Tuesday, September 4, 2018

Divorce Tax Tips

Divorce Tax Tips

The many changes in your life after divorce include new rules imposed by the Internal Revenue Service (IRS) about your claims, deductions, exemptions and income.

Your new single status

The IRS classifies you as a single person even if your divorce was not finalized until the last day of the taxable year — in most cases, a decree dated December 31st means you were single the previous year, whereas a date of January 1st means you were married. You remain liable for any unpaid taxes, penalties and interest on joint tax returns you filed while married. Your separation does not release you from the liability, even if your divorce decree specifically holds your former spouse liable. However, you can apply to the IRS for relief if your spouse is responsible for mistakes on your past tax returns.

Social Security after name change

The name on your tax return should match that of your Social Security Administration (SSA) records. A disparity between the surnames can cause problems with processing your return and delay receipt of your refund. To change your surname back to your former name, apply to your local SSA for a new card and show a copy of your final decree as proof.

How to claim alimony on your tax return

You can deduct alimony you pay to your former spouse, whereas your former spouse must report the amount as income. However, if you are a U.S. citizen or permanent resident who pays spousal support to a foreign national, you may be required to withhold income tax at a 30 percent rate.

Child support and taxes

Your child support payments are not tax deductible, and conversely, the child support your spouse receives is not considered income. If you pay your former spouse less than what you owe in financial support, any payments you make apply first to your child support obligations and then to your alimony responsibilities.

Child Marriage and Divorce in the United States

Within the last few years alone, 12 states have discussed bills in their legislatures that center on the issue of the legality of child marriage. So far, all these states have said children under the age of 18 can marry, but there are certain conditions attached to it.

An important follow-up question that has not gotten as much attention is whether minors who get married may also get divorced. In many cases, minors are not legally allowed to get a direct divorce. This is because marriage is considered a binding legal contract, with most laws stipulating that only adults may enter contracts. The laws operate based on the presumption that anyone who is getting married is an adult.

Therefore, if a minor wants to change his or her marriage contract, that person must seek the assistance of an adult. It’s an issue in more marriages than one might expect. Between 2000 and 2015, there were at least 207,468 child marriages in 44 different states.

Why divorce for minors should be more accessible

Child advocates are particularly concerned with married minors being able to get divorced because numerous studies have shown children who get married before turning 18 are at significantly higher risk of domestic violence. This means that there are legal hurdles to ending the marriage that could prolong this abuse.

As of now, minors who wish to get divorced must have an adult appointed to act on their behalf. This person is known as the guardian ad litem, the official advocate for the minor who oversees the divorce motion.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, September 3, 2018

Trusts or Special Power of Appointment

Trusts or Special Power of Appointment

Once a lawsuit is filed against you and a plaintiff’s attorney discovers the existence of a domestic trust, the outcome of the suit is left to a judge or jury.  Make no mistake about it, a special power of appointment cannot protect assets held in a domestic trust if a judge or jury decides to find an exception to the law or, worse, if the judge or jury decides to make an example of your situation.  Leaving your fate to the judgment of strangers is dangerous.  Deterring litigation and keeping control is a better

Offshore Asset Protection Puts You in Control

The main problem with relying solely on a special power of appointment is that assets held in trust and the trust itself are subject to the jurisdiction of the U.S. court system.  If a U.S. court decides to disregard a trust, the assets held by that trust are easily accessible.  That’s not where you want to find yourself.  Offshore asset protection removes both the trust and the assets held in trust from the reach of domestic judges.

Cook Islands Trust Law Deters Litigation

Consider an example from the Cook Islands. If Mr. Jones sets up a trust in the Cook Islands and is later sued, plaintiff’s attorneys are not likely to attack the trust for a number of reasons.  First, the only way to invalidate a trust in the Cook Islands is with a judgment from a Cook Islands’ court.  The Cook Islands will not recognize such a judgment from a U.S. court.  The only way for a plaintiff’s attorney to get such a judgment is to sue in the Cook Islands, which is incredibly expensive, since it requires plaintiff’s to front all the expenses of litigation and does not allow plaintiff’s attorneys to collect contingency fees.

In other words, attorneys attacking a trust in the Cook Islands have to either bill their clients by the hour or work for free (after fronting the cost of international litigation), both of which are expensive propositions.  Other benefits include a hard two year statute of limitations, which means that Cook Islands trust cannot be attacked after it is has been in existence for two years!

