Changes to Federal Tax Law re. Child Rerlated Tax Benefits

Recent changes to federal tax law create a “Uniform Definition of Child” that is effective beginning in tax year 2005. The new law creates a uniform definition of qualifying child for the tax benefits that relate to children. Under the new law, a qualifying child must meet only three tests, relationship, residence, and age:

1. Relationship: The child must be the taxpayer’s son, daughter, stepchild, sibling, stepsibling, or a descendant of such individuals. Foster children placed with the taxpayer by authorized placement agencies would satisfy the relationship test. If the child is the taxpayer’s sibling or stepsibling or a descendant of any such individual, the taxpayer must care for the child as if the child were his or her own child.

2. Residence: The child must live with the taxpayer in the same principal place of abode in the United States for over half the year. Military personnel on extended active duty outside the United States would be considered to be residing in the United States. As under current law, the taxpayer and child are considered to live together even if one or both are temporarily absent due to special circumstances such as illness, education, business, vacation, or military service.

3. Age: The child must be under the age of 19, a full-time student if over age 18 and under age 24, or totally and permanently disabled. However, as under current law, qualifying children (who are not disabled) must be under age 13 for purposes of the child and dependent care tax credit and under 17 (whether or not disabled) to qualify for the child tax credit.

A tie-breaker rule similar to the current EITC tie-breaker applies if more than one qualifying taxpayer claims a benefit for the same child.

This new rule affects the following tax benefits.

* The dependency exemption.

* The child tax credit.

* The earned income credit.

* The dependent care credit.

* Head of household filing status.

Soldiers and Sailors Civil Relief Act – A General Overview

The Soliders and Sailors Civil Relief Act (SSCRA) is a protective device for U.S. soldiers and sailors during a time of conflict or training. See 50 U.S.C. App. The SSCRA is not intended to be used as a shelter from facing legal and family responsibilities. Because of the current extensive and often extended deployments of National Guard and regular military members, it is important to understand what the SSCRA does and does not apply to in the family law area. There are four key SSCRA provisions that are important to observe when enforcing child support:

First, the SSCRA permits stays of civil court proceedings whenever military service prevents a plaintiff or defendant in military service from asserting or protecting a right. Members’ requests for a stay of proceedings under SSCRA must be granted unless the members’ military service does not materially affect their ability to defend themselves. Note that the Department of Defense recently revised its regulations in this area. DOD Directive 1327.5 section 6.25 now specifically provides “When a service member requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave.” Note also that some courts might not consider presence of service member necessary to the proceeding; thus, no stay will be granted. The facts of each case will determine whether the trial court abused discretion in refusing a stay request.

Second, the SSCRA provides that the maximum duration of a stay of proceedings is the member’s period of military service plus three months after discharge. Following this period, the member must appear in court.

Third, the SSCRA affords service members relief against default judgment by providing potential means to have the judgment reopened. If there is default of any appearance by the defendant, before a party can obtain a default judgment, he/she must submit an affidavit stating whether the defendant is or is not in the military service or that the plaintiff does not know whether defendant is in the military service. A judgment obtained without the affidavit is voidable (not void) upon defendant’s showing that presentation of the defense was prejudiced by defendant’s military service. The court then must appoint an attorney if the defendant is in the service and does not have an attorney present in court or if the plaintiff does not know whether the defendant is in the service. The responsibility of the court appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant’s behalf. Members may request to reopen a default judgment if there has been no appearance, the service member has a meritorious or legal defense, and military service adversely affected the member’s ability to defend. The application to reopen must be to same court that rendered the judgement. The SSCRA does not empower a federal court to collaterally review, vacate, or impede decisions of a state court.

Fourth, the SSCRA provides that any judgment or garnishment may be stayed or vacated unless military service does not materially affect member’s ability to comply. Service members can, for example, request modification of child support or alimony. Courts may grant prospective relief as well. Members can initiate a proceeding to determine extent of their support obligations because of changes in circumstances when they entered active duty.

These are some of the basic aspects of the SSCRA as they apply to the family law area and should only be used as a general guide. The facts and circumstances of any particular case vary, as will the result and the degree of protection, if any, afforded by the SSCRA.

