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Family & Divorce Law – Featured Articles

After a Florida Divorce, Who Gets to Claim the Child as a Dependent?

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For couples who are unmarried, divorced or separated, determining which parent can claim your child as a dependent can be complicated. Essentially, only one parent can claim the child as a dependent each year. The IRS monitors this very closely by checking social security numbers to make sure that both parents aren’t taking advantage of the exemption in the same year.

Regardless of whether or not the parents come to an agreement on this issue, they must abide by the rules and regulations set forth by the IRS regarding dependency exemptions.

In general, the parent who provides the most financial support for the child that year is entitled to claim the child as a dependent, unless that parent relinquishes this right by submitting IRS Form 8332, or if there is a court-administered divorce decree or separation agreement stating otherwise. Here is a brief explanation.

How the Dependency Exemption is Typically Allocated After a Divorce

Couples are allowed to come to an agreement on who will claim the child as a dependent each year. However, if they cannot come to an agreement, the court will make the decision for them based on a variety of factors. Here are three primary scenarios:

  1. If you have a court-approved maintenance agreement, the parent with whom the child resides, or who has primary custody during the year, is entitled to claim the child as a dependent, unless he or she waives this right to claim the child as a dependent in a divorce decree, separation agreement, or with IRS Form 8332.
  1. If you are unmarried, lived with the other parent for the last half of the year, or you do not have a court-approved child support or child custody agreement, then the parent who provides more than 50 percent of the child’s financial support is entitled to claim the dependent for that year.
  1. If you and the other parent share custody and provide financial support for the child on an equal basis, the parent entitled to claim the child as a dependent becomes much more difficult to determine. Often, the courts will have to make the decision based on what is in the best interest of the child. For more information on who is entitled to claim the child as a dependent in this scenario, you can consult IRS Publication 501, Exemptions, Standard Deduction, and Filing Information, or an experienced family law attorney who can clarify the applicable rules for you.

Contact a Florida Family Law Attorney

Your finances may dramatically change after a divorce. At Jodat Law Group, P.A., we can help you protect your financial health and plan for the future during this difficult period in your life. Contact your Bradenton & Sarasota divorce attorneys at 877-912-2671 or contact us to schedule a free consultation online. We will evaluate your case and explain your financial options.

A Guide to the Child Support Calculator in Arizona 2012

The child support calculator is based off the Arizona Child Support Guidelines. The goal of the Arizona Child Support Guidelines is to determine the duty a person has to provide all reasonable support for that person’s natural and adopted minor, unemancipated children.
The child support calculator that is referred to in this article can be found at: www.azcourts.gov/familylaw/2011_Calc.aspx

Using the Arizona Child Support Calculator

When first looking at the child support calculator there is a space for Petitioner and Respondent’s names, the Petitioner is the party who first filed the original matter. For the purposes of the child support calculation there is no advantage or difference between the two.

Our law firm can help you with Child Support Issues, get more information here.

The calculator next asks for Child Details. The first drop-down box asks about the time-sharing arrangement. One of the most important factors for child support is the amount of time each party has with the minor child. The more parenting time you have with the child the more expenses you incur and the guidelines take that into consideration. The parenting time arrangement can be agreed to by the parties in a stipulation or will be ordered by the Court after a final determination has been made. One of the many benefits of having an experienced family law attorney from The Cantor Law Group represent you in your family law matter is that the attorneys will aggressively advocate for the parenting time arrangement that is in your child’s best interest. The Courts in Arizona will consider a list of factors when determining parenting time and custody. Trying to navigate that path unrepresented can lead to unforeseen pitfalls, especially when the opposing party has retained an attorney who is familiar with procedures and relevant law. The matter before the Court will need to include Parenting Time, as a Petition to establish Paternity and Child Support will not determine parenting time.

