I came across this excellent article in The Balance that provides an overview of various options for filing taxes depending on whether your divorce was legally finalized or is still in progress. As part of this overview, the article provides information about the IRS tie-breaker rules for determining which parent gets to claim a child as a dependent.
One thing that the article did not touch on, that I believe is essential, is how child support impacts parents’ qualifications to claim a child as a deduction on their taxes. This impacts many of my clients. As always, in Arizona, parties should, first and foremost, review their specific court orders for clarification on this matter for their particular case, and if you have any questions, consult with your attorney. Also, it is prudent to consult an accountant or tax advisor regarding your specific situation, as family law attorneys do not provide any tax advice.
The Arizona Child Support Guidelines, Section 27, provides that a parent who is not current with his or her child support payments by December 31st may be precluded from claiming a child as a dependent. As with all cases, it is important to check your specific court orders for decisions in your personal case. Additionally, the court can deny both current and future ability to claim a child as a dependent when there is a history of nonpayment of support obligations. Finally, a parent may need to obtain IRS Form 8332 to file with the tax return.
I recently ran across an article whereby the San Antonio Zoo was having a promotion for Valentine's Day, Cry Me A Cockroach. For $5, participants are able to name a cockroach after an ex to be fed to zoo animals. If your ex was a real piece of work deserving of extra attention, you can pay $20 to name a rat that is fed to bigger zoo animals.
As a human who has been accused, on more than one occasion, of having a dark sense of humor, I could immediately see why many of my clients would appreciate this opportunity. However, my attorney brain quickly kicked in, and I began thinking of how participation in such a Valentine’s celebration could easily be used against a party in court.
My own practice deals with a lot of high-conflict custody disputes. In many of my cases, one party is asserting that the other parent is not co-parenting and/or alienating. While on the surface, this may seem like small, harmless, fun, it could easily be evidence of animosity and the hatred in family law court.
I know...total buzzkill, right? If you’re committed to this idea because it provides any psychological relief, do so cautiously. It would be foolish to use actual names here; to be safe, I would encourage use of nicknames for all parties. Also, I would not share this with a single soul. Not verbally, and certainly not through social media or pictures. For anyone struggling with ongoing rage, I would encourage therapy. Anger and hate are very human emotions, especially during and after a significant loss, but you deserve to move past it into your next chapter! Working with a skilled counselor can help ensure that you have appropriately coped with a relationship ending and are able to move forward in a positive direction.
Happy Valentine’s Day!
With the tax season upon us, I thought a little tax information would be helpful. It is important to know that the rules of the tax game are different for the divorcing and divorced. Nerdwallet’s article 7 Tips for Preparing your Taxes in a Divorce and Kiplinger’s article Most Overlooked Tax Breaks for the Newly Divorced provide some good overall information to consider. In summary, the articles address critical issues like:
Filing Status: The decision to file singly or jointly can have tremendous tax implications
Statements: Gather your account statements (you should be doing as part of your divorce already)
Getting Help: If you need it, hire an accountant or a tax specialist
Support: Understand how child support and alimony will impact your tax situation (for example, in Arizona, alimony is not taxed to the recipient nor deductible to the payor)
House Planning: Tax implications can impact your timeline for selling and/or divorcing
Child Effects: Head of Household, Child Tax Credit, medical expenses, and others will impact taxes.
Property Division: Remember, these decisions will come with tax liability you need to anticipate
Overall, these items are valuable to consider and discuss with your attorney, and you’ve probably discussed several of them already. In fact, in complex cases we will often have an expert involved to help throughout the divorce process, which is something you should consider discussing with your attorney. However, most family law attorneys will tell you they do not provide tax advice. I always tell my clients to consult with an accountant or a tax expert to help them with filing and tax planning.
This is not necessarily divorce related, but it is an important notice for all Arizona drivers.