Special Power of Appoint Revisited

It is true, as we wrote previously, that a special power of appointment contained in a domestic trust provides some level of asset protection.  It does not, however, provide comprehensive asset protection.  A savvy plaintiff’s attorney will easily be able to discover the existence of such a trust, unless you are willing to lie under oath, which is never advisable.  In addition, plaintiffs lawyers have incentives to attack domestic trusts, which leaves the assets in such trusts subject to the whims of the U.S. legal system.

An offshore asset protection trust makes litigation very expensive and, therefore, deters lawsuits in the first place.  Even if an offshore trust is attacked, the laws in many foreign jurisdictions are stacked so in favor of asset protection that an adverse judgment is almost inconceivable.

Combining Forces Offshore & Power of Appointment

While an offshore trust provides the most comprehensive form of protection in itself, there is nothing to prevent you from seeking to combine that protection with a special power of appointment.  If you have questions about how to accomplish that goal, ask an asset protection attorney.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Contested Guardianship Cases in Utah

Contested Guardianship Cases in Utah

Guardianship proceedings are commenced by the filing of a petition with the Court.  The contents of the petition is set forth in Utah Mental Hygiene Law (MHL) Section 81.08.  Among other items, the petition must include information regarding an alleged incapacitated person’s (AIP) functional level and his ability to take care of his activities of daily living.  As a Utah contested guardianship lawyer can explain, guardianship petitions need to provide the Court with the basics of the AIP’s circumstances and the prima facie case for the appointment of a Guardian for personal needs and property management.  MHL Section 81.02(b) provides that a Court needs to have clear and convincing evidence to determine that a person is incapacitated.

In many cases the need for the appointment of a Guardian is clear and without dispute.  For example, a person may suffer from dementia or a serious illness or accident and be totally dependent upon his family or friends for all daily activities such as feeding and personal hygiene.  In these cases there may also be no dispute as to whom should be appointed as Guardian such as an AIP’s spouse or other close family member or friend.

However, as a contested guardianship lawyer in Utah, I have represented clients where there are major disputes in the Guardianship case.  These controversies have many different aspects.  The following is a list of some of the most commonly contested Guardianship areas that I have encountered:

(a)   Disputes Regarding Incapacity – sometimes the AIP opposes the

Petition and sets forth a position that he does not need a Guardian.  The Court then would need to determine whether the person meets the statutory criteria of being incapacitated.

When a petition is filed with the Court, the Court then signs and issues an Order to Show Cause. This Order is served on various parties including the AIP. MHL 81.07 states that the AIP is entitled to be present at the hearing and to advise the Court if he does not want a Guardian appointed. The Order also must state that the AIP has the right to be represented by a Utah contested guardianship attorney. Typically, when an AIP is opposing the Guardianship appointment, the Court will appoint an attorney to represent the AIP.

(b)   Available Alternatives to Guardianship: there are instances where

The AIP is clearly incapacitated and cannot handle his activities of daily living.  However, before becoming incapacitated, the AIP may have signed and put into effect a Durable Power of Attorney, a Health Care Proxy or a Living Trust.  When there exists alternate and advance directives so that the AIP has already established a means by which his needs can be taken care of, the Court will not appoint a Guardian.  Many Guardianship contests involve the validity of these advance directives.  If the AIP signed a Power of Attorney or Health Care Proxy at a time when he was already incapacitated, the Guardianship court has the power to revoke or void such papers.  These Judicial powers are set forth in MHL Section 81.29.

(c)    Disputes Regarding the Person to Be Appointed as Guardian:

Another area of controversy concerns disputes as to the proper person to be appointed as Guardian.  In these cases there may be little question regarding the need for the Guardian.  However, different family members may be competing for appointment so that they can control the personal needs and property management of the AIP.

It is not unusual for one family member to claim that a competing family member either did not adequately care for the AIP’s health and personal needs or that there was improper involvement with the AIP’s assets.  In view of the myriad of complaints that one person may have against the other, the Court may be faced with very bitter tension between the competing potential family members.  One standard manner by which Guardianship Courts resolve these arguments is to appoint an independent third party as the Guardian.