After entering the time-sharing arrangement the calculator will ask you to input your children’s names and dates of birth that are common to you and the opposing party. You would not input children from another relationship; this will be accounted for later. The date of birth is relevant as there is a 10% increase in child support for a child over the age of 12, given the increasing costs of raising a teenager. In addition, this will consider that typically the support obligation will end when the minor child reaches the age of 18. There are some exceptions, including if the child is still in high school, but under the age of 19 or if the child has mental or physical disabilities.

The next factor to be considered on this calculator is the income of the parties. The first line will require real or estimated knowledge of both parties income. This can be calculated by hourly wage, monthly income, or yearly income and uses the gross income of the parties. Any Court-ordered spousal maintenance paid or received by the parties will affect the calculator, regardless if the maintenance is to or from the opposing party. The next factor the calculator will determine is if there are other child support obligations that have been court-ordered, or if there are other natural or adopted children for which there is no court-ordered support.

The calculator should now have the information needed to determine the adjusted gross monthly income of both parties, and what the basic child support obligation should be for the child or children. While inputting what you believe to be both parties gross income is one of the easier tasks in this exercise, determining the actual gross incomes of the parties and proving that to the court can be a much more difficult task. There are occasions where a party has a cash business and their tax returns do not accurately represent their income, or the person has recently quit a high paying job in an effort to thwart future obligations. The attorneys at The Cantor Law Group have had great success using the discovery process to determine the real gross income of opposing parties who are self-employed or have cash businesses. The Cantor Law Group will, where appropriate, aggressively advocate that the Court impute the income that the opposing party should reasonably be earning in the case they resign from a higher paying job, accept a lower paying position, or are currently unemployed.

Petition for a Modification of Child Support

There are currently a significant amount of child support orders from the past ten years that do not accurately reflect the financial situations of the parties. As the payor it is your responsibility to petition for a modification of child support. Given the current financial climate many people are earning significantly less than when their child support was ordered through no unreasonable conduct of their own. The child support order is modifiable if there has been a significant and ongoing change regarding the finances of a party. The attorney’s at The Cantor Law Group can help determine if you could qualify for a modification.

Our law firm can help you with Child Support Issues, get more information here.

How the parties’ gross income is determined is one of the most important factors in the child support you will pay or receive. Having an experienced family law attorney guide you through this process and advocate for you and your children can help ensure that all of the relevant factors will be addressed. The cost of incorrectly determining a child support obligation can be financially crippling.
The next set of factors the Court will use are the necessary additions to the basic support. This will consider the upward adjustment for any child over the age of 12, the cost of medical, dental, and vision insurance paid by either party, the monthly childcare costs for the children, extra educational expenses paid, and extraordinary expenses paid for children who are gifted or handicapped. It should be noted that the cost of the insurance premiums should be for the children in common only, not to include the parties themselves.
Finally, the calculator will account for any arrears payments, and will then determine the party to pay the child support and the amount.
A Court has the discretion to deviate from the Child Support Guidelines; however, historically a significant deviation is unlikely without a showing of good cause.

Get Legal Advice

The purpose of this calculator is informational and educational only and does not constitute legal advice. The amount of child support a court will order for any particular case may be different from the amount estimated by the calculator. The court has the final authority to determine the amount of child support awarded. The amount yielded by this calculator is only an estimate and is not a guarantee of the amount of child support that will be awarded. All of the factors listed above are relevant to the Child Support Calculations and this Summary is not meant to be an exhaustive list of the relevant facts or factors in determining child support in accordance with the guidelines. This summary is meant to inform parties of the major factors in determining child support and some of the complex issues that can arise, as well as a guide to using the child support calculator.

To determine the relevant factors for your matter, and to obtain legal advice regarding child support please consult one of the experienced Family Law attorneys at The Cantor Law Group. Call 24/7 602-254-8880.

Divorce Attorneys Find New Way To Catch Cheaters

Divorce attorneys no longer need to hire private investigators to get the dirt on spouses who may be cheating.

All they need now is a computer.

Liz Steele, of Mesa, is going through a divorce and she has no problem with her attorney looking up everything he can on her husband.

“I have nothing against lawyers digging and doing their job,” said Steele. “The more information, the better.”