Military Deployments and Family Care Plans

The Des Moines Register recently reported that Iowa, like many other states, has a record number of residents deployed on active military duty. This is having an enormous impact on families and the Iowa Court of Appeals recently addressed in great detail the legal significance of having a “Family Care Plan” in place to provide for the care of a soldier’s family when the service member is deployed on active duty. The Family Care Plan and the protections provided by the Servicemembers Civil Relief Act are described in the case of In re Marriage of Grantham, particularly the right to a stay of proceedings while deployed. The Court noted that the United State Supreme Court’s 1943 ruling that the Act “is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation” “rings as true today as it did then” during the height of World War II. The Court emphasized that “practically speaking, the Family Care Plan steps in for a soldier; it governs who will exercise the soldier’s rights under the decree while the soldier is on active duty. Thus, Family Care Plans take no rights from the other party to the decree; they merely exercise the soldier’s rights while on duty.”

More generally, the Grantham decision is also significant as it is the first Iowa appellate decision that expressly holds “temporary custody orders are not statutorily authorized on petitions for [custody] modification.”

Servicemembers Civil Relief Act and Child Custody

In a case involving an apparent conflict between the “best interests” standard the federal Servicemembers Civil Relief Act (“SCRA”), the Iowa Supreme Court has reversed the recent Court of Appeals decision of In re Marriage of Grantham that the SCRA automatic stay prevented a custody modification while a servicemember-parent was deployed. The decision appears to be largely fact-based on the particular circumstances of this case, where concealment of important information by one parent from another may have occurred.

Of import more generally is the affirmance of at least one procedural aspect of the Court of Appeals decision:

We agree with the court of appeals that the filing of the petition to modify the child custody provisions of a dissolution decree does not carry with it a right for the determination of temporary custody pendente lite. Modification proceedings differ from original actions in this regard because, in original actions for dissolution, the parties start out with equal rights to child custody, and their separation creates a need for temporary orders until permanent orders are entered at the conclusion of the litigation. As the court of appeals correctly noted, once child custody has been finally settled in a dissolution decree, the provisions of the decree should continue in force until such time as the decree is modified. No need exists for temporary orders in the interim.

The decision appears to carve out an unstated exception to the rule where, as in this case, the custodial parent is absent and has delegated care-taking responsibilities to a third-party instead of the other parent. This exception should be limited to similar cases where the custodial parent is physically absent from the children, as in a military deployment. It does, however, raise a question as to the validity of military family care plans.

Decision expected in Civil Union Termination Case (Alons v. District Court)

The Iowa Supreme Court has the following case on its expected list of decisions to be issued June 16th:

Alons v. Iowa Dist. Ct. General case description: The plaintiffs petitioned for certiorari review to challenge the district court’s termination of a civil union. The petition was granted and the plaintiffs argue they have standing to bring this matter by virtue of their status as members of the public, as legislators (both state and federal), as married persons, as taxpayers, as a minister, and as a church. They also contend this court may review this matter by invoking its supervisory and administrative jurisdiction to exercise control over all inferior judicial tribunals. Iowa Const. art. V, § 4. The plaintiffs argue the district court exceeded its jurisdiction in dissolving the civil union and its decree should be set aside.

Not mentioned in the court’s description is that the Court sua sponte ordered the issue of the plaintiffs’ standing to bring the challenge to the district court’s action. The Court’s docket lists “dissolution of civil union, standing to sue or raise issue, jurisdiction, and subject matter jurisdiction” as the general legal issues presented. The Court’s decisions are normally posted at on Friday morning at approximately 9:00 a.m. CST.

The district court granted a decree terminating a female same-sex couple’s civil union that was originally obtained in Vermont. The parties resided in Iowa at the time of the court’s order terminating their civil union. Iowa does not have a civil union statute. The Court apparently granted the termination under its general equitable powers. Here are some prior press quotes about the case:

An Iowa county judge is under fire after granting a divorce between two lesbians who were joined in a civil union in Vermont. In December, the Associated Press reported that Judge Jeffrey Neary of Woodbury County approved the split for Kimberly Brown, 31, and Jennifer S. Perez, 26, last month, claiming he didn’t realize the two were a same-sex couple. But when he figured out what happened, he decided not to reverse the divorce decision. “I think we will see (civil union divorces) periodically, and we will have to decide how we are going to handle these,” he told the Sioux City Journal.

