South Carolina Family Law Blog : Spartanburg Divorce Lawyer & Attorney : Stevens-MacPhail Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

The American Bar Association's Section of Family Law publishes charts in its Family Law Quarterly which summarize the basic laws in each state by topic, including custody, alimony and grounds for divorce.  These charts are current as of November 2006, and they are useful as a quick reference to both attorneys and clients.  Charts are available on the following subjects:

• Alimony/Spousal Support Factors
  
• Custody Criteria
  
• Child Support Guidelines
  
• Grounds for Divorce and Residency Requirements
  
• Property Division
  
• Third-Party Visitation
  
• Appointment Laws in Adoption, Guardianship, and Parentage Cases
  
• Download All Charts

Source: Thanks to John Harding for his article on this subject published at his California Divorce Blawg.

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This year, the deadline is April 17 for federal and state returns.

If you were recently divorced and are paying or receiving alimony under a divorce decree or agreement, you need to consider the tax implication for your 2006 federal income tax return.

Alimony payments received from your spouse or former spouse are taxable to you in the year you receive them. Because no taxes are withheld from alimony payments, you may need to make estimated tax payments or increase the amount withheld from your paycheck.

Alimony payments you make under a divorce or separation instrument are deductible if certain requirements are met. Any payments not required by such a decree or agreement do not qualify as deductible alimony payments.

Child support is never deductible. If your divorce decree or other written instrument or agreement calls for alimony and child support, and you pay less than the total required, the payments apply first to child support. Any remaining amount is then considered alimony.

For more information, go to www.irs.gov.

Source:  "Tax tip | Divorce Can Impact Taxes" published at The State.  Thanks to Warren R. Shiell of the Los Angeles Divorce and Family Law blog for his post about this article.

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The S.C. Court of Appeals issued a decision earlier this week which addressed several important financial concepts in divorce cases:

• The Court affirmed the equitable distribution award, holding that, generally, in South Carolina marital property subject to equitable distribution is valued on the date marital litigation is commenced. Therefore, the Family Court did not err by failing to consider the IRA’s increase after the final hearing nor by failing to reconsider the valuation of the family’s house, which sold after the family court issued the divorce decree.

• The Court reversed and remanded the award of alimony because the Court relied only on Wife’s need and Husband’s ability to pay alimony in making its determination and it did not consider Wife’s non-marital assets.

• The Court reversed the award of expert fees to Wife, holding that she failed to produce evidence to support the award.  In this case, the expert did not testify and the Wife did not affirmatively establish what services he performed.

You can read the full text of Fuller v. Fuller by clicking HERE.

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I recently became aware of a great new blog, The Online Lawyer, which has practical, useful posts on topics from family law to bankruptcy. The blog is published by M. Travis Robbins, an attorney in Tallahassee, Florida. The following article, Divorce: Things To Consider, was published a few weeks ago:

I once heard an acquaintance say that the happiest day of his life was the day he got married and the second happiest was the day he got divorced. From that statement I think it is safe to assume that his ex-wife would probably put the two in reverse order. Although my wife and I have been happily married for eleven years I am not so blind as to think all marriages work out. Sometimes there is just no reconciling marital differences. If you have decided to get divorced consider the following:

Consider Mediation First

As a general rule, the more the parties can work out themselves the happier each will be with the end result. Consider mediation. Mediation is an opportunity for each party to appear before a neutral third party to discuss issues such as alimony, child support, child custody, asset division, etc. Divorce mediators are skilled in drafting divorce agreements addressing each of these issues. If the parties are able to reach an agreement at mediation the agreement may be submitted to a family law judge for approval. In many cases, a hearing may not even be necessary for a judge to grant a divorce pursuant to a mediated divorce agreement.

All statements made during mediation are confidential and cannot be submitted before the court. Also, if the parties are unable to reach an agreement at mediation they do not have to sign the agreement. A word of caution: If your spouse appears at the mediation with an attorney and you do not have an attorney, terminate the mediation until you counsel with a divorce attorney. I know numerous individuals who tried to avoid paying attorney's fees by negotiating with the other party's attorney. I have never seen a case where the unrepresented party came out ahead (or break even for that matter).

Custody and Visitation of Children

If the parties cannot agree on legal custody of the children, a court will determine who gets custody. The primary consideration in determining custody is what is in "the best interest of the children." Many states have different criteria for determining such interest. Consult a local divorce attorney in your area to find out what factors your state uses.

