When going through a divorce, you and your spouse may have property that must be divided. Before deciding how your property should be divided, you must determine what property should be divided. In doing this, you should know the difference between separate and marital property.
Separate property is generally property acquired by a party prior to the marriage. Marital property is property that is acquired throughout the course of a marriage. While these distinctions seem clear enough, problems arise when separate property is co-mingled with marital property throughout the course of a marriage such that it becomes unclear what each party is entitled to after a divorce.
Many issues are covered when getting divorced or once you are divorced, one that people often forget about or don’t put much thought into is how to file taxes during a divorce action, or what to do after a divorce is final.
When you are married you have various options as to how to file your taxes each year. The purpose of this blog is not to tell you how to file, or the benefits of each type of filing, but more what “can” you do, or what are you allowed to do.
Until there is a order from the court as to how the parties are to file for taxes, you are free to file just as you did while you were married. Each marriage has its own way of dealing with finances including how they file for taxes, and you may continue to do so while a divorce is pending.
Now clearly during the pendency of a divorce, the parties often cannot get along to make any decisions, it has been my experience that usually parties can agree to hand the taxes over to a professional to have them completed. I usually recommend that the tax professional prepare the returns each way possible and that the couple should file them in whatever way will achieve the greatest overall tax benefit to both parties.
While this is how I recommend it be completed it does not need to be done this way. Filing taxes each year is each person’s individual obligation to get completed, and no one, not your spouse, your tax professional, your attorney or even the Judge can “make” you file a joint return with your spouse.
Filing taxes is a federal obligation, and how you decide to file them is based on your personal financial situation. As it is a federal obligation, the state courts do not technically have the authority to require you to file a joint return.
Once you have a Decree of Divorce, it should include how you will deal with ongoing taxes and who gets to claim the minor children. It is common to share equally the tax benefits for the children. If there are an uneven number of children, usually the parties will flip flop who receives the greater number of children on their taxes. For example if there are three children, one party will get to claim two children one year, and then only one the following year.
Additionally Utah law provides that the court may not award a tax exemption for minor children if that party is not current on their child support obligations. It would behoove you to include this in your Decree as well so there is no question as to how it will apply.
Lastly, many parties include a “buy-out” provision which says that if one party would receive a greater benefit than the other in claiming the child(ren) they may pay the other party what they would have received from claiming the child(ren) and then claim them on their taxes. But this is not automatic, you need to include it in your Decree if you want this option.
If you’re going through a divorce or parenting issue, you may be confused about what the different types of child custody are and what they mean for you as a parent. If, after reading this, you still have questions, please feel free to call our office at 801-784-0529.
Custody is divided into two categories. The first is physical custody, which refers to where the child actually lives or the amount of “overnights” each parent is assigned. The other is called legal custody and refers to who has authority to make important decisions regarding the child. These two categories are laid out in the Utah Code under Title 30, Chapter 3 in Section 10.1. Here is the link in case you want to visit it yourself:
Both types of custody can be discussed in terms of sole or joint custody. Sole custody means held primarily or completely by one parent, while joint custody essentially means custody "shared" between both parents.
In general, there is a presumption of joint legal custody (both parents would be able to make important decisions regarding the child), where as physical custody is determined in terms of what is in the best interest of the child. There are several factors the court will evaluate to determine which arrangement is best for the child. All of those factors are laid out in the Utah Code under Title 30, Chapter 3 in Section 10.2(2). Here is a link if you are interested in reviewing the factors: http://le.utah.gov/xcode/Title30/Chapter3/30-3-S10.2.html
In order for you to get a better idea of what joint and sole physical custody looks like logistically, joint custody is where the child spends more than 111 nights (more than 30% of each year) at each parent’s throughout the course of one year. Sole physical custody generally means the child lives more than 225 nights at one parent’s home throughout one year.
It is important to note, in general, even when parents share joint legal custody, the mother will be assigned the final decision making authority. If at some point, the parents do not agree and the mother makes a final decision for the child, the father can contest that decision through mediation and court.
We understand that the different custody scenarios can be confusing, and our attorneys at Atticus Legal Group are willing to answer any questions you have regarding your custody action. Call us at 801-784-529 for a free consultation.
The holidays are finally over, if you are divorced and have children you have likely just gone through difficult period trying to divide parent time during the holidays. Now that it is over, I am sure you would like a nice break, and try to get back in to a set pattern without discussing parent time. I would suggest you take another route.
While summer may seem far away, and all you can think about is how to get the kids homework completed tonight, it is time to start planning your summer vacation and extended parent time for the summer. While your Decree of Divorce may spell out specifically what days you have and don’t have your children, most Decrees and parenting plans leave extended parent time up to Utah Code.
Extended parent time, is defined in two parts depending on whether you are the custodial or non custodial parent.
Utah Code 30-3-35 provides in part:
Extended parent-time with the noncustodial parent may be:
(i) up to four consecutive weeks when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays;
(ii) two weeks shall be uninterrupted for the noncustodial parent; and
(iii) the remaining two weeks shall be subject to parent-time for the custodial parent for weekday parent-time but not weekends, except for a holiday to be exercised by the other parent.
In layman’s terms, as the non-custodial parent you get a total of 4 weeks of extended time during the summer. The first two week period is a solid, with no interruption (unless you have right of first refusal, but that is not the subject here today) by the other parent. You get the right to this regardless of whether you go out of town, or simply stay at home and spend more time with your children.
The second two week period is interrupted by the other parent, where they can have parent time during the week (usually a midweek visit on Wednesday), but you keep the children for the remainder of the time.
The custodial parent also gets extended time, the code provides: “The custodial parent shall have an identical two-week period of uninterrupted time when school is not in session for purposes of vacation.”
In layman’s terms, the custodial parent is also allowed a two week period of uninterrupted time wherein they could schedule their trips or just spend time with the children without interruption.
The fights usually arise over scheduling. Luckily the code has this figured out. “Both parents shall provide notification of extended parent-time or vacation weeks with the child at least 30 days prior to the end of the child's school year to the other parent and if notification is not provided timely the complying parent may determine the schedule for extended parent-time for the noncomplying parent.”
In layman’s terms, send your notification more than 30 days before the end of the school year, and the sooner the better. If you give notice in January of when you want to take your time, this gives the other parent ample time to plan their summer around your vacations. Additionally, the code clearly states that if notification is not provided 30 days before school gets out by one party then the party who did comply with the 30 day notice gets final say as to what the holidays will be for the other party. This is not the place you want to be in.
In order to get the extended time you want in the summer it will take some planning. Planning a little now will save a ton of stress, anxiety and uncertainty as the summer comes closer. And always remember when dealing with your co-parent to keep an open mind. It’s not about being “right”, it’s about being flexible for your children’s benefit.
With tax season coming around, many parents call Atticus Legal Group with questions regarding who should claim the child as a dependent for federal and state income tax purposes.
If a Decree of Divorce or Related Order has been Entered.
If there is a court order declaring which parent should claim the child(ren) as a dependent for federal and state income taxes, the answer is simple: follow the court order.
If there is no Order or Ongoing Action.
If you are the custodial parent, and the noncustodial parent is entitled to claim the child(ren) as a dependent for federal and state income tax purposes under the Decree of Divorce or related order, you will need to sign a Form