January 1, 2021, starts a new year, but it also brings in a number of new laws that become effective. One in particular, which will affect most people over 16, is the new hands-free law that precludes anyone from using a portable wireless communication device (PWCD) while operating a vehicle. The law falls under A.R.S. 28-914 and applies to, “A cell phone, portable telephone, text messaging device, personal digital assistant, stand-alone computer, GPS receiver, or any similar device that is used to initiate or receive communications, information, or data” (it does not include a radio). For clarity, you can use these devices in hands free mode; in fact there are a number of exceptions, which include the allowable options like the following:
So, what are the consequences of violating this law?
Happy New Year...and I look forward to seeing you in 2021.
January is called ‘Divorce Month’ because, almost every year, more divorce cases are filed in that month than any other. This year, with everyone having the additional difficulty of living through a worldwide pandemic, it is likely the number of cases will be even higher (I hope this is not true, but based on the increased volume of family law cases in 2020, it’s likely). So, if your 2021 includes a divorce, this article may help. Here is a list of 4 things you should do to prepare for filing for divorce.
#1: Consult with a Divorce Lawyer: Over the years, a number of friends and family have asked whether they need a divorce lawyer or not. I always tell them YES. Now, financial realities may impact whether or not the ongoing services of an attorney are feasible, but a consult is wise. If you have the resources to avail yourself of an attorney’s services and support, I do believe everyone can benefit from having a good divorce lawyer on their side.
For your consult, it is important to find the right attorney (please see my prior blog below: “Hiring the Best Family Law Attorney for You” from 9.9.19). At the start of this process, it is VERY important to consider the advice you are taking and the type of lawyer you want before you ever start interviewing potential counsel to represent you. Do you want to have a big fight and take your pound of flesh…or do you want to get a fair resolution without spending everything you have accumulated to get divorced? Take the time to consider what you want, what you’re willing to accept, and how you want to get there. A good attorney, who is experienced in family law, can strongly advocate for you while avoiding incurring unnecessary fees and costs. However, if you have a situation involving children and their well-being is at risk, by all means protect the children and find an attorney with a strong track record in high-conflict family law cases and the areas that impact yours.
#2: Assess Your Assets:
Determine what assets you have. You should start looking at all of your financial accounts, life insurance policies, investment accounts, real estate, and any property you may own (cars, house, art, jewelry). For all of your accounts, I would encourage you to get account statements, log in information, and verify beneficiaries. Regarding property, it would be helpful to get Kelly Blue Book values for cars and toys (NADA may be necessary), to determine their values.
#3: Assess Your Debts:
Determine all of your collective debt. Any debt obtained during the marriage will be community debt; any debt incurred prior to marriage will be separate debt. There are some exceptions, but that is the general rule. You should get account statements for all of the debt. Student loans are one area that you should consider, as often these debts are incurred as a combination with part before and part after the marriage. Try to consider what the loans were used for. Not a wise financial decision, but I used part of my student loans to take a nice family vacation. In a circumstance like that, it can be easily argued that the debt is one of the community. Finally, as with your assets described in #2 above, you should also get statements and log in information for these accounts as well.
#4: Make a Plan:
I have written a couple of articles on making a plan, so please read those articles as well, but you need to have a plan to help you and your attorney achieve your goal. I really like the Navy Seal R.E.A.C.T., plan described in detail in my 10.3.20 blog, which stands for:
Recognize your reality
Evaluate your assets and position
Asses your options and outcomes
Choose a direction…and communicate it
Take action…get off the “X”
My final piece of advice, if divorce is a part of your 2021, is this: Divorce can be hard. As you’re taking stock of your assets and liabilities, I cannot overstate how important it is to identify and lean on your support system! Everyone’s squad looks different, so identify the friends and family you can count on for unconditional love and support as you go through this. When you identify, please keep in mind that I’m referring specifically to the people who will be PURE YOU. Let me be clear: Everyone will not. In every marriage, friends and family are shared…and in every divorce, people will pick sides. It’s natural, but painful nonetheless. Rethink your squad through the lens of this divorce. Your support system needs to be composed of people you can 100% count on for discretion and unconditional regard FOR THIS MOMENT IN YOUR LIFE…and beyond. Your need to count on your team for discretion, loyalty, and positivity. This is going to be emotionally and psychologically draining as it is, and having someone on your support team who betrays, leaves, or hurts you is not a distraction you want to invite. With the right attorney and loved ones, you will be on the journey toward starting something new.
