What is a parenting plan

Recently, South Carolina Family Courts started requiring parents involved in contested child custody actions to prepare and present a parenting plan to the Court at hearings.  So what is a parenting plan?  Essentially, the parenting plan is each parent's proposed plan that answers the questions about who they propose would have custody (father, mother, or some form of joint custody), how decisions will be made for the children going forward, and a placement plan that describes the time that the children will spend with each parent.Attached is a PDF version of the parenting plan used in South Carolina Family Courts.

What Impact will Adultery Have?

When consulting with potential clients about their divorce, I am often asked the following hypothetical question:

I would like to start dating again.  What impact will it have on my case if I start seeing someone?

In other words, what impact will your spouse proving you have had an adulterous relationship have on your divorce case?

1. Divorce

The first place you should look is at the grounds for divorce.  SC Code §20-3-10(1) allows for a divorce on the grounds for adultery.  I wrote about the proof required for establishing a case of adultery in a previous post.  By establishing the proof necessary for adultery, your spouse can divorce you without having to live separate and apart from you for the no fault 12 month period.Most of the potential clients I meet with wouldn't have a problem with this aspect of adultery because it means they are potentially getting their divorce sooner and then they can openly or legally move on with their new relationship.

2. Alimony

The second major issue deals with alimony.  SC Code §20-3-130(C) sets out a list of factors that the family court judge must consider and weigh when determining whether to award alimony to one of the spouses in the case.  Subsection 10 of that section states that, "marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage[.]"  Adultery is considered marital misconduct and fault so it can be a factor weighed against you if your spouse is seeking alimony.On the other hand, if you are seeking alimony, you may barred from receiving alimony due to your adulterous relationship.  See SC Code §20-3-130(A), "No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties."

3. Property/Debt Division

The third area to consider is the area of property and debt division.  SC Code §20-3-620(B)(2) states, "marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:(a) entry of a pendente lite order in a divorce or separate maintenance action;(b) formal signing of a written property or marital settlement agreement; or(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties[.]"So depending on when the adultery occurred and the impact on the financial or economic circumstances of the parties, there could be an adjustment made to the equitable apportionment of marital assets and debts.

Ten Facts about Adoption-Related Tax Savings

Adoptions are an exciting time in a family, but they can also be extremely expensive.  If you recently adopted or attempted to adopt a child, you may be eligible for a tax credit. You may also be eligible to exclude some of your income from tax. The IRS has recently released a list of 10 Facts about Adoption-related expenses and how they can impact your tax bottom line.1. The maximum adoption tax credit and exclusion for 2012 is $12,650 per eligible child.2. To be eligible, a child must generally be under 18 years old. There is an exception to this rule for children who are physically or mentally unable to care for themselves.3. For 2012, the tax credit is nonrefundable. This means that, while the credit may reduce your tax to zero, you cannot receive any additional amount in the form of a refund.4. If your credit exceeds your tax, you may be able to carryforward the unused credit. This means that if you have an unused credit amount in 2012, you can use it to reduce your taxes for 2013. You can carryover an unused credit for up to five years or until you fully use the credit, whichever comes first.5. Use Form 8839, Qualified Adoption Expenses, to claim the adoption credit and exclusion. Although you cannot file your tax return with Form 8839 electronically, the IRS encourages you to use e-file software to prepare your return. E-file makes tax preparation easier and accurate. You can then print and mail your paper federal tax return to the IRS.6. Adoption expenses must directly relate to the legal adoption of the child and they must be reasonable and necessary. Expenses that qualify include adoption fees, court costs, attorney fees and travel costs.7. If you adopted an eligible U.S. child with special needs and the adoption is final, a special rule applies. You may be able to take the tax credit even if you did not pay any qualified adoption expenses. See the instructions for Form 8839 for more information about this rule.8. If your employer has a written qualified adoption assistance program, you may be eligible to exclude some of your income from tax.9. Depending on the adoption’s cost, you may be able to claim both the tax credit and the exclusion. However, you cannot claim both a credit and exclusion for the same expenses. This rule prevents you from claiming both tax benefits for the same expense.10. The credit and exclusion are subject to income limitations. The limits may reduce or eliminate the amount you can claim depending on your income.

What does Twitter Archive mean to your divorce or custody case?