Much of what an attorney needs can be found online, in places like Facebook and MySpace.

A growing number of divorce attorneys are turning to social networking sites to catch cheaters.

“It pops up and there are pictures of the new girlfriend,”  “They’re kissing and hugging. They’re on a beach by themselves.”

According to the Cantor Law Group, the sites are also helpful determining whether a spouse is going on a wild spending spree, buying expensive items when the spouse claims to have no money.

“All of a sudden there are pictures showing how they bought their new friend jewelry or they are boasting about a new car,”.

It’s surprising what can be uncovered online, and it sure makes the  job a lot easier.

“It happens more often than you can believe,” “It’s amazing how brazen people get.”

Social Security Benefits and Divorce

Maybe you all know this already, but I have had several cases where the issue of dividing social security benefits has been raised (especially in cases where one spouse earned significantly more than the other during the marriage).  Below is a brief summary, and follow-up website to provide clients with should they ask these questions.

How will my divorce affect my pension benefits?

If you are divorced, but your marriage lasted 10 years or longer, you can receive benefits on your ex-spouse’s record (even if he or she has remarried) if:

  • You are unmarried;
  • You are age 62 or older;
  • The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work; and
  • Your ex-spouse is entitled to Social Security retirement or disability benefits.

http://www.peoples-law.org/Family/divorce/property/divorce_affect_on_pension.htm

If you remarry, you generally cannot collect benefits on your former spouse’s record unless your later marriage ends (whether by death, divorce or annulment).

If your ex-spouse has not applied for retirement benefits, but can qualify for them, you can receive benefits on his or her record if you have been divorced for at least two years.

If you are eligible for retirement benefits on your own record we will pay that amount first. But if

  • the benefit on his or her record is a higher amount, you will get a combination of benefits that equals that higher amount (reduced for age).
  • you have reached full retirement age and you are eligible for a spouse’s benefit and your own retirement benefit, you have a choice.

You can choose to receive only the divorced spouse’s benefits now and delay receiving retirement benefits until a later date. If retirement benefits are delayed, a higher benefit may be received at a later date based on the effect of delayed retirement credits.

If you

  • continue to work while receiving benefits, the retirement benefit earnings limit still applies. If you are eligible for benefits this year and are still working, you can use our earnings test calculator to see how those earnings would affect your benefit payments.
  • will also receive a pension based on work not covered by Social Security, such as government or foreign work, your Social Security benefit on your ex-spouse’s record may be affected.

The amount of benefits you get has no effect on the amount of benefits your ex-spouse or their current spouse may receive.

If you need information about benefits your ex-spouse can receive based on your record, please read Benefits for your divorced spouse.

http://www.socialsecurity.gov/retire2/divspouse.htm

Grandparents Can’t Prevent Move by Custodial Parent, Court Holds

A law giving grandparents visitation rights in divorce cases doesn’t allow them to block a custodial parent form moving out of the state, taking the child along, the state Court Of Appeals ruled Tuesday.

In a unanimous decision, the judges said the ability to prevent a move is limited to the non-custodial parent.

Stanley Murray, [a Cantor Law Group attorney] who specializes in grandparental visitation rights cases, said the ruling effectively undermines the whole 1983 law, which first gave grandparents the right to see their grandchildren after a divorce.

Murray said he expects to ask the state Supreme Court to review the decision. But he conceded it may take legislative action to guarantee the rights lawmakers first granted 24 years ago.

That law came at the behest of grandparents who complained a parent who got custody of a child after a divorce would deny access to the former spouse’s parents. They argued children were being unfairly denied access to extended family.

The law says courts can grant grandparents visitation rights if a judge determines it is “in the best interest of the child.” Courts are required to consider various factors, ranging from the historical relationship between the grandparent and the child to the reasons the custodial parent is denying visitation.

The case involves Kiley Sheehan, who was awarded custody of a child after her divorce. The child’s grandmother, Lou Ann Flower, subsequently sought visitation time, which a trial judge awarded over the mother’s objections.

