Joint or Sole Custody?

For the sake of the children, the goals of divorcing parents should be the same: involvement of both parents in the lives of the children and mitigation of conflict between the parents. These two factors should dominate all others when thinking about custody.

A joint custody solution gives a psychological boost to the parent who would otherwise be the noncustodial parent. But, even in a sole-custody situation, generous time-sharing (combined with open communication between parents) can create an environment where a noncustodial parent is significantly involved in the children’s lives.

Is joint custody right for you? That depends a great deal on the ability of you and your spouse to get along. If you are to share decision-making, you must be able to sit down with your former spouse in a noncombative atmosphere and make decisions together. Shared values and parenting styles make this custody style more viable.

Here’s what psychologists have found after long-term studies of families in joint custody and sole custody arrangements:

  • Joint custody is a viable option only if the parents have an amicable relationship with each other, communicate well, and understand the nuances of their kid’s day-to-day routines. Parents in this situation feel more involved in their children’s lives than the noncustodial parent in the sole custody arrangement. On the other hand, in a family where one parent says “black” and the other parent says “white,” the children are better off with a sole custody arrangement to reduce the possibility that their parents will fight over every decision that must be made on their behalf.

  • For parents not on friendly terms, joint legal custody, that is to say, joint decision-making, means more room for disagreement and continuation of conflict. These parents are more likely to return to court than parents who have one decision-maker (sole custody).

  • If you’re able to communicate about the kids, are willing to live in close proximity to your ex, and have the time and resources to share “possession and access” (as they say in Texas) or “physical custody” (as it’s more commonly called), then it can be a great thing for everyone. But generally, only children who tend to be easy-going by nature can adapt well to this kind of living arrangement. Children who do poorly with constant change, have difficulty adjusting to new situations, and seem to need a great deal of stability and security in their lives don’t do well with joint physical custody.

In short, if you can agree to most of the following statements, joint custody could work for your family:

  • I will communicate openly with my ex-spouse regarding the children’s needs and activities.

  • I can be flexible in working with my ex-spouse and put my children’s needs first.

  • I will never bad-mouth my ex-spouse in front of my children. On the contrary, I will show nothing but respect for my children’s other parent.

  • I will respect my ex-spouse’s right to have his or her own house rules and not undermine them.

Be honest with yourself. If your feelings don’t allow you to accept these guidelines, then get some counseling. If that doesn’t work, then joint custody is not a good choice for your family.


IRS Declares Spouses More Innocent Than Before

Dreamstime_117654 The innocent spouse rules have been liberalized in new tax legislation, making it easier for spouses to qualify for tax relief. In addition, the legislation allows a spouse to limit her liability on a joint return to her separate liability. This is a boon to separated spouses who continue to file joint returns with their spouses, and it offers greater protection to divorced spouses who face liability for taxes on returns they jointly filed during marriage.

The innocent spouse provisions provide tax relief to a spouse who jointly files with her husband (or vice versa) if there was a tax understatement attributable to her spouse and she did not know about the understatement when she signed the return, nor did she have reason to know of the tax understatement. If she knew there was an understatement but didn’t realize the extent of the understatement, she may be granted partial relief.

Under new Internal Revenue Code Sec. 6015, a spouse can now elect to limit her liability for unpaid taxes on a joint return to her separate liability amount. That amount is the tax on items that would have been allocated to her had she filed a separate return. There’s one catch though – any item of which the spouse had actual knowledge is allocable to both spouses. The good news is that the IRS must prove that she had knowledge of the misstatement or omission that caused the deficiency.

To qualify for the separate liability election, the taxpayer must be divorced, legally separated or living apart from her spouse for at least a year at the time she files the election. The election must be made within two years after the IRS begins collection efforts against the innocent spouse. But even if the spouse fails these tests, the IRS can grant relief from tax liability if, based on all the facts and circumstances, it is inequitable to hold her liable.

The new rules take effect immediately, as long as the taxes remain unpaid. A spouse who has already paid more than her share of the liability can’t receive a refund under the new law, although there is a special exception for taxes paid between July 22, 998 and April 15, 1999. For that reason, anyone with unpaid taxes who might qualify for the separate liability election should consider her options carefully before she pays any portion of the tax due. Since tGinita Wall, CPA, CFP, CDS here is no downside for the spouse filing the separate liability election, she should make the election in all situations in which she qualifies and is faced with a tax deficiency.

Relief from tax deficiencies will not be granted if the item giving rise to the tax deficiency is attributable to the spouse requesting relief, if she had reason to know of the unpaid tax liability, if she significantly benefited from the unpaid tax liability, or if a divorce decree or separation agreement legally requires her to pay the tax liability.