What will Twitter Archive mean to your case?  Social media evidence has come into use greatly over the last couple of years.  And, why not?  People record and publish their every move throughout the day - the mundane and of course the exciting highlights.But, many people fail to use common sense when they post to social media.  They forget that they are embroiled in a highly contested custody case or a divorce matter where they have been accused of being a drunk or having an affair.I've written about social media use in trial before (here and here) so you can find out how these things can be used against you, but the saving grace before was that it was difficult to get companies like Twitter and Facebook to comply with subpoenas to provide all of your tweets or status updates or things were only archived for public viewing for a short period of time.  However, now Twitter Archive allows each individual member of twitter to download their entire tweet history back to when they joined Twitter.  So as part of a Request to Produce a copy of your Twitter Archive could be requested by your spouse and every tweet you sent out could be used against you in your case.

Who Gets to Claim the Children on Taxes?

In a custody case, one of the issues involved in many negotiations is who will get to claim the children as dependents on their income tax returns.  This is called the dependency exemption.  Children can be quite valuable when it comes to filing taxes and how much a person will owe or receive back as a refund.  Many clients, especially lower income clients who receive the Earned Income Tax Credit can receive thousands of dollars back which is more than several months of income from their job.South Carolina Family Courts have the authority to determine which parent gets to claim the children on the income tax return (SC Code Ann. §20-3-130(F)); however, the Court will not be able to allocate or distribute this exemption unless it is specifically asked for or allowed to be tried as an issue without objection from both parties.Typically, the custodial parent will be awarded the dependency exemption; however, if the non-custodial parent is allowed to claim the dependency exemption for one or all of the children, the custodial parent will be required to complete and execute IRS Form 8332 each year and that form must be included with the non-custodial parent's tax return when he/she files it.But what if you don't have a court order - before anyone has filed for custody?  The IRS has a five part test for determining which parent may claim the dependency exemption:

1. Relationship;
2. Age;
3. Residency;
4. Support;
5. Joint Return.

The Relationship test means that the dependent you are claiming is your son or daughter (natural or adopted), a foster child, brother, sister, half-brother, half-sister, or a descendent of any of them.The Age test simply means that your child is under age 19 at the end of the year and younger than you (or your spouse) or they are a student under the age of 24 at the end of the year and younger than you or your spouse.  Finally, regardless of age, you may claim a child if they are permanently and totally disabled.To meet the requirements of the Residency test, your child must have lived with you for more than half the year. There are some exceptions for temporary absences such as illness, education, military service, or vacation.The Support Test requires that you provided at least one-half of your child's support for the year and the child did not provide more than one-half of his/her support for the year.  Most of the time this is not an issue; however, if your child works and earns enough income to support himself/herself, then you may lose this credit.The Joint Return test means that the child cannot file a joint return for the year.

Tie Breakers

Absent a Family Court Order outlining who can claim the children, it is entirely possible that both parents would qualify to claim the child as a qualifying dependent using the dependency exemption.  So who would get to claim the child in that case?

• If the parents do not file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.
• If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year.
• If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year, but only if that person's AGI is higher than the highest AGI of any of the child's parents who can claim the child. If the child's parents file a joint return with each other, this rule can be applied by dividing the parents' combined AGI equally between the parents.

Adultery: What Proof is Required

One of the most common threats I discuss with prospective clients is framed in one of two ways:

1. What do I need to be able to show to prove my spouse is having an affair?  or,
2. My spouse is threatening to file for divorce on adultery grounds, can he/she do that?

When this is the case, my initial instinct is to believe that the proof of such an affair is thin at best or non-existent at worst.  Perhaps a the prospect has caught the spouse engaging in an "emotional affair" with an old classmate on Facebook that expands into text messages or telephone calls or maybe it is a internet pornography addiction.So what level of "infidelity" is required to substantiate a divorce on the ground of adultery in South Carolina?South Carolina law requires that the spouse seeking a divorce on the ground of adultery to show their spouse had the (1) inclination (or motive) to have an affair and the (2) opportunity to have an affair.  Inclination can be proven by showing the text messages, telephone calls, dates, public displays of affection, and so forth.  But that isn't enough.  We must also show that the offending spouse had the opportunity to complete the affair.  In our fact patterns above, our proof of opportunity is lacking.  While there may be some bad behavior going on, there isn't proof of an affair.The other side of the coin is this: the law doesn't care what your spouse was doing while they were alone with their girlfriend/boyfriend, as long as they were alone for a time long enough for the affair to occur.

How to File Your Taxes

It's January and you're starting to get your W-2's, 1099's and other tax documents in the mail and you're ready to file your taxes.  You may have been through a divorce in 2012, contemplating divorce, or you may have received a final decree of separate support and maintenance but haven't been divorced yet.  The question comes up often about what filing status you should use when you prepare your tax returns: married filing jointly, married filing separately, head of household or single.There is often a benefit to filing married filing jointly or as head of household rather than filing married filing separately or single.  I'm sure people file with the incorrect status every year so they can get a larger refund or have to pay less in taxes.  Here's how to figure out the status you should file:

You filed for divorce in 2012 but the divorce has not been finalized and there is no final order of separate maintenance.

