Lonich & Patton, LLP Blog

As Opening Day approaches, much of the buzz about the LA Dodgers focuses on the owners’ high profile divorce case. There are numerous legal issues in the case, as well as millions of dollars at stake.

While Frank and Jamie McCourt are currently litigating the issue of temporary spousal support (with Jamie requesting nearly $1,000,000 per month), the bigger issue in the case is whether the Dodgers are community property. The team was purchased during marriage, raising the presumption that it is a community property asset. However, Frank McCourt asserts that a post-marital agreement signed in 2004 transferred title of the parties’ residential properties to Jamie and made him the sole owner of the team. Jamie is seeking to invalidate the post-marital agreement. It will be interesting to see how it unfolds.

http://sports.espn.go.com/los-angeles/mlb/news/story?id=5037133&campaign=rss&source=MLBHeadlines

Many people give their spouse a Durable Power of Attorney to handle their financial affairs. In the divorce context, Durable Powers of Attorney are loaded guns. An estranged spouse can use a Durable Power of Attorney to transfer their spouse’s assets to them, take out loans in the name of their spouse, and engage in other financial transactions without that spouse’s knowledge. If you have given your spouse a Durable Power of Attorney, you should consider revoking it immediately so that it cannot be used in an unintended fashion. Check with a qualified estate planning attorney to make sure you know the rules for revoking a power of attorney. Generally, banks and other third parties can rely upon a power of attorney unless they have notice that it has been revoked. If you are concerned that your spouse may attempt to use the power of attorney without your permission, you should consider notifying all your financial institutions that the power of attorney has been revoked.

Recently, a Chicago father has been in the news for violating a custody order by taking his daughter to a Catholic mass. Specifically, Father converted to Judaism after marrying Mother, and allegedly agreed to raise their daughter Jewish. However, they soon separated, and Father began practicing Catholicism again and even had their daughter baptized Catholic. Thereafter, in the midst of a bitter custody battle, the court issued an order that Father could not expose his daughter to any religion other than Judaism. Father allegedly violated that order by taking his daughter to a Catholic mass and Mother filed a contempt motion; the issue is still pending.

In California, when adjudicating custody, courts cannot base a custody or visitation decision on one parent’s religious practices without a clear showing that the religious practices are detrimental to the child. Generally speaking, each parent is entitled to religious freedom with regard to his or her child and may decide what he or she believes is in the child’s best interests. In fact, addressing religious issues during a custody/visitation dispute raises serious First Amendment concerns regarding the freedom of religion, so most courts attempt to steer clear of these issues. Courts will only intervene when the parent seeking to limit the other from exposing or practicing another religion demonstrates that the belief or practice actually presents a substantial threat of harm to the child.

Husband and Wife entered into a Marital Settlement Agreement predicated upon their ultimate judgments of divorce.  If the couple were to enter into a divorce, the provisions of the agreement would be fully incorporated into the final divorce judgment.

The agreement included two provisions regarding their respective rights upon death of the other party with respect to the property of the other.  This included an interest in past, present and future spousal support obligations accepting any obligations set forth in the agreement itself.

The agreement provided that it was binding and shall inure to the benefit of the parties and their heirs except as specifically excluded by the agreement.  Any terms not met would be an obligation of the decedent spouse’s estate.

The agreement obligated the husband to provide a sizeable sum in escrow to his wife upon the entry of a divorce judgment.  This amount would be used to purchase a condominium for her prior to the divorce; the unused balance of the escrow account was to be paid to the wife after the divorce was final.  The agreement also obligated the husband to pay the condominium fees prior to the final divorce judgment.

The agreement also required the husband to pay the wife’s attorney’s fees up to a set amount.

The husband paid as mandated by the agreement and attempted to deduct it as spousal support.  The IRS disallowed the deduction and found that the Marital Settlement Agreement which had been fully incorporated at that point into the final divorce judgment did not support his claim that it was spousal support giving him the benefit of the deduction for those sums paid.  The IRS further found that the agreement, by its terms, caused the escrow account to be an obligation account that would not cease upon the death of the wife and as such was disallowed.  Spousal support cannot continue after the death of either spouse as a matter of law.

Wife and Husband filed for dissolution of their marriage a couple years back.  Prior to their final judgment of divorce, the couple reached an agreement for a lump sum spousal support payment.  Marital Settlement Agreement called for a payment of approximately $150,000 and the final judgment incorporating the Marital Settlement Agreement was issued by the court.

