- Private School Tuition;
- Joint tax returns during divorce;
- What just happened in court;
- Child abductions under the Hague Convention;
- Cohabitation and alimony;
- Marriage Planning and Divorce.
WILL FAMILY COURT ORDER PARENTS TO PAY PRIVATE SCHOOL TUITION FOR THEIR CHILDREN?
The threshold determination is whether private school is in the best interest of the child. Assuming it is, the court will examine whether the parents are reasonably able to afford the cost of tuition.
The first factor the court will examine is whether the children were enrolled in private school before the divorce. The status quo and maintaining the consistency for children after divorce is usually in their best interest. The authority is clear that a major factor in whether or not to continue children in private schooling after divorce is whether or not they attended private school before divorce. In a Florida case, the court found that private school education should be awarded where the parties had the ability to pay, the expense was consistent with the customary standard of living and the education is in the children’s best interest. Where both children had attended school their entire lives, it is in their best interest to continue.
Next, where the parents are able to afford private school tuition and it was consistent with the parties’ lifestyle, it should be ordered opined a Louisiana court. NRS 125B.080 gives the court the authority to order one or both of the parents to pay for their children’s private school education. Once the court determines whether or not private school education is in the children’s best interest, the issue then becomes how the expenses should be paid.
CAN THE FAMILY COURT MAKE DIVORCING PARTIES FILE A JOINT TAX RETURN?
The short answer is yes. Under NRS 125.150 the court has the authority to make an equitable disposition of the community property of the parties. When making an equitable distribution of the parties’ community property, the trial court must consider the tax consequences of the property division. In doing so, the court should consider the benefit each party receives from the yearly marital income, as well as the tax liability the income creates. When dividing community property, “trial courts must consider tax consequences when, as in the case at hand, there is proof of an immediate and specific tax liability.” Ford v. Ford, 105 Nev. 672, 677, 782 P.2d 1304, 1308 (1989). The court, therefore, likely has the discretion to compel parties to file joint income tax returns when equitable.
While there are no cases on point in Nevada, other jurisdictions are split on the issue. The majority of states, however, derive the court’s authority to compel parties to file income tax returns jointly from the court’s discretion to consider tax issues when equitably distributing marital property. These states include Alaska, Arkansas, Colorado, Kentucky, Minnesota, Mississippi, New Hampshire, New Jersey, North Dakota, and Ohio. Those states that deny the court has the authority to compel the parties to file joint income tax returns base their reasoning on the individual’s right to file either jointly or separately under the Internal Revenue Code. Despite this federal statutory right, most courts believe that the right may be abridged by state courts. Trial courts must be cautioned, however, when deciding to compel parties to execute joint tax returns because of the “potential liability to which the parties would be exposed, and because there generally exists a means by which to compensate the parties for the adverse tax consequences of filing separately.” When there is a significant financial benefit to filing the tax returns jointly, the court has an obligation to consider the tax implications of its decision. Id. As a result, the court should have the discretion to compel the parties to file joint tax returns.
WHAT JUST HAPPENED IN COURT?
You just spent time in Las Vegas family court listening to attorneys discuss intimate details of your life and a judge making decisions about those intimate details. Your head is swimming with legal jargon and orders. Maybe there was some yelling by the attorneys and the judge sounded mad. You may not be sure if what happened was good or bad for you. Maybe your ex’s attorney was loud and interrupted your attorney. You wonder if that means that he won, and you lost. You walk out of the courtroom in a fog and wonder “What just happened?” You turn to your lawyer who says that he is late for a hearing in another department and is gone down the hallway. Now what?
There are a few things to know that can make your experience in court more comfortable. More important, by having an idea of the purpose of each hearing and having a good idea of what to expect before you walk into the courtroom, you will be better prepared to take in what is happening.
First, find out the purpose of the hearing. What are the issues before the court? No attorney can tell you for sure what will happen in a given hearing, but your attorney can explain to you what the purpose of the hearing is and what she thinks will happen. Make sure and read any pleadings filed specifically for this hearing.
Second, during the hearing pay attention. Sometimes this is difficult to do as attorneys and judges may talk over each other and use words and phrases you do not understand. Recognize that you do not win in court by having the loudest attorney.
Ultimately, what matters most for you to know and understand right after the hearing is the judge’s orders. If the judge orders you to do something, you must follow the order. In most cases, the orders will be put in written form and you will receive a copy from your attorney. This, however, can take some time, so make sure that you follow the judge’s orders even if you do not have the written version in front of you yet.
