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Category: Support

How assets are divided.


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Which parent gets to claim the child on taxes?

tax-dollars-e1276903266555In years past, this question was an easy answer.  Moms were getting custody routinely and dads were getting the children every other weekend.  Every parent knows the more dependents you are able to claim the lower your tax bill will cost them.  That is the primary reason parents want the ability to claim their children as dependents.

Today with the ever-changing parenting plans that occur in divorce situations, tax exemptions come up over and over again.  Despite how complicated the parenting plan or visitation schedule becomes, the simple rule-of-thumb is the parent with whom the child has more overnights with is the parent entitled to claim the tax deduction.  When this simple formula is put into place, it separates the line of who is the custodial parent and who is the noncustodial parent.

With all of this in mind, there are ways to simply this decision during a divorce.  Should the parties agree to who can claim the child and some times for which years (even or odd, etc), they can enter into an agreement which creates a contract between them.  Parents can even alternate years which will allow each parent to change their deductions on the years they do not claim the child.

A recent decision from the IRS in May 2013 from the United States Tax Court says that the IRS is not bound by state court rulings that allocate which parent may claim the child for a tax dependent.  So, for federal income tax purposes the the IRS rules govern.  The decision sums up tax dependency by saying that it is the IRS rules and state court orders that determine which parent can claim the children.  Since federal law governs a person's federal returns, they should look to IRS rules.  This makes it impossible for state courts to rule which parent may claim the children on their federal tax returns and that is based upon eligibility set out by the IRS regulations. However, state tax returns may be governed by state court orders.

The state of Alabama defines tax dependent eligibility as the parent who supports the child for more than 50% of his or her support during the tax year.  This ultimately puts the tax dependent claim with the custodial parent since even though a parent pays child support that does not cover more than 50% of that child's support.  This is ordinarily the case but not the rule.  There are a lot of considerations to be taken into account before answering this question.  Consulting a family law attorney will be most helpful in this case.  Our firm handles divorce and child custody cases routinely and the tax question is one that we have litigated in several cases.  Obtaining an opinion and order from the court puts the issue at rest.  Plus the parent who claims the child on their taxes has an order to produce in cases of dispute.  If both parents claim the same child as a tax dependent, the one with an order as proof of tax dependency will win the deduction.  Call us today if you need help in any divorce or child custody case (205) 623-1001.  We are here to help you find real solutions.

Collecting Child Support

Once a parent has an order awarding child support, then what?  Typically if the parent responsible for paying has a job, the attorney should ensure an IWO (Income Withholding Order) is filed.  This will deduct the monthly obligation of child support from the parent who owes the duty of support.  This amount is deducted in accordance with how they are paid, weekly, bi-weekly, monthly, etc.  After the support is deducted from their payroll check, the money is forwarded to the Alabama Child Support Payment Center.  From there, it is either direct deposited into the custodial parent's account or put on a debit card for them to use.

The question I have to answer over and over again is the difference between a garnishment and an IWO.  IWO are more appropriate for child support because that is a monthly payment which is how an IWO works.  A garnishment can be utilized for a one time withdrawal from someone's paycheck or their checking account.  Since it is a one time withdrawal it is only appropriate for a property settlement or an amount that is reduced to a judgment.  After the one time withdrawal is made the garnishment is satisfied.  Or a continuining garnishment will continue until the entire amount requested is fulfilled.

It is important to have an attorney involved for both processes to avoid delays.  To properly file an IWO it must be served upon the employer and the employee who owes the money.  If any problems with service occur, it will greatly delay the receipient from getting the funds.

A garnishment served and collected does not end the process.  An attorney is very useful during the collection of garnished funds since they are originally paid into the clerk's office.  Motions and Orders have to be filed before the funds are released.  To expedite this process, hiring an attorney is always a good choice.  An attorney who assists a client collect a garnishment should follow the entire process until the funds are actually released to the client.

Child support can be collected both ways.  However, an IWO will be best suited to do so since it is a monthly obligation unless there is an arrearage that can be reduced to a judgment and collected in a garnishment proceeding.  Things to consider for this process are whether the person owing the money has a job, or whether they have the funds in a bank account either savings or checking.  If either of these criteria are met, a garnishment may satisfy what is owed.