Family law can leave you feeling overwhelmed, stressed, confused, depressed, angry, exhausted...all very normal reactions, but not a fun way to live. These feelings can also make you feel indecisive and paralyzed with doubt during what is a difficult time. Sadly, family law cases are not a short blip in the lives of legal parties; rather, cases drag on for large portions of a year and longer. In fact, some cases just never seem to end, with one post-decree motion filed after another; it can feel like it’s never-ending.
A July 2020 article in Forbes magazine shared how anyone can benefit from using a tried-and-tested Navy S.E.A.L method to take charge of a life ambush. R.E.A.C.T. is a simple acronym for five steps that empower a person to identify their situation and take action. No more feeling stuck. No more being a hostage to anxiety. No more feeling confused and unclear. Check it out:
Recognize Your Reality
It’s important to have an accurate, clear view of your current legal and personal situation. This is not as easy as it sounds...you need to take stock! Without true clarity, your feelings may be driven by falsehoods, and your actions may do more harm than good. Be honest in your assessment.
Evaluate Your Assets & Position
Take stock of your resources, both material and human….and be thankful! Evaluate your liabilities. Take this same inventory for the other parties impacted by your case. This strategic step will probably include asking questions of experts in finance, law enforcement, mental health, and family law. It should include collecting evidence and data to help you clarify your reality and eliminate biases.
Assess Your Options & Outcomes
Once you have a clear picture of your reality and have a strong sense of your assets and weaknesses, along with those of the opposing party, you can begin to assess the short-term and long-term options available to you...along with their outcomes. This will be critical for the next step of R.E.A.C.T.
Choose a Direction...and Communicate It!
Your evaluation of options and outcomes will lead you to a plan of action. Although plans should and will be adjusted as more information comes available over time, creating an initial, informed plan will take back some piece of mind from the torturous unknown. Once you have a plan, communicating it clearly with your attorney and support system(s) will be helpful in moving your case, and your life, forward!
Take Action...Get Off the ‘X’!
There is an undeniable satisfaction in action...taking charge of our lives. Waiting for the ‘perfect moment’ is a mistake. Waiting for ‘things to change’ is unlikely. Taking decisive action to implement your plan, even though doing so may be painful and difficult, is how you will move your life forward to a better reality. NOTHING is worse than where you are now...get off the ‘X’!
I hope you find this protocol as helpful as I did. During the chaos and fear of a family law case, feelings of helplessness and sadness can make things even worse. I hope that you benefit from the wisdom of the Navy S.E.A.L.S, who are experts in engaging effectively in the most dangerous battles.
While I have not posted recently, if you have read my blogs, you will see that I normally handle high-conflict custody disputes, which can be some of the toughest cases to handle. Today, I thought I would discuss a fairly new opportunity for couples that want to get divorced while avoiding negative animosity and saving significant money on legal fees.
In January 2020, Maricopa County approved a new procedure whereby parties can submit a Summary Consent Decree and avoid the litigation hassle. Normally, one party will file a Petition, then the other party will file a Response, and then the litigation process begins. In this new process, the parties will file a joint Petition and Response that essentially outline all of the parties’ agreement then uses this information to complete a Consent Decree (an Order that sets forth the parties agreements). Once the Joint Petition and Response are filed, you still have to wait the 60 days to file the Consent Decree, but once the Consent Decree is filed, the Court will sign it and the parties will be officially divorced. Sounds simple enough.
