Avoiding Estate Planning Disputes
November 29, 2005
Over the years, there has been an increase in estate litigation, especially in second-marriage situations where the children are often close in age to the second spouse. Primarily because of increased wealth, we have a more litigious society. However, litigation is not only about money, it is also about emotions. Litigation is on the rise not only between the surviving spouse and children, but also among the children themselves, especially when one of them was actively engaged in a business with the decedent. There are also emotional upsets when a parent attempts to take into consideration the wealth of his or her children.
Divorce and the Assignment of Income Doctrine
October 31, 2005
One who is entitled to receive income, including interest or compensation for services, but assigns the income to another before it becomes due, will be taxed on it just as though he or she had actually received it and then paid it over to the assignee. This concept is known as the assignment of income doctrine.
Unallocated Family Support
October 31, 2005
In an article in the January, 2004, issue of The Matrimonial Strategist, I discussed the use of temporary support orders in a divorce action to allow the payor to deduct undifferentiated family support payments or for the purpose of paying debts, such as counsel fees, in light of a series of recent cases. The leading case disallowing the deduction of family support payments is Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002) (Colorado law; family support payments) but there are decisions involving the law of other states, mainly found in a series of Tax Court memorandum decisions. Some more recent cases now cast doubt on these precedents, leaving resolution of the issue uncertain, both for temporary orders, which by definition abate with the death of one of the parties to the pending divorce action, and for permanent marital settlements. They also raise the question whether an explicit termination provision would be effective if federal tax authorities conclude that the relevant state court would decide that the termination clause could not apply to the payor's child support obligation included within the support payments required by the order. A survey of state law reveals that this question is unresolved in almost every state, leaving the field wide open for federal tax determination of an important state law issue.
Use And Abuse Of Experts In Matrimonial Cases
October 31, 2005
Most of us are familiar with using CPAs to value businesses, and psychologists and psychiatrists to make mental health assessments in custody cases. Pharmacological and DNA experts have become commonplace; so have employment experts in maintenance cases. However, there are many other uses of experts. Our imagination is the only limitation. Nevertheless, there are many things to consider when employing experts. Once you decide how to use your expert, you then must consider the expert's qualifications, the application of hearsay and other rules of evidence, as well as standards of professional practice.
Litigation
October 31, 2005
Recent rulings of importance to you and your practice.
'Moral' Obligation to Adult Child Found No Bar to Restitution
October 31, 2005
In this age of corporate greed, the courts are faced with many new issues surrounding restitution. The appeal of Bernard Jaffe Jr. gave the Second U.S. Circuit Court of Appeals its first opportunity to define the term "dependent" under the Mandatory Victims Restitution Act of 1996, which requires district courts to order restitution to compensate victims for their losses "without consideration of the economic circumstances of the defendant."
Bias and Prejudice in Custody Evaluations
October 05, 2005
Only fools assert that they are free of biases. Biases come in many forms. Some are personal (held by particular individuals); some are culturally determined; and some come with being human, and affect all of us. Some biases operate consciously; some operate outside the realm of consciousness. Some biases are reasonably foreseeable; some cannot be anticipated. Of significant concern to matrimonial attorneys are those biases that affect the judgment of custody evaluators.
Litigation
October 05, 2005
Recent rulings of interest to you and your practice.
Father Must Pay Support to Child in India
October 05, 2005
An Indian father who remains in the United States while his child and her mother live back in India must pay child support according to U.S. guidelines, a Pennsylvania Superior Court panel has ruled in an apparent case of first impression.
Divorce and the Assignment of Income Doctrine
October 05, 2005
One who is entitled to receive income, including interest or compensation for services, but assigns the income to another before it becomes due, will be taxed on it just as though he or she had actually received it and then paid it over to the assignee. This concept is known as the assignment of income doctrine.
