Nancy and Bill are getting divorced.   They have no children but they do have a Golden Doodle, Alfie that they purchased together after they were married.   Nancy and Bill think of Alfie as their child, and they both want Alfie to live with them.   Nancy wonders if she can file a Motion for Custody of the family pet. 

     Under Maryland law, Nancy cannot file a Motion for Custody.  Alfie is not considered by law to be a child, or child-like even though Nancy and Bill think of Alfie as their child.   In Maryland, a pet is considered tangible personal property.  If the pet was purchased during the marriage, using marital funds, as Alfie was, then the pet is marital personal property.  Nancy and Bill must either reach an agreement regarding Alfie, or Alfie may be sold like all of the other personal property they own together. 

     Nancy Kay, in her article “ Who Keeps the Family Dog”, suggests 5 things divorcing spouses like Nancy and Bill should consider when deciding who shall keep the family pet:

        1.         Who has a flexible work schedule or access to a reliable person who can fill in for them to care properly for the pet while they are at work.

        2.         Who has the financial means to provide for the pet throughout the expected length of the pet's life span?

3.         Who has the majority of parenting time with the children who are attached to the family pet?

4.         Has either of you neglected the pet's basic needs or acted abusively toward the pet?

5.         Who will have more space for the dog to exercise and play following divorce?

            Some States are enacting legislation that allows judges to decide custody of the family pet using the “best interest” doctrine just as they do when deciding custody of children, or determining that the pet should go with the children.  We will see what changes, if any, develop in Maryland over the next few years. 

(12/7/15)

Spring Break begins  March 30^th in Fairfax County, Virginia and April 3rd in Montgomery County, Maryland.    If you have opted to remain home this Spring Break there are many opportunities to have fun with your children right in our area.   Jamie Davis Smith’s Huffington Post article, Passport to Spring Break Fun, outlines great activities for you and your children in the DC metropolitan area.  Ms. Smith’s idea of creating a passport to DC with your children will help you plan activities and will get them excited about the week even if you aren’t leaving home.   If you are unsure where to start, Ms. Smith recommends looking at Our-Kids.com, which offers hundreds of suggestions on current local area activities.    I have personally been a subscriber to Our-Kids for many years, and have used and continue to use the site to find interesting events and activities for my children, and I wholeheartedly  second Ms. Smith’s recommendation. 

If your children are interested in the arts, see a play at Imagination Stage or Adventure Theater-MTC, or visit an art museum such as the National Gallery of Art.   Plan to visit the Zoo, the Air and Space Museum, and/or the Museum of Natural History.   Other museums you may want to add to your passport include the National Building Museum and The College Park Aviation Museum.  The Cherry Blossoms are expected to be in full bloom during Spring Break this year.  Plan a trip downtown, or if you prefer to avoid the crowds, take a ride thru many of our area neighborhoods.   Consider day trips to Baltimore, Gettysburg, or a hike thru Great Falls.    Remember to take lots of photos and consider sharing them with your former spouse. 

For more ideas on things to do in Montgomery County, Maryland check out visitmontgomery, for Fairfax Couny, Virginia check out Fairfax Family Fun.   For example, the carousel at Rio Washingtonian opened March 14^th, Zip Lining at Go Ape and Adventure Park at Sandy Spring have opened for the season, Butler’s Orchard Bunnyland runs through April 12^th.  Head to our local parks including Clemyjontri Park on a nice weather day.   Don’t feel you have to attend expensive activities, there are plenty of fun and free or low cost activities that can be found.

With so many wonderful opportunities in our area you will be able to have a memorable Spring Break without leaving home and your passport will be filled in no time. 

If you are separated or divorced there may be tax implications related to your new relationship status.  At Hess Family Law we can work with your existing tax preparer, or we can refer you to and work together with a new tax preparer to assist with separate and divorce tax implications. 

Efile.com suggests these tips for you to consider when filing your annual taxes.

Filing Status:

Your marital status as of December 31^st of each year controls your filing status for that year.   If you were still married on December 31, 2014, and you do not have an Agreement that specifies how you will file, you have two options:  file a joint return or file married filing separately. If you were divorced during 2014, you cannot file a joint return.  If you do not have an Agreement that addresses who may file as Head of Household, you can file as Head of House of Household (and get the benefit of a bigger standard deduction and more advantageous tax brackets) if you had a dependent living with you for more than half the year and you paid for more than half of the upkeep for your home. Otherwise, you may need to file as a Single tax payer.  Hess Family Law recommends you consult an accountant to determine the best way for you to file your taxes.

Dependent Exemptions:

Who claims the kids?  If you have an Agreement or Court order stating who claims the kids then the matter is resolved.  If you do not have such a document and you are the custodial parent you may claim your children as dependents for tax purposes.  The IRS considers you a custodial parent if your child lived with you for a longer period of time during the year than with your former spouse.  Regardless of your custodial arrangement, you and your ex-spouse can agree who claims the children as dependents.   In this instance the custodial parent must sign a waiver stating that he/she will not claim the deduction. 

There is no question that going through a divorce is difficult.  Not only do you have financial and emotional issues to deal with but the social pressures and anxiety of telling friends and family can feel overwhelming.  Many times people want to forget what is happening in their own lives and are all too happy to focus on someone else’s life.  So, what should you do you when you are asked intrusive, meddling, upsetting, or offensive questions?   Or better yet, what shouldn’t you do? 

Hess Family Law wishes everyone a happy and healthy New Year! 

Dealing with family law issues such as divorce, child support, and custody can be overwhelming.   We at Hess Family Law are available to discuss your options and help determine your rights and how best to protect your interests.  Click to read Hess Family Law Blog Guidelines to Managing your Divorce, and Divorce Tips to Keep you on the Right Track.