While this process is a lot easier and highly encouraged, it is recommended that you use an attorney who knows family law to assist you in the process to make sure your Decree is done right. I deal with a significant number of cases that have to go back to Court to fix or change poorly drafted Decrees or to obtain modifications that were not considered originally. I suggest avoiding the additional time and expenses by making sure it is done right the first time.
Another point about this process to consider is that if you and your spouse are in agreement on the majority of issues, but not all, meeting with an attorney (who acts as a mediator rather than representing either party) to negotiate the final item or two can be helpful. Since this is a fairly new process, I’m not sure what other attorneys are doing, but Castle Law, LLC. has developed a service specifically for this new process. It includes two one-hour sessions to finalize the agreements, draft all documents, and submit them to the Court for a flat fee of $2,500. To put this in perspective, our normal retainer is $5,000.
As a family law attorney, I can tell you there is a significant cost to litigation that is not just monetary. This new process, if successful, can save you and your family a lot of heartache and some money.
Cheers to an amicable divorce!
If you have read some of my prior blogs, you know that I’m a BIG advocate for having very detailed parenting plans and enforcing them to the letter unless (or until) you and your co-parent can effectively collaborate in a child-centered manner. Our recent pandemic, however, is going to change how parenting plans are implemented. I would hope that effective co-parents would be able to work this out without any disruption in their or the children’s lives, but in my world of high conflict custody disputes, this is unlikely.
First, I have to include this disclaimer: This is not legal advice, and you are encouraged to consult with your attorney (if you have one), or contact one, to get advice specific to your situation before taking any drastic action.
Second, I live in Phoenix, Arizona where they have declared a state of emergency to force bars, restaurants and city services to close; and schools and universities closed last week. Residents are encouraged to remain in their homes, and many businesses have made arrangements, where they can, to have employees work from home. We have not gotten to the point of being policed and forced to quarantine strictly, but there has been a marked shift in how we are living. So, how does this impact parenting time?
As expressed above, one would hope that parents would be able to work this out and avoid conflict, but in high conflict cases this is unlikely. This is a judgment call, but there very well could come a point at which transitioning a child is not healthy or poses too great of a risk to justify the potential harm to the children. I cannot say with any certainty, but as this moves forward, I do think judges are going to give a parent more leniency who elects to keep the children out of reasonable fear of contracting the virus. This does not mean they will get a free pass, but it does mean the courts are unlikely to take any significant action against the violating parent. My advice to the violated parent: You may want to consider letting this one slide.
As with any case, there are a number of factors that will have to be considered and this article cannot address all variables. Right now, stories are emerging of first responders and medical professionals who are living in alternative housing to protect their own kids during this time. If a parent works in a profession that is in high contact with the public, then considering shifting physical care of the children during this time may be prudent (minimum of two weeks). Additionally, homes with elderly grandparents or immuno-compromised family members may wish to isolate for self-preservation. Similarly, if a parent has ANY knowledge that he or she may have come in contact with an infected person within the last two weeks, they should want the child(ren) to stay with the other parent. Remember, the idea is to reduce the spread and try to avoid putting yourself or the children in any danger.
In a situation where shared, in-person parenting time becomes unsafe for one parent, there are several things the parent keeping physical care of the children could do to ease the disruption. The easiest thing to do is schedule a video conference (try FaceTime, Google Meet, Zoom, etc.) to maintain emotional connections safely. If schedules to chat live just don’t line up cleanly, Marco Polo is a fabulous, asynchronous video chatting app that works around that by allowing one party to record a video message so the other can read when they are able. Another wonderful distance tool is Netflix Party. This Google Chrome extension allows two people to watch a movie together while physically apart...and it has a chat feature to allow party members to talk as they watch. This can also be a wonderful time to let children create family and event scrapbooks to realize emotional connections in the physical world. You can go old school with this activity, or you could leverage all of your photo and video files on your phone through products like Shutterfly and Smilebox. Grandparents can benefit from these projects too!