Distributees

In Utah, “distributees” are persons who are designated by law as having the primary right to receive a decedent’s estate in the case of intestacy – i.e. where a person dies without a Will.  Utah Estates, Powers and Trusts Law (“EPTL”) Section 1-2.5 defines a distributee as “a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution”. A Utah distributee lawyer can advise you on your rights and assert them for you.

When a person dies without a Will, his or her distributees (next of kin) inherit as the statutes provide.  Generally, the order of priority is the spouse and children, parents and brothers and sisters.  EPTL Section 4-1.1 sets forth the order of priority for persons to receive their distributive share.

The identity of distributees is also important in other types of proceedings such as probate.  Utah laws and procedures require that a decedent’s distributees be provided with notice of a probate proceeding and given the opportunity to contest the decedent’s Will.  In the probate proceeding, the probate petition must contain the names and address of all of the decedent’s distributees.  The petition also contains an estimate of the value of the decedent’s personal property and real property interests.   At the outset of the probate case, the distributees may be given the opportunity to sign a paper by which they consent to the probate of the purported Last Will.  If a distributee does not consent, he will be served with a Citation which is issued by the Surrogate’s Court and is like a Summons.  The Citation contains a Court date on which the served party must appear in Court and let the Court know if they want to move forward towards objecting to the Will.  Objections to a Will need to prepared and filed according to various rules and procedures.    For example, a distributee lawyer in Utah can help an objectant prepare and file estate litigation papers in the Queens Surrogate’s Court.  The testimony of the attesting witnesses and the person who drafted the Will can be obtained even before filing Objections pursuant to Surrogate’s Court Procedure Act Section 1404.

The rules of kinship and the determination of distributees, along with the protection of distributees’ interests, can be complex.  When a person fails to prepare a Will, the laws of intestacy control estate distribution.  It may be necessary for family members to present evidence at a hearing on kinship to prove their right of inheritance.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, September 2, 2018

Child’s School Consistency in Divorce

Child's School Consistency in Divorce

Although it’s somewhat rare, it’s not unheard of for one parent to enroll children in a different school without the permission of the other parent or the court. Obviously, this is usually a problem when the two parents are separated or divorced. In some cases, children even go entirely un-enrolled because the parents have such contentious arguments about which school a child should attend.

It is an unfortunate reality that children sometimes get caught in the crossfire of a contentious divorce. Parents must make every effort to keep their children’s lives as normal and stable as possible, especially when it comes to their education.

Below are a few basic rules all parents should remember regarding this issue:

  • Consistency is crucial: A school is not just the building at which you drop off your kids. It is filled with important relationships your children have built with friends, teachers and staff. Their comfort in their school can help them through what is, even in the best cases, a stressful and turbulent home life.
  • Keep children in their school, if possible: If you can, keep your children in the schools they were already attending, unless both parents agree a move is for the better. Again, having this consistency and maintaining those relationships that have already been built is crucial.
  • Consider expenses: If your children have been attending private school before your divorce, there is a chance you will have to move your children to public school. Private school is often one of the first expenses to be removed after a divorce, as it can become too much for parents to handle.

Study Indicates Living with Partner Before Marriage Increases Likelihood of Divorce

If you have wondered whether living together before marriage has an impact on the quality of marriage, a new study from the Center for Marital and Family Studies indicates that it does. According to the survey performed by the organization targeting couples that have been married for fewer than 10 years, there appears to be a greater likelihood of divorce among couples that lived together before marriage.

The men who responded in the survey rated themselves as being “considerably lower” in how much they are dedicated to their spouses. Other studies performed by the organization have yielded the same findings for women, though to a smaller degree.

Meanwhile, survey respondents that were committed to marrying each other before they began living together did not experience the same lower levels of commitment exhibited in the cohabiting partners.

Researchers at the center posit that some of the men surveyed may have married their spouse even though they might not have done so had they not lived together. The term used was “deciding, not sliding.” The group of people not cohabiting had decided that they were going to be married, whereas the people living together were more likely to “slide” into a marriage because it was the natural next step.

Other statistics reflect the same conclusion. In 2010, the divorce rate for couples cohabiting before engagement was even 8 percent higher than couples cohabiting after engagement but before marriage.