SOURCE: in an article by Genita Wall, CPA, CFP, CDS   

Joint Custody and the Best Interest Standard

“In the best interest of the child” or “child’s best interest” is the famous mantra of the family court prevalent in child custody proceedings today, yet its interpretation by the family court or judges is often arbitrary and its meaning is still obscure. Moreover, the law regarding child custody varies from state to state, leaving no uniform legal position regarding what is in the best interest of the child. Some states have a preference and presumption towards joint custody, while others do not. Some states are amending laws to adopt a preference and presumption for joint custody, while others are amending laws to allow joint custody only when the parents agree to it.

Like most states, the standard for child custody determination in California is the overall best interest of the child such that it assures the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents. However, California does not establish a preference or a presumption for or against joint custody or custody to one parent, and therefore leaves the parenting plan decision up to the discretion of the family court or judge. In 1979, California adopted a presumption for joint custody, but later amended the law in 1994 to allow joint custody only when the parents agreed to it. According to the American Bar Association website, other states such as Connecticut, Maine, Michigan, Mississippi, Nevada, Vermont, and Washington also adopted laws in favor of joint custody, but only when the parents agreed to it. Other states, such as the District of Columbia, Florida, Idaho, Iowa, Kansas, Louisiana, Minnesota, Missouri, Montana, New Hampshire, New Mexico, and Texas, have laws favoring a presumption for joint custody. In a few other states, joint custody is not specifically authorized.

Regardless of each state’s position for or against a presumption or preference in favor of joint custody and whether or not it has been specifically authorized, overall there appears to be a growing trend in favor of joint custody and more and more bills are being introduced to adopt a presumption that joint custody is in the best interest of the child unless certain circumstances apply (such as convincing evidence that a parent is unfit or that it would not be in the best interest of the child to award joint custody).

If you are involved in a child custody dispute, whether it is the initial child custody determination or a child custody modification, you would be wise to consult a family law attorney in your jurisdiction to help you learn about the law and the standard for custody determination in your area and how these laws apply to your specific situation. Further, you will want to learn what factors the court will consider in determining the best interest of the child so that you are fully aware of your child custody rights and responsibilities.


Georgia Divorce Laws

Fotosearch_fotosearch_sma_340 Georgia Domestic Relations Code

RESIDENCY REQUIREMENTS:  To file for a divorce in Georgia, at least one spouse needs to be a resident of the state for six months before filing a petition for divorce.  [Based on Georgia Code – Section: 19-5-5]

LEGAL GROUNDS FOR DIVORCE:  The following grounds for divorce are recognized in the state of Georgia: (1) marriage between close blood relations; (2) Mental incapacity at the time of the marriage; (3) Impotency at the time of the marriage; (4) Force, menace, duress, or fraud in obtaining the marriage; (5) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband; (6) Adultery in either of the parties after marriage; (7) Willful and continued desertion by either of the parties for the term of one year; (8) The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer; (9) Habitual intoxication; (10) Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health; (11) Incurable mental illness; (12) Habitual drug addiction, consisting of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16; (13) Irretrievable breakdown of the marriage. [Based on Georgia Code – Section: 19-5-3]

LEGAL SEPARATION:  When spouses are living separately, either spouse may petition the court for alimony or child support without having a divorce pending.  The other party shall be notified of such a petition, and the judge can grant such an order, to be enforced in the same manner as a divorce. [Based on Georgia Code – Section: 19-6-10]

MEDIATION OR COUNSELING REQUIREMENTS:  In contested divorce cases, the judge may refer the couple to an appropriate alternative dispute resolution program prior to a trial, if such method is reasonably available without additional cost to the parties.  [Based on Georgia Code – Section: 19-5-1]

PROPERTY DISTRIBUTION:  Georgia is an equitable distribution state. At this time, there are no statutes regarding what the court considers when distributing the property in a divorce case. Generally, the separate property of each spouse shall remain the separate property of that spouse. [Based on Georgia Code – Section: 19-3-9]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:  Alimony may be awarded on either temporary or permanent basis.  A party shall not be entitled to alimony if it is established by a preponderance of the evidence that the marital discord was caused by that party’s adultery or desertion. Alimony may be awarded in accordance with the needs of the party seeking alimony, and the ability of the other party to pay.  Unless otherwise provided, alimony shall end upon the remarriage of the party receiving alimony.  In determining whether or not to grant alimony, the court shall consider evidence of the conduct of each party toward the other. The following shall be considered in determining the amount of alimony, if any, to be awarded: (1) The standard of living established during the marriage; (2) The duration of the marriage; (3) The age and the physical and emotional condition of both parties; (4) The financial resources of each party; (5) The time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment; (6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party; (7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and (8) Such other relevant factors as the court deems equitable and proper. [Based on Georgia Code – Sections: 19-6-1 and 19-6-5]

SPOUSE’S NAME:  In all divorce actions, a party may enter a request for the restoration of a maiden or prior name. If a divorce is granted, the judgment or decree shall specify and restore to the party the name so requested for in the pleadings. [Based on Georgia Code – Section: 19-5-16]

CHILD CUSTODY:  Custody may be awarded to either parent based on the best interest of the child or children and what will best promote their welfare and happiness.  If the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child´s selection shall be controlling, unless the parent so selected is deemed unfit to have the custody of the child. In all cases in which the child has reached the age of at least 11 but not 14 years, the court shall consider the desires, if any, and educational needs of the child in determining which parent shall have custody.