This pandemic should not be used as an opportunity to harm or punish the other parent. In the face of uncertainty and anxiety, we need to focus on the well-being of our children in making parenting decisions. Wishing everyone the best during this challenging time.
As promised, today’s blog will laser in on another piece of Marriage Story and connect it to real-world family law issues in Arizona. This installment is about...RESIDENCY! At the beginning of the film, this issue feels innocuous, but viewers see how it is pivotal as the case unfolds. Residency is one of the most critical elements of this film, so I will explore how residency dictates divorce and parenting time realities in New York vs. Los Angeles...and how that plays out in Arizona.
In any divorce, where the suit is filed matters! This sets the case’s jurisdiction (location of the fight) that can significantly impact the case from beginning to end. When children and parenting time are involved, this is a critical determination in deciding where the child will reside. Our standards are not set nationally for family law! Each state has its own unique statutes that will set the ‘rules of the game’ for a case. Under the state’s umbrella, each jurisdiction (county) will have its own rules and social mores that impact the process. First and foremost, US News & World Report found in 2019 that only two states earned an A about honoring the principle of equal parenting time...and the average score in the nation was a D+. Additionally, The jurisdiction will likely maintain control over the case, presiding over all subsequent post-decree disputes regarding parenting time and relocation would be decided by that court. Like I said, this is a big deal; jurisdiction determines the arena of this fight for life. This is why many clients and attorneys engage in ‘forum shopping’, trying to leverage advantage for their cases by establishing the fight in the location friendliest to their arguments.
All states have requirements that must be met for jurisdiction; California’s rule is six consecutive months plus the three most recent months prior to the filing. Conversations in the movie regarding where Nicole went to high school, where she wanted to spend a year, where her family lives...none of those are relevant to establishing the jurisdictional requirement to file in California. In Arizona, residential requirements include proof of residency for at least 90 consecutive days...barring an emergency situation involving child safety. Setting aside these technical issues, let’s focus on the general issue of how the location of filing can affect the process and the outcome.
Assuming Nicole qualified, the movie doesn’t clearly illustrate the hardship the jurisdiction, set by Nicole’s strategy to file in LA, has on Charlie’s life. At the end of the movie, due to his need to split time between his work in NY and his son in LA, Charlie essentially loses his theater company and Broadway show and relocates to LA to take a position with UCLA. Now, we have no idea of the long-term financial or professional impact of this decision, but it is clear that Charlie’s decision not to fight the jurisdiction was the factor in his case that had the single largest impact on the rest of his life as a parent and professional. What lesson does Charlie’s story have for people on the precipice of divorce? The second a spouse files in a jurisdiction that runs counter to your interest...FIGHT LIKE HELL!. Furthermore, whenever an action is filed that is a marked departure from prior discussions/agreements, interpret that as an emergency and hire a competent attorney immediately.
Project forward. Consider how jurisdiction continues to impact Charlie in the subsequent years (spoiler alert: the issuance of a divorce decree is rarely the last time divorcing parties with children are in court). The court with jurisdiction will impact all future custody, parenting time, relocation, and child support issues until the children are adults.
My advice, even if you have every reason to believe you are going to have an amicable divorce, consult attorneys and find one that is a good fit for you should circumstances escalate. The divorce process seems to bring out the worst in people, and you need to know your rights and be prepared in the event your spouse elects to take an aggressive path. One of the biggest mistakes you can make also affected Charlie; don’t be caught by surprise, unsupported, against a deadline you’re not prepared to effectively address. Also, when children are involved, it is very important that you try and maintain a focus on what is best for the child. In subsequent blogs, I will address some of the concerns raised in the movie about parenting and co-parenting behaviors.
Warning: This contains spoilers about Marriage Story.