The typical case that has both current child support and arrearages due are collected through an IWO.  In this instance, the IWO will be calculated to deduct the current amount due each month and set a separate payment for the arrearage amount due.  Both amounts can be deducted monthly in accordance with the employees payroll schedule.  Then the amounts will following the normal process to being delivered to the parent who is owed the support.  Arrearage only cases can also be set up with an IWO as well.  IWO are utilized in both employer-employee situations and through deductions made from social security benefits.

Contact our office today if you are in need of collecting child support.  We are here to assist you with your child support needs  (205) 623-1001.

Divorce and Mental Health Issues.

There are couples who have a spouse with mental health issues. If your spouse has a mental health issue and ignores medical advice, it may be best to have a no contact order with the children until steps can be taken to make them safe and secure. It is important to weigh the benefits of having a no contact order against the resulting backlash of the parent with no contact. If your children or you are truly in danger due to prescription drug misuse or abuse and mental health issues, there are remedies that can be provided for your protection. With that said, all clients must realize the the law provides a remedy but the proactive nature of the law can only enforced by an Order and law enforcement agencies. Just because you have received a no contact order does not mean that it will prevent the other parent from attempting to harass or harm you. It means you have the power to enforce the Order of the court with the appropriate officials. While married there is no preference for either parent for custody. So a temporary order giving one parent custody over the other is required to enforce decisions to be made over the children. This protection is provided by the court. One major piece of advice is to consult an attorney who regularly practices in divorce and the county in which you seek to get a no contact order. This will ensure that you are able to get a result in a timely fashion. Following the advice of a family law or divorce attorney who routinely practices in your county, will be the best course of action in any divorce case. However, in an emergency situation it can save lives.  Emergency orders are only temporary and a court will set them for a full hearing upon any motion of any party.  They are intended to only give "temporary" protection and last until a judge can hear from both sides.  It is vital to know the nature and extent of the protection they can provide.  Every person has a constitutional right to have their day in court and a 6th Amendment right to confront their accuser.  So the extent of a temporary order received during an emergency is subject to being fully litigated at any request of any party.  With that said, emergency orders are necessary and can provide protection until more can be understood about the situation.  If you are in need of an emergency order, please do not hesitate to call us (205) 623-1001.  We are always here for those parents who find themselves in an emergency situation.

Child Support

If you are the parent owing child support, there is a word of caution if you intend on using the inability to secure employment as your reason for nonpayment.  The recent job market is an acceptable reason but only for a recent episode of nonpayment.  If you have a history or arrearage of child support from the past, a judge will most likely not accept this reason when a contempt petition is filed.  Once the custodial parent files a contempt petition for nonpayment of child support, the best advice is to begin payment as much and as often as you can do so.  If you need to apply at local fast food places or sell your property such as cars, trucks or collectibles, you should do so.   This would be the best plan rather than come into court and argue that you are unable to secure employment.  Your past history of nonpayment will work against that argument.  If there is a child support arrearage from your past, a judge will most likely incarcerate you until the arrearage can be paid or a substantial payment can be made on it.

It is the custodial parent's obligation to file contempt on the nonpaying parent.  Once the allegation is made that child support is not being paid, the only defense is inability to pay.  However inability to pay must be a recent event.  If you just lost your job or became disabled in some way, then inability to pay will be a good argument to make in any contempt hearing.  Judges look to your past performance to determine whether you are really facing a new development in your employment status to warrant the defense of inability to pay.  Children have a constitutional right to be supported by both parents and that is reason child support becomes due upon divorce or legal separation of the parents.  A parent who does not pay their child support may cause the child to suffer due to the lack of funds for their living expenses.  The most common areas a child may suffer is extra curricular activities such as sports or dance.  If the custodial parent is not receiving support from the other parent, these options may be available to the child.

Here at The Zwiebel Law Firm we take child support cases very seriously.  Whether you are in need of support or whether you need representation because of child support that is due, we have plans to cure each issue.  We work together with custodial parents and noncustodial parents to get child support issues worked at to the best possible outcome for each parent.  Call us today at 205-623-1001.  We are here to help.

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