Defining Income for Child Support Purposes
January 26, 2005
It has become important to keep track of national trends with respect to the definition of income for support purposes. More often than not, your state will not have decided the specific question with which you are struggling, ie, whether or not a particular item constitutes income. The odds are increasing that other states will have dealt with the issue. This article presents some examples of cases over the last few years.
International Family Law
January 26, 2005
International marriages and personal relationships place special demands on family lawyers whose clients require dependable advice about complex international family law issues. This has led to an increasing role for international family law counsel. Today, it would hardly be unusual for an American man and a French woman living in New York to marry in Bermuda, move from New York to Singapore on business, own real estate in Canada and a business in England, and have children in school in Switzerland. If they separated and one spouse unilaterally returned with the children to live in New York, both parties might well require legal advice regarding many matters, each of which might have a significant international component, concerning divorce, custody, equitable distribution, child support, spousal support and child abduction.
How To Empower Your Client
December 27, 2004
Most divorce clients initially feel "powerless" about the events of their lives and their potential divorce litigation. With some creativity, attorneys can encourage their clients to take affirmative steps from the onset, and permit them to feel proactive instead of reactive to the circumstances in which they find themselves. This initial interview with a client carries significant weight and sets the tone for the attorney-client relationship. Attorneys can impress a potential client with their experience in dealing with these issues and solidify the client's trust in their expertise. The creation of trust in the relationship must occur. To accomplish this goal, the attorney must listen to the potential client's facts. Depending on the circumstances, the attorney analyzes the information presented, counsels the client on what facts are important to prove the case and informs the individual how to obtain them. The "empowered client" now has a sense of direction and actually may uncover significant information that might resolve or alter the final result of the case.
Litigation
December 27, 2004
Recent rulings of importance to you and your practice.
Employment Taxes and Stock Options
December 27, 2004
More than 2 years ago, the Internal Revenue Service published Revenue Ruling 2002-22, 2002-19 I.R.B. 849, in which it held that section 1041 of the Internal Revenue Code governed the transfer of stock options and interests in certain unfunded deferred compensation arrangements to the employee's spouse under a marital property settlement. As a result, the employee spouse was not taxable on the transfer. Instead, the spread on the options (the difference between the value of the employer 's stock at the time of exercise and the striking price) and the amount received as deferred compensation under unfunded arrangements were taxable to the nonemployee spouse in the same way and to the same extent as it would have been taxed to the employee. The ruling interpreted section 1041 to have established the rule that property transfers in divorce should be taxed as if the property conveyed were community property that had been transferred in settlement of the transferee's community property rights. As community property, stock options and interests in unfunded deferred compensation arrangements constituted "property" for section 1041 purposes, and the amounts received by the nonemployee spouse would be ordinary income to her (or him), taxable as compensation under IRC '83 and would be "wages" subject to employment taxes and withholding by the employer.
Psychological Assessment: Evaluating the Evaluations
December 27, 2004
In an article scheduled for publication in the April, 2005 edition of the <i>Journal of Child Custody</i> (in press), Gould-Saltman, an experienced family law attorney, opines that attorneys like tests because they "break things down to numbers, and we understand numbers." She adds: "Tests give the sense [emphasis added] of objectivity to counterbalance the much more subjective clinical portion of a custody evaluation." In commenting on the MMPI-2 in particular, Gould-Saltman expresses the view that it is "probably the most well-liked test among lawyers because it offers 'hard numbers' rather than ephemeral concepts." If only it were this simple.
No Removal of Children Who Witness Abuse
December 27, 2004
New York's highest court, the Court of Appeals, recently issued a ground-breaking opinion, holding that a battered woman's failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child. <i>Nicholson v. Scoppetta</i>, 113, Oct. 26, 2004.
More on Same-Sex Relationships
November 29, 2004
The recent developments in the creation and recognition of relationships among same-sex couples have developed a momentum which, like it or not - the recent laws passed by 13 states banning gay marriage, notwithstanding - must be recognized and understood by family lawyers and other related practitioners in the areas of tax, estate planning, adoption, and other financial and interpersonal disciplines. <i>See</i> Wilson R: The Changing and Conflicting State of Same-Sex Marriage. <i>The Matrimonial Strategist</i>, November 2004.
Spousal Opportunity: Does It Exist?
November 29, 2004
Shortly after the entry of a divorce judgment, matrimonial litigants walk away with their respective pieces of the marital estate (sometimes with support or distributive payments to follow) and begin separate lives with separate interests. However, without adequate protections under the law, the value of the marital estate before that pivotal moment (and the value of each litigant's post-termination estate) could have been diminished by the actions of the other spouse. For this reason, some concept of a fiduciary obligation between spouses exists in the majority of the states. Whether in equitable distribution jurisdictions or community property jurisdictions "spouses must manage marital property with care shortly before the termination of the marriage to ensure that the full value of the marital estate gets divided justly according to the prevailing system of distribution.
Litigation
November 29, 2004
Recent rulings of importance to you and your practice.