I really had no desire to see the award-winning Marriage Story. None. In the same way that a doctor might have zero interest in watching Grey's Anatomy, the last film this family lawyer wanted to watch on Friday night was a movie about divorce. Last night, though, as sometimes happens in my shared-remote life, that’s exactly where I found myself. Marriage Story didn’t offer me the escapist adventuring I love most about movies, but it did incorporate many key issues central to the majority of divorces in this country. So, in an ironic twist, I will be analyzing and expanding on different issues in this movie I didn’t want to watch because they have interesting, powerful implications for divorcing parties.
It is important to note that while divorces are VERY common, rarely are divorces the same; while they all have similar characteristics, they are all unique. These blogs will offer one perspective, but they are not meant to be a substitute for speaking with an attorney about your case specifically. That said, Marriage Story offered fascinating and important considerations about all-too-common issues that I regularly help my clients navigate. Some scenes provided explicit exploration of how issues like residency, parenting time, infidelity, and asset division are addressed in the divorce. Other scenes offered too-fast, overly-vague intimations about critical topics like judge and attorney qualifications, subsequent relationships, and co-parenting that beg for further exploration. Today’s blog will laser in on the parenting evaluation piece of the film and connect it to real-world parenting evaluations in Arizona.
THE PARENTING EVALUATION.
Adam Driver’s character, Charlie, is Skyping with a decorator to adorn his apartment with cozy furniture, a welcoming rug, framed artwork from his son...and (I think we can all agree) way, way too many plants. The Whole Foods paper bag sits on the table as he roasts organic vegetables and prepares a dinner with enough nutrients to sustain a child for a month. What is going on here...and did he really have to work so hard?, And what power does that the kooky, tap-water drinking, socially-awkward evaluator wield?
In Arizona, full parenting evaluations are only ordered when:
1. A party requests one
2. Legitimate fitness concerns exist
3. There is no objection from the other party
4. One or both parties can afford it
During an evaluation, the evaluator observes the interaction between a parent and child. They look to see if the parent is aware of, and responsive to, a child’s needs. They survey the environment to verify it is safe and free from drugs, unsecured weapons, and poor judgment.
These evaluations are never paid for by the state in civil cases, as they are exceedingly expensive, ranging from $6,000-$10,000 each. If there is an objection, and there isn’t enough of a concern or financial resources to pay for it, the judge can decline to order. These evaluations can occur in the parent’s home, in a psychologist’s office, or a combination of the two. They can solely include observation of the parent and child interacting...or they could also include personality testing (like the MMPI) designed to determine the presence of mental illnesses that could negatively impact their ability to parent. In the film, we get a brief glimpse of psychological testing for both Nicole and Charlie.
The purpose of a parenting evaluation is to influence a judge’s decision about what parenting time is in the best interest of a child’s growth and development..and which parent should have legal decision making authority. Parenting evaluators are independent contractors, used by litigants in court, to support their respective positions. They are typically trained mental health providers. Their job is to convey the information procured during their assessment activities. The vast majority of the time, appropriate or not, parenting evaluators will also make a recommendation to the court addressing legal decision making and parenting time.
Back to our movie. We never get to see the evaluator’s report...but we learn that the final parenting time split approved by the judge is 50/50 (although Nicole’s attorney negotiates her client an extra 5% on principle). The clean, safe home and healthy dinner offered by Charlie checked some boxes. His redirection of his son when he doesn’t want to help with dinner certainly checked some more. The weird knife incident, you ask? I hear you. Certainly painfully awkward, but not enough, in aggregate with all other evidence of Charlie’s evaluation (most of which we didn’t see) to deny his equal parenting time. Additionally, we did not witness Nicole’s evaluation, which would equally play into any judge’s decision regarding legal decision making and parenting time.
Parenting evaluation was just one interesting piece of this movie. Check back for my next Marriage Story blog, which will focus on the HUGE role that establishing residency played in Charlie and Nicole’s divorce...
Jason Castle is a family lawyer who specializes in high-conflict cases. He's also a former prosecutor & social worker. Hear his latest divorce thoughts!