For instance, if the judge says that he wants you to begin a visitation schedule the following day, you will not have a written order but will need to comply regardless. You do not want to fail to comply with an order and have to stand before the judge explaining that you did not know what you were supposed to do. Judges often respond to any excuse like that with: You were in court when I told you to do this, weren’t you?
With all of the action in court, it is easy to forget what you are hearing. Feel free to bring a pen and paper and take some notes during the hearing. Just be careful not to get so caught up in taking notes that you forget to pay attention to what you need to hear and understand. If you have specific questions for your attorney, write them down so that you do not forget them.
Finally, if you have any questions regarding what happened in court, make sure and speak to your attorney. Ask your attorney to tell you what happened, what you are required to do, and what you deadline is for doing it. Also, future hearing dates are often set during a hearing. Make sure you know when the next hearing date is.
Court can be confusing for litigants, and attorneys and judges can forget that. By preparing yourself and asking questions, you can ensure that your case runs smoother for you. In doing so, you may also minimize the conflict between you and your ex.
INTERNATIONAL CHILD ABDUCTIONS UNDER THE HAGUE
On December 23, 1981, the United States signed the Hague Convention on the Civil Aspects of International Child Abduction. With Congress’ enactment of enforcement legislation, the treaty became enforceable in the United States on April 29, 1988. The purpose of the Convention is to prevent the use of force to establish artificial jurisdictional links on an international level for purposes of obtaining custody of a child. While words like “abduction” and “force” are often used in reference to the Convention, it was not drafted to address violent kidnappings by strangers. It was aimed, rather, at the “unilateral removal or retention of children by parents, guardians or close family members.” Beaumont & McEleavy, The Hague Convention on International Child Abduction 1 (1999).
A Hague proceeding really boils down to one simple question: “Should a child be returned from one country for purposes of custody proceedings in another?” While this question is a relatively simple one, its answer involves a complex mix of law and fact and multiple other sub-issues. For example, when did the removal or retention at issue take place? Immediately prior to the removal or retention, in which state was the child habitually resident? Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? Was the petitioner exercising those rights at the time of the removal or retention? Did the petitioner consent or acquiesce to the child’s removal? Would the child suffer grave physical or emotional harm if returned to his or her habitual place of residence for custody proceedings? In other words, an international custody dispute under the Hague Convention is a complicated matter.
CAN COHABITATING CHANGE YOUR ALIMONY IN NEVADA?
The short answer is . . . maybe. Where alimony is modifiable, NRS 125.150(7) requires the court to consider any relevant factors when the payor spouse requests to have the alimony obligation modified. In Gilman v. Gilman, the Nevada Supreme Court adopted an “economic needs” test to determine if cohabitation should affect the payee spouse’s right to receive alimony. According to the Court, “Under this ‘economic needs’ test, the amount of spouse support reduction, if any depends upon a factual examination of the financial effects of the cohabitation on the recipient spouse.” There are ways, however, to draft a Decree of Divorce to protect you from changes in your former spouse’s life, whether you are the payor or payee. The Nevada family law attorneys at Pecos Law Group can make sure your Decree of Divorce protects you in the future.
MARRIAGE PLANNING AND DIVORCE IN NEVADA
When you get married in Nevada without a prenuptial agreement, you are expressly consenting to be bound by the laws of Nevada upon a divorce. Prenuptial agreements may not be considered “romantic,” but ugly divorces are even less romantic. It is generally easier to address potential problems or issues before marriage rather than during a divorce. If, however, for some reason you are unable or do not want to ask your prospective spouse to sign a prenuptial agreement, there are specific actions that you may take before marriage to mitigate some of your exposure to Nevada community property law.
Some of the same techniques that are used to protect one’s assets from a creditor may also be used to protect one’s separate property, even without a prenuptial agreement. The use of legal entities and trusts not only provide estate planning benefits, but may also provide some financial protection in a divorce where a prenuptial agreement was not used. Further, proper planning using separate bank accounts and avoiding commingling post marriage money with premarital money may also afford some protection. While these alternatives may afford some protection, they cannot completely replace the protections provided by a prenuptial agreement.
If you are already marriage, whether or not you are contemplating divorce, you may still simplify your community finances through a postnuptial agreement. Postnuptial agreements are similar to prenuptial agreements, but they are entered into between spouses after marriage. The scope of what a postnuptial agreement may accomplish is more limited than a prenuptial agreement and the enforcement is more scrutinized by the courts than prenuptial agreements. Postnuptial agreements remain relatively untested in Nevada, but may be useful in specific circumstances.
While proper planning before a prospective marriage may provide some financial protection, proper planning before a potential divorce may also be useful. In many cases there is not sufficient time to financially plan for a divorce. In other cases, however, there may be time to obtain benefits from planning a divorce at least several months in advance.