The court at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody where appropriate. [Based on Georgia Code – Sections: 19-9-1 and 19-9-3]

CHILD SUPPORT: Georgia uses an income-shares model to determine the amount of child support.  The court will consider the existence of special circumstances and may adjust child support based on: (1) Ages of the children. (2) A child’s extraordinary medical costs or needs in addition to accident and sickness insurance, provided that all such costs or needs shall be considered if no insurance is available. (3) Educational costs. (4) Day-care costs. (5) Shared physical custody arrangements, including extended visitation. (6) A party´s other support obligations to another household. (7) Income that should be imputed to a party because of suppression of income. (8) In-kind income for the self-employed, such as reimbursed meals or a company car. (9) Other support a party is providing or will be providing, such as payment of a mortgage.  (10) A party´s own extraordinary needs, such as medical expenses. (11) Extreme economic circumstances including but not limited to: unusually high debt structure or unusually high income of either party or both parties, which shall be construed as individual gross income of over $75,000.00 per annum. (12) Historical spending in the family for children which varies significantly from the percentage table. (13) Considerations of the economic cost-of-living factors of the community of each party. (14) In-kind contribution of either parent. (15) The income of the custodial parent. (16) The cost of accident and sickness insurance coverage for dependent children included in the order. (17) Extraordinary travel expenses to exercise visitation or shared physical custody. (18) Any other factor which the trier of fact deems to be required by the ends of justice, as described below: 

Child support continues until the child becomes 18 years of age, dies, marries, or otherwise becomes emancipated, except that if the child becomes 18 years of age while enrolled in and attending secondary school on a full-time basis, then such support shall continue until the child completes secondary school, provided that such support shall not be required after the child attains 20 years of age. A non-custodial parent may be ordered to provide insurance for the child or children for so long as he or she is obligated by this order to provide support. Where applicable, the court shall also include income deduction orders. [Based on Georgia Code – Section: 19-5-12]


Teacher Conferences Are Important For Divorced Or Divorcing Parents

Teacher When parents are going through a divorce or are divorced, usually one parent has little knowledge about what is happening in his or her child’s classroom. What do you know about how well your child or children did in school this year? Will your offspring need to attend summer school, have a tutor, or be ready to “graduate” to the next grade without any problems? Only your child’s teacher has the answer.

Of course, most parents know that parent/teacher conferences are a great way for them to learn about their child’s daily activities in school, whether the child is doing well, or if their child needs help at home. Yet, many divorcing parents don’t communicate with the teacher during this trying time in their lives, or may turn over the responsibility to the other parent.

However, if you are divorcing or divorced, abdicating educational responsibilities is not in the best interest of your child. So, what can you do to avoid conflict with your spouse, yet remain actively involved in your child’s education?

Make sure your child’s teacher is the first one informed if there is a pending or final divorce. Your child spends more time in school than anywhere else, and this situation might have a negative affect on your child. All teachers are willing to have a conference with a parent at the parent’s request. Find out what is happening with your child.

If the parents are cordial to each other, they can attend the parent/teacher conference together. That way, both parents have the same information and can ask the same questions regarding their child’s education. If only one parent attends, the other one is left in the dark. Unfortunately, in most divorce situations, this is exactly what happens.
More often than not, sitting together with a teacher is virtually impossible due to the antagonistic and negative vibes radiating from each parent. This makes the teacher uncomfortable, and in this hostile atmosphere, you may not receive all the information you need to know about your child’s academic achievements or areas needing improvement.

To address these issues, ask the teacher to notify both parents about days and times available for in-person or phone conferences. When necessary, schedule individual in-person or phone conference time with the teacher. This will alleviate divorced parents from having to be together, but at the same time will allow equal time with the teacher. The result is that each parent learns the same information about their child.

If only one parent is meeting the teacher in person or having a telephone conference, he or she should take notes. Even if you and your ex aren’t on speaking terms, sending him or her notes about the conference is in the best interest of your child. Both of you need to have the same philosophy and goals regarding your child’s education.

You and your ex still have a child you need to parent together. School is where children learn. If parents aren’t on the same page regarding the child’s educational goals, then the child’s well-being is unnecessarily harmed.

SOURCE: in an article by Brian James, C.E.L. and Associates