college and did not seek contribution from her father. The father paid child support during the college years. After the child graduated college, the father filed to terminate child support and the determine the child emancipated. The mother moved to have the father reimburse the child for college tuition. The court found that the custodial parent’s application for college contribution was too late.
Important to note, a relationship between a non-custodial parent and the child is not required for the child to ask for financial assistance for college costs. As soon as practical, the custodial parent should communicate with the other parent concerning college selection and the cost to attend college.

Website: http://www.Cerruti-FamilyLaw.com