The problem with living together, according to the researchers, is that it seems to be more difficult to “disentangle” yourself from the relationship should it appear to be coming to an end. Therefore it’s easier for people to try to fix the relationship, even if it doesn’t appear that it’s going to work.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Common Divorce Myths

Common Divorce Myths

People who are going through their first divorce never quite know exactly what to expect. We may know others who have gone through the process, but every divorce is different and there are many types of challenges that may arise.

There are a number of myths and misconceptions surrounding the divorce process that may make individuals even more anxious than they already would be. Here are a few of those myths:

  • Visitation can be denied. Just because a former partner falls behind on child support payments does not mean he or she may be denied visitation access. Visitation and child support are entirely separate issues.
  • Divorce itself can be denied. Although you do need to file a divorce petition with a judge, the judge cannot deny your request. There are certain steps you will have to go through, but if you want a divorce, you will most likely get it.
  • Mothers always get custody. While it is true that more mothers get primary custody than fathers, this is not because of any inherent bias in the law. The judge will give custody to whichever parent is deemed more fit to have full or primary custody of the children.
  • Child support may be avoided. Every child has a right to financial support. You cannot avoid this responsibility, and attempting to do so could land you in serious legal and financial trouble.
  • Adultery drastically affects a divorce outcome. Although cheating on a spouse could lead to the divorce happening in the first place, it does not mean you are more likely to lose out during the division of marital assets and property.
  • Assets will be split down the middle. Assets are split equitably — not necessarily equally. There are many factors judges consider when it comes to dividing property, and in this case, “fair” is not necessarily “equal.”

Annulment: When is it an Option?

Just like a divorce, a civil annulment ends a marriage. However, the effect of an annulment is that the law will not recognize the marriage as ever having existed.

It is not easy to get an annulment. Your marriage can only be annulled on certain grounds, such as:

  • One spouse was not of sound mind at the commencement of the marriage and was thereby unable to give consent due to mental impairment or the influence of alcohol or drugs
  • One spouse was forced into the marriage against his or her will, whether by threat of physical force or some form of extortion or coercion
  • One spouse made fraudulent statements, without which the other spouse would not have agreed to marry that person
  • One spouse had a physical impairment unknown to the other spouse that prevented the couple from being able to consummate the marriage
  • The marriage itself was illegal and automatically invalid for reasons such as bigamy, one spouse being under the age of consent or the marriage being incestuous

Advantages and disadvantages of annulment

Before you consider seeking an annulment, it is important to consider the pros and cons of doing so.

In terms of advantages, the law will treat the marriage as though it never existed, which means you will not have to worry about issues such as property division. If children are involved, the court will still have to consider support and custody arrangements, as annulments do not affect whether children born during the marriage are considered legitimate.

The major disadvantage of an annulment is that proving you have the grounds for one can be difficult and expensive. You must be able to prove, without question, that one of the above grounds existed at the time of the wedding, which could take some significant investigation and court time. There are also time limits on annulments, meaning your opportunity may have passed.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Saturday, September 1, 2018

Children Leaving Foster Care

Children Leaving Foster Care

Children usually “age out” of foster care when they turn 18 years old, the age of emancipation in most states. However, there’s no set age that marks the end of foster care. Federal guidelines require states to assist children during their transition from foster care to independence, beginning as early as the state agencies find appropriate, and in some cases as early as age 13. We see this as a child custody lawyer and thought we should let you know.

The Aging Out Transition

When children age out of foster care, they become ineligible to receive state assistance with housing, food, and medical care under the foster care system. The federal government recognized that this and child custody became less of an issue, coupled with the fact that foster children typically already suffer ill-effects due to the lack of a stable home environment while growing up, was causing newly emancipated young adults to suffer higher rates of substance abuse, mental illness, teen pregnancy, homelessness, and arrests.

In response, the government created the John H. Chafee Foster Care Independence Program (CFCIP) under Title I of the Foster Care Independence Act of 1999 to provide funding for states to assist youth (up to age 21) in foster care to make a smoother, more successful transition to adulthood. States use the funds to improve the quality of transitional support available to foster youth, including the following initiatives:

  • Promoting stable, permanent connections to caring adults
  • Helping youth manage and meet their health needs, often through temporary Medicaid coverage
  • Supporting economic success through educational vouchers to higher education institutions and employment programs
  • Providing life skills training to help youth navigate the adult world
  • Improving access to stable and safe housing, which varies between full assistance from age 18-21 to states where no financial assistance is available

What is Actually Provided for Foster Children Aging Out of the Foster Care System?