Two years ago, though, Sheehan announced she would be going to Indiana to care for an ailing relative. Flower asked a Maricopa County Superior Court judge to prevent the move, saying the sole purpose of Sheehan’s action was to prevent visitation.

By the time the judge held a hearing, Sheehan had permanently moved to Indiana.

Murray, representing the grandmother, said divorce laws say a custodial parent who wants to relocate has to give notice. The law also permits a judge to forbid relocation if it’s in the child’s best interests.

But appellate Judge Patricia Norris pointed out the statute refers only to “parents.” That, Norris said, means grandparents have no such rights.

“The court’s already determined it’s in the interests of the child to have access to the grandparents,” Murray said. “How can the parent just take off and not have to worry about it any more?”

Murray said lawmakers could fix the problem. “I’m hoping the legislature would do that,” he said.

If your case involves any custody issue, click on “CONTACT US” or call The Cantor Law Group for a free initial consultation today!

Arizona Court Must Contact Out of State Court that had Entered Child Custody Order Before Attempting to Modify that Court’s Order.

In our highly mobile society wherein people and their families relocate from time to time, it is not uncommon for a party to attempt to modify or enforce an out-of-state divorce decree or paternity order in Arizona. In the case of Melgar v. Campo, 1 CA-CV 06-0408 (filed July 26, 2007), an issue arose over whether the Arizona Court could modify a North Carolina child custody order. The mother had moved to Arizona with the child without telling the father, who had been awarded custody of the child in the North Carolina Order. Father remained in North Carolina and had to hire a private detective to finally locate her and the child in Arizona.

The father then registered the North Carolina Order in the Maricopa County Superior Court, in Phoenix, Arizona, and filed a Petition seeking to enforce the Order so that the child would be returned to him. The Arizona Court held an evidentiary hearing and modified the North Carolina Order, instead of enforcing it, and granted sole custody to the mother. Father appealed the ruling to the Arizona Court of Appeals.

The Court of Appeals applied the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which had been adopted by both Arizona and North Carolina, to determine whether the Arizona Court could modify the North Carolina order. The Court held that since the purpose of the UCCJEA was to resolve issues concerning interstate custody disputes, the Arizona Court should have contacted the North Carolina Court first to determine if the North Carolina Court would relinquish its “continuing, exclusive jurisdiction” so that the Arizona Court could then modify the order. Since the Arizona Court had failed to do so, the modification order was vacated, as Arizona did not have jurisdiction (authority) to modify the out-of-state order. The case was sent back to the Maricopa County Superior Court for further proceedings.

Arizona Court of Appeals Upholds Use of Maricopa County Spousal Maintenance

A recent decision by the Arizona Court of Appeals, Division One, upheld the use of the Maricopa County Spousal Maintenance Guidelines for the calculation of a spousal maintenance award, so long as the factors listed in A.R.S. 25-319(B) were considered in making that award. The Guidelines, which have never been officially adopted by court rule, provide a method of calculating the amount and duration of a spousal maintenance award by way of a formula derived from an historical review of randomly selected prior spousal maintenance awards. They have been used by family law attorneys as a useful estimate of the possible spousal maintenance award in a given case and, indeed, some Maricopa County Superior Court judges have incorporated them into their spousal maintenance awards. The formula is calculated by taking the difference between each spouse’s gross monthly income and multiplying that result by a factor of .015, then multiplied by the years of marriage. For example, suppose husband and wife have been married for 15 years. If the husband earns $5,000.00 gross per month and the wife earns $1,500.00 per month, the difference of $3,500.00 is multiplied by .015 and then by 15 (years) , then under the Guidelines calculation, and assuming the relevant statutory factors for an award of spousal maintenance are met, wife would be entitled to an award of $787.50 per month. The duration of that award is then calculated by applying a factor of 0.3 and 0.5 to the length of marriage to determine the range of the duration of the award, in this case from 4.5 to 7.5 years.

The case is Cullum v. Cullum (CV 06-0038, Ariz App. Div. I) and by clicking on this link you can review the entire text of that opinion.

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