Since you are still married and there has been no action for separate support and maintenance filed, your options for filing status will be limited to married filing jointly or married filing separately.

A Final Order of Separate Support and Maintenance was entered in 2012

Since you have been issued a final order of separate support and maintenance you are still married, so you have the option to file married filing jointly, married filing separately, or head of household if you meet the additional requirements for that filing status.

You were divorced in 2012

Your marital status on December 31 is the determining factor for your tax filing status for that year.  Even if you were married the majority of the year, but you were divorced sometime in 2012, you must file either single or head of household (if you meet the additional requirements).

What Goes in my Affidavit?

Family court cases typically get kicked off with a temporary hearing.  I have written about temporary hearings here, here, here and here.  At these temporary hearings, there is typically no testimony, very short oral arguments by the attorneys, submission of affidavits and exhibits for the judge to review and then the judge renders a decision.  In fact, Rule 21(b) of the South Carolina Family Court Rules states that "evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary."Many times courts allow the attorneys an opportunity to make a brief argument on behalf of their clients, but there have been some occasions where the court advises that they do not have time for arguments and they are only going to consider the pleadings, affidavits and financial declarations in their temporary decision.  Needless to say, the content of your affidavits are extremely important.  When it comes to affidavits there are two main types: the client's affidavit and supporting affidavits.

The Client's Affidavit

Here are some things I try to focus on when helping clients prepare temporary hearing affidavits (or affidavits for other hearings):The first set of tips has to do with the format.  I would recommend having a type-written affidavit using a normal 12-point font with double line spacing to make the affidavit easy to read.  I know how frustrated I can get reading tiny fonts, bad handwriting, or tightly spaced wording (typed or not) and I can only assume that judges also have a more difficult time reading these kinds of affidavits.Next, consider the content.  I usually ask clients to have a brief history of the marriage.  Beginning with when and how you met, began dating, and some information about the marriage.  Then, we move into the reason for the separation and what led up to the divorce proceedings.The next step is to address the contested issues and I like to organize them according to my client's priorities.  Typically, the issues of custody and visitation top the list.  You should describe your involvement as a parent, who primarily takes care of the children, what the routine looks like and what your plan would be if you were awarded custody of the children.  You should also discuss the role your spouse has played in the lives of your children.  Also, consider what kind of visitation you would want your spouse to receive and how you are going to encourage the relationship between the children and the non-custodial spouse.  You should also describe to the court concerns you have about your spouse, but this is not an opportunity for you to trash your spouse.  For example, has he/she been involved in an adulterous affair and involved your children in that relationship?  Does your spouse have an anger issue, or addiction to alcohol or drugs?Before discussing your desire for child support and/or alimony, I suggest that you discuss you and your spouse's educational backgrounds, work/employment history, reasons for jobs changes (e.g. fired, laid off, resigned for better position, etc.), pay history, and current employment.  For the issue of temporary spousal support it is also helpful to remind the court of any fault in the breakdown of the marriage (e.g. adultery, physical abuse, habitual drug use or alcoholism).  I think it is also helpful to relate this paragraph to your financial declaration to point out how your (very reasonable) living expenses exceed your gross income and either how you need additional money from your spouse to help ends meet or you can't afford to pay more than reasonable child support because of your other financial obligations incurred during the marriage.   Now that we have the basis for your understanding of the parties' income you can begin to frame your request for (or against) child support, alimony, and attorney fees.You should also ask for specific items you are requesting such as continued health insurance coverage for you or the children, possession of the marital residence and a determination of who should be paying the bills, possession of the vehicles and other items of personal property.

Supporting Affidavits

When it comes to supporting affidavits, I know I am not the only attorney who has reviewed dozens of pages from brothers, sisters, friends, parents, and other family members describing how great my client is.  But the truth is, the court would expect family members to be on our side and provide glowing reviews of our client's behavior and parenting skills.What is more beneficial to the case are affidavits from neutral third-parties such as a teacher, daycare provider, doctor, counselor, or private investigator.  While I somewhat belittled having family members give affidavits, if they have very specific information they can provide about instances they personally witnessed that back up your claims then it is more effective.These affidavits should set out the relationship of the affiant (the person writing the affidavit) to the client and his/her spouse, how long they have known them, how frequent the contact is, and their specific points about things they have witnessed that support our case or contradict allegations the spouse is making.