The spouse who is granted "legal custody" has the right to make decisions about a child's upbringing including the children's schooling, religion, medical care, etc. The parent who is granted "physical custody" has the right to have the child live with that parent. Often "legal" and "physical" custody are shared; but more often than not shared custody is the result of a mediated divorce agreement. The noncustodial parent is usually allowed reasonable visitation rights. The parents are usually left to work out their own schedule of time and place for visitation which allows the parents flexibility in determining the schedule.

Child Support

Most states have legislated guidelines for determining child support based on the income and expenses of each parent. In determining child support, most states require the court to look at the needs of the child (i.e. health insurance, education, day care, and special needs), the income and needs of the custodial parent, the paying parent's ability to pay, and the child's standard of living before divorce or separation. Most states require each parent to fill out a financial statement before a court can make a decision.

Alimony

Alimony (a/k/a spousal support) means payment by one spouse to another following a divorce. Alimony is usually granted when the marriage was of a long duration and one spouse earns considerably more than the other. Alimony is also usually granted when one spouse has left the workforce to raise the children or manage the household. Make sure you keep adequate records if you are paying or receiving alimony.

Source: Post by M. Travis Robbins at The Online Lawyer blog.

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In a recent opinion, Love v. Love, the S.C. Court of Appeals made it clear that there is no distinction between the Family Court's right to modify an alimony agreement and the right to terminate an agreement. The Court cited Moseley v. Mosier, a 1983 S.C. Supreme Court case which held that the Family Court has the authority to modify alimony agreements unless the agreement unambiguously denies the court jurisdiction.

In Love, the Court pointed out that parties to a separation agreement may either (a) agree to make alimony unmodifiable or (b) leave the issue within the traditional oversight of the family court. Should the parties choose option (b), the Family Court may modify alimony to the same extent permissible in court-awarded alimony, a scope of authority which certainly includes the power to terminate payments based on substantial changes in the parties' circumstances.

The full opinion can be found here.

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I am catching up on relevant appellate court decisions made over the past few months. In Browning v. Browning, the South Carolina Court of Appeals was faced with the question of whether the family court could require a man to submit to a medical examination to help enable his ex-spouse obtain a life insurance policy on his life. The Court found that because the ex-wife's right to alimony had ended and all of the parties' property claims had been settled, she no longer had an insurable interest in his life and the acquisition of any new insurance policy must be with his consent. The full text of this opinion is available here.

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The South Carolina Court of Appeals issued a decision two weeks ago (Browning v. Browning) which discussed the relationship between and use of life insurance policies to secure the payment of alimony in divorce cases. It also addressed when it is appropriate to require a spouse to undergo a medical examination against his/her will for the purpose of obtaining life insurance in such situations.

In order to require a spouse to obtain or maintain life insurance to secure payment of alimony, the receiving spouse must have an insurable interest in the paying spouse's life. Once the alimony obligation ends, the receiving spouse no longer has any such interest. The Court also found that ordering the paying spouse to submit to a medical examination against his/her will, i.e., forcing him/her to consent, where there is no insurable interest would violate public policy. The full text of the Browning case can be found here.

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The 2005 Bankruptcy Abuse Prevention and Consumer Act makes several very important changes with regard to the effect of bankruptcy on divorce litigation. Both attorneys and parties to Family Court actions should be aware of these drastic changes.

The most significant change is that payment obligations under a property settlement agreement or divorce judgment are no longer dischargable in bankruptcy. Previously, the Bankruptcy Court had to determine whether payments made pursuant to equitable distribution or property settlement payments were "in the nature of support" or purely property settlement obligations. The determination of that issue led to delays in the payment of property settlement obligations and a great deal of costly litigation to determine the "true nature" of such obligations.

The new Act also elevates alimony and child support obligations to a number one priority level in a bankruptcy proceeding. They are now given a priority raising them above even tax claims. The Act also prevents a debtor from obtaining any bankruptcy relief unless all past due alimony or child support claims are paid in full.

Thanks to Robert Durst of the New Jersey Law Blog for his excellent post on this topic.

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In Craig v. Craig (Opinion No. 25970), the S.C. Supreme Court affirmed the decision of the Court of Appeals, which reversed the family court order to sell the marital home and increased the amount of alimony. The Court held that the family court erred in not considering factors relating to the desirability of maintaining the marital home when it apportioned the estate.

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