Hess Family Law wishes everyone a very happy holiday season!  For information on coping with the holidays during or after divorce read Hess Family Law Blog Surviving the Holidays Part 3:  Christmas, Chanukah, and More.

The holidays can be a difficult time for separated or divorced families. Regular schedules that provide stability and consistency are often suspended during the holidays.   Children can become anxious worrying about which parent they will be with and when.   They might become fearful of hurting one parent’s feelings if they spend too much time with the other parent or have too much fun with them.   Favorite traditions will feel different, and your children may be feeling loss and sadness.   You likely have your own feelings of stress, anger, fear and loss that can make it even more difficult for you and your children to maintain joy during the holidays.  Click here to read therapist Alyson Jones 15 Tips for Managing a Divorce Over Christmas, and click here to read Hess Family Law holiday blog post from 12/2012. 

Although this is a difficult time for your family, here at Hess Family Law we hope that after acknowledging the loss and changes of divorce, that you can begin to make wonderful new traditions and memories with your family and find people and things that you are grateful for this holiday season. 

(12/2014)

Hess Family Law wins Court of Appeals Case: Separation Agreements are Not Voidable

     A few months prior to Husband and Wife marrying in September 2003, Wife contacted an attorney to begin the process for Wife, a Canadian citizen, to obtain permanent resident status in the United States. Due to marital difficulties, in 2005 and 2008, Husband and Wife executed Marital Settlement Agreements. Wife used the same attorney to assist her with the drafting of the Agreements that was used by the parties in the Immigration matters. Husband chose not to obtain legal counsel regarding the Separation Agreement even though both Agreements advised Husband that Wife’s attorney was not representing Husband’s interests. Husband and Wife negotiated the terms of their Agreements on their own and Wife advised the attorney on what to draft.

     You filed your Complaint for Limited or Absolute Divorce and received a Writ of Summons from the Court. Now what do you do?

     Typically an opposing party is served by delivering to them a copy of the summons, complaint, and all other papers filed with it.  Your spouse can be served at home, work, or anywhere they happen to be.  You can request that the sheriff’s department serve the papers for a fee, hire a private process server, or you can have anyone over the age of 18 serve the papers.   If your spouse isn't home but resides with a family member the papers can be left with a person who lives with your spouse as long as that person is over the age of 18.  Another method you may use is mailing the papers certified mail requesting: "Restricted Delivery”.  In order for service to be complete,  your spouse must sign the receipt (green card) which is then returned to the sender.   In either scenario, you cannot be the one to serve your spouse.  Once service has been made, an affidavit of service must be filed with the Court.   If you do not file an affidavit of service, the Court will not know that your spouse has been notified of the proceedings.  If your spouse fails to respond to your Complaint, and you have not advised the Court that you obtained service, you will not be able to proceed.  See Maryland Rule 2-121(a)

     Your divorce proceedings have concluded and you have paid your final attorney fee bill. Wondering if any of those fees are deductible on your personal income tax return? The general rule is that a taxpayer may not deduct attorney fees incurred in connection with a divorce or separation because this matter is considered to be personal and the Internal Revenue Code does not permit the deduction of personal, living, or family expenses. I.R.C. § 262(a). However, there are exceptions to this rule that may allow you to deduct some of your legal expenses related to your divorce, so long as you plan to itemize your deductions and your total miscellaneous deductions exceed 2% of your adjusted gross income (AGI). If you do not itemize deductions or your deductions do not pass the 2% adjusted gross income test, then you cannot deduct these fees.

     Alimony Related Legal Fees:

     IRC §212(1) allows an individual to deduct ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income. A spouse seeking taxable income, such as alimony, may deduct a portion of their legal fees related to his/her alimony claim because alimony is includable in the recipient’s gross income. A spouse may also deduct legal fees and expenses associated with a modification of alimony or to collect alimony arrearages. Additionally, if a spouse seeking alimony incurs accounting fees relating to their claim for alimony those accountant fees may also be deductible. Fees incurred to hire a vocational expert, to the extent the fees relate to obtaining alimony, may also be deductible. In order to deduct legal fees relating to a claim for alimony, the alimony recipient should pay all deductible legal fees in one year.

     It is notable that a party defending against an award or collection of alimony cannot deduct his or her legal fees, nor can either spouse deduct legal fees associated with the collection of child support.

     Fees Related to Tax Advice:

     IRC §212(3) allows an individual to deduct ordinary and necessary expenses paid or incurred during the taxable year in connection with the determination, collection, or refund of any tax. Some examples of advice that may be allocated to tax planning or production of income are:

•  Tax advice concerning the rights to claim dependency exemptions;
•  Characterization and treatment of alimony obligations;
•  Costs of determining the adjusted basis of assets in the property settlement;
•  Costs of obtaining advice regarding the tax consequences of divorce or separation instrument; or of  gathering information for actual preparation of tax returns; and
•  Costs of securing an interest in a qualified retirement plan (such as those paid to divide your and your former spouse’s defined contribution plans).

     For legal fees incurred in connection with a divorce to be deductible, your attorney must determine what portion of the fee is allocable to tax advice as opposed to non-deductible advice or other services and render an itemized bill. According to IRS Revenue Ruling 72-245, the agency will accept a lawyer's allocation of his or her fee between tax and nontax matters where the attorney allocates primarily on the basis of the amount of time attributable to each, the customary charge in the locality for similar services and the results obtained in the divorce negotiations.

Note: This information is general in nature and should not be construed as tax advice. You should consult with your tax accountant

(01/29/14)