While the CFCIP sets federal guidelines for states to follow, it doesn’t mandate precisely what states must provide to foster children aging out of the system. As a result, benefits vary widely from state to state. To learn more about the federal guidelines and some instances that federal funding is unavailable, consult the U.S. Department of Health & Human Services Child Welfare Policy Manual. Here are some additional resources to help you determine what kind of aid you might be eligible for:

  • Foster Care Alumni of America- Provides housing, education, health, and mental health resources. FCAA has state chapters in AZ, CA, CO, FL, ID, IL, KY, MA, MD, OH, TN, TX, and VA.
  • Jim Casey Youth Opportunities Initiative – Provides financial support and advocacy for those aging out of the foster care system.
  • FosterClub – Online community to share stories and support foster care peers.
  • National Independent Living Association – Non-profit organization aiding those who have aged out of the foster care system to build healthy, stable independent lives. Offers seminars and mentors from all over the United States.
  • Foster Care to Success – America’s College Fund for Foster Youth. Aids young adults from foster care in obtaining and using the federally-funded vouchers for higher education.
  • Child Welfare League of America – Supports vulnerable children and families. Provides a wealth of links to resources for those aging out of foster care

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Concealing Assets with Bitcoin in Divorce

Concealing Assets with Bitcoin in Divorce

Hiding assets during a divorce is illegal and ill-advised. If discovered, it could negatively impact the perpetrator’s ability to receive a fair settlement during the division of assets portion of the divorce negotiations. We’ve previously discussed bitcoin here, here, and here.

One method of asset concealment that has gained popularity in recent years is to hide assets with Bitcoin. Tech-savvy people have been using Bitcoin, a form of cryptocurrency, to transfer money under pseudonyms without interference from a bank or government authority. The privacy associated with Bitcoin has made it a prime source for asset concealment for those going through the divorce process.

How do people get caught concealing assets with Bitcoins?

Although Bitcoin does offer users a certain level of privacy, it is still traceable. If a person going through a divorce transfers large amounts of money into a Bitcoin exchange, it’s likely to raise red flags. The same is true of large cash transfers or withdrawals used to purchase Bitcoin from various points of sale.

Digital forensic experts have also become quite savvy at tracking the use of Bitcoin and other forms of cryptocurrency.

Even if investigators are unable to determine exactly what a person is doing with cash withdrawals, it’s still possible that such unauthorized withdrawals were made in bad faith and dissipated marital assets. If a Divorce Lawyer in Salt Lake City Utah can prove that was the case, a court may decrease the amounts of assets or property the perpetrator receives. In some cases, criminal charges could result, as well. It would be a very bad idea to conceal assets. It can result in the person hiding the bitcoin to end up in jail.

What Happens to the Wedding Rings?

When a marriage ends in divorce, one uncomfortable decision is related to what happens with the couple’s wedding rings. This can be a big deal for some people, especially if the rings were expensive or were important family heirlooms.

There are some cases on record in which courts have classified wedding rings as gifts, which means the person who gave the ring no longer has any legal entitlement to it. However, there are several factors that could go into determining who takes possession of rings:

  • Inter vivos gifts: Inter vivos is Latin for “between the living,” which refers to any type of gift made by one person to another while both are still alive. This contrasts with gifts left through a will and inheritance. Once the gift is delivered to the receiver, it is not allowed to be recovered by the person who gave it.
  • Gifts causa mortis: Causa mortis means “on the occasion of death,” and refers to any gifts made in contemplation of one’s passing. This is not, however, a gift given through a will. Rather, it is a gift given while the donor expects to die imminently. For example, if a woman’s father gives his future son-in-law a meaningful family heirloom when he expects to die, but he survives and his daughter’s marriage ultimately breaks down, he can legally recover the gift made causa mortis.
  • Conditional gifts: Some jurisdictions view engagement and wedding rings as “conditional gifts,” which mean as long as a person meets a given condition, he or she is allowed o keep the gift. If an engagement were to fall apart, for example, that condition would not have been met, which means the person who gave the ring could potentially recover it.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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