The final Judgment was entered several months later and indicated that Husband had paid the lump sum spousal support by certified check.  The final Judgment stipulated a much larger number as the total lump sum spousal support payment with the following adjustments:

• Reduction for a distribution to the wife of Husband’s half of the proceeds from the sale of their home
• An addition for personal property distribution to the wife
• An addition for the wife’s payment of a personal debt of the husband
• A reduction for Husband’s payment of joint debt
• A reduction for Husband’s assumption of one of Wife’s debts
• A reduction for a transfer of Husband’s investment account.

The couple filed a joint return for the prior year reflecting deductions for the year in which the lump sum, with adjustments, spousal support payment was made.  The IRS initially disallowed the entire amount claimed and ultimately agreed to the lump sum spousal support payment as the only one that was properly deductible; the balance of the payments redistributing the couple’s debt and assets were disallowed by the IRS.

Frequently in dissolution settlement a lump sum spousal support buyout includes a number of features that are nothing more than settlement of personal property (to include cash assets such as industrial accounts and the like) and real property and as such would not be deductible as spousal support.  It is also typical that a spousal support buyout be treated as a non taxable event such that the payor does not get the typical spousal support deduction for the amount paid and the receiving spouse does not have to pay tax as it is described as a property division or settlement.  In that case the agreement itself dictates that the payment would not be a deductible for the payor nor would it be income for the payee.

If you are in the middle of a divorce proceeding, you may be wondering how you should file your tax return, whether you can claim the children as dependency exemptions and how to determine whether support payments should be deducted or included as income.  The following brief, non-exhaustive summary will help you navigate these issues so that you are well-prepared for your tax appointment.  However, given the complexity of tax laws, it is always a good idea to speak with legal and tax professionals who can analyze your specific situation.

What is my Filing Status?

When deciding how to file, remember that your filing status is determined by your marital status on the last day of the calendar year.  For example, if you filed for dissolution on June 30, 2009, but did not obtain a judgment of dissolution until January 1, 2010, you cannot file as a single person on your 2009 income taxes.

If you are still married, you and your spouse must decide whether you will file your returns jointly (“married filed jointly”) or separately (“married filing separately”).  Generally, the high earner gets a benefit from filing a joint return, however, with a joint return comes joint and several liability, meaning that both spouses are liable for any taxes owed, regardless of who earned the income.   Except in certain limited circumstances, you cannot amend a married filing jointly return to a married filing separate return, so if you have any doubts about how to file, you should err on the side of caution and file married filing separate.

Who Gets to Claim the Kids?

If filing separate returns, you must determine who will claim the children as dependents.  The general rule is that the primary custodial parent will take the exemption, but that parent can release the exemption to the other.  For tax purposes, the primary custodial parent is the one with at least 51% custody.  It is therefore important when entering into a joint 50/50 custody agreement to include a provision that for tax purposes, one of the parties will be deemed to have 51% custody.  When there are two children, you can each take 51% custody of one child and share the deductions.  If there is only one child, you can alternate 51% custody on a yearly basis.   If this is not spelled out in your custody order, the IRS will give the deduction to whoever had the child at least 51% of the year, so parents should keep good records of their actual time with the child(ren) in the event there is a dispute over who is entitled to take the deductions.

Can I Deduct Support I Paid/Is Support I Received Taxable Income?

Another common question is whether support paid or received should be deducted from income of the payor and included in the payee’s income.  The general rule is that the payee’s gross income does not include amounts received for child support, but does include money received for spousal support/alimony.  Similarly, a payor cannot deduct child support payments, but can deduct spousal support payments, which are an “above the line” deduction.  To be deemed spousal support, payments must meet numerous IRS requirements, including, but not limited to, that the payments be made in cash by or on behalf of a spouse under a written divorce or separation agreement or decree.  There are also special rules relating to spousal support and equalization payments made as part of a property settlement; if not properly structured, a payor can lose the right to deduct all spousal support payments made under the agreement.  The IRS rules related to “front loading” are beyond the scope of this article, but should be discussed with a legal and tax professional so that you can structure a settlement that does not trigger this issue.

Dividing up personal property during a divorce can be difficult, as different items may be especially unique or useful or may have sentimental value to one or both spouses.  Celebrity Kate Walsh and her husband, Alex Young, devised an ingenious scheme to ensure that each received an equal share of the community furniture and artwork and each received items important to him or her.  They agreed that each would take turns picking items, with the “winner” of a coin toss having the right to pick first.

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