Even though Iowa is one of 37 states to ban same-sex marriage, Neary feels his ruling was necessary. “If I’m presented with a dispute that has to be resolved in my courtroom, or is before me that affects the rights of Iowans, I feel an obligation to solve that problem,” Neary told the AP. “I don’t believe I’m recognizing same-sex marriage.” Neary claimed the divorce was legal under the Constitution’s “Full Faith and Credit Clause,” which requires states to recognize the laws of other states.

But Iowa state Sen. Neal Schuerer, a Republican, disagreed, calling Neary’s actions “judicial activism at its worst. The judge was wrong. He should have backed away and sent them back to Vermont,” Schuerer told the AP.

As could be expected, a number of parties have filed Amicus Curiae briefs with the court, including the Iowa Civil Liberties Unions, the American Civil Liberties Union, and the Lambda Legal Defense Fund. The Iowa Attorney General’s office has also appeared on behalf of the District Court. The Appellant, Dwayne Alons, is an Iowa legislator from Iowa’s 4th District. His website describes himself as “mature, conservative, and pro-family.”

Federal Court Upholds “Defense of Marriage Act”

The U.S. District Court for the Central District of California has upheld the 1996 federal “Defense of Marriage Act.” The ruling, available here, affirms the constitutionality of the DOMA statute even though the law “has a disproportionate effect on homosexual individuals. ” The Court found the government’s desire to promote procreation is a valid reason for infringing on the rights of same-sex couples.

Family Educational Rights and Privacy Act

The “Family Educational Rights and Privacy Act” (“FERPA”), 20 U.S.C. 1232(g), with regulations at 29 C.F.R. Part 99, gives both parents the right of access to information about their children regardless of physical or legal custody status. FERPA only provides a right to information regardless of custodial statuts; it does not provide a right of physical access to the child.

“Defense of Marriage Act,” Child Custody, and Civil Unions – The Virginia Answer

In a case that has been closely watched, the Virginia Court of Appeals has issued an opinion that Virginia must give full faith and credit under the Parental Kidnapping Prevention Act (“PKPA” to a custody determination made by a Vermont court growing out of a Vermont civil union, in spite of the Virginia “Marriage Affirmation Act.” The opinion holds that the federal “Defense of Marriage of Act” (DOMA) does not create an exception to the PKPA and that both statutes must be given effect. The opinion includes no discussion about the relationship between Virginia’s Marriage Affirmation Act and Virginia’s version of the UCCJEA.

Interesting Decision re. Federal Prosecution for Non-Payment of Child Support

In an interesting (in a lawyerly kind of way) decision, the Eleventh Circuit Court of Appeals overturned the federal conviction of a father who failed to pay child support. The Court found that the federal statute in question, the “Child Support Recovery Act,” 18

U.S.C. § 228(a)(1) (2000), requires that the “government must prove that the defendant knew his child resided in another state.” In this particulate case, it was alleged that the custodial parent moved the child from state to state and that the defendant/payor did not know where his child lived. Although the government argued that the the statute’s requirement that the child reside in a different state than the payor was merely jurisdictional, the Court found otherwise and held that knowledge of the out-of-state residency requirement was a substantive element of the statute required for conviction.

How the Court arrived at this conclusion is itself very interesting, particularly the concurring opinion’s use of an exchange between two Senators discussing the legislative history of an unrelated statute.

Decision: U.S. v. Fields.

U.S. Supreme Court Accepts Certiorari in QDRO Case

The United States Supreme Court accepted certiorari in the 5th Circuit case of Kennedy v. E.I. Dupont, 497 F.3d 426 (5th Cir. 2007). The issue the Court will consider is limited to whether a Qualified Domestic Relations Order (QDRO) is the only valid way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under ERISA. The case involves a former spouse who waived her right in the divorce decree to receive any part of her husband’s “saving and investment plan” provided by Dupont. The husband was the “participant” in the pension plan; the wife would have been the “alternate payee” had she received a portion of the husband’s plan benefits. The plan qualifies as a qualified ERISA plan. After the divorce, the ex-husband/employee never changed his beneficiary designation before his death. The plan paid the ex-wife and the husband’s estate sued the pension plan. The 5th Circuit held the waiver of the wife’s beneficial interest in the divorce decree was prohibited by ERISA’s “anti-alienation” provisions. The 5th Circuit Court of Appeals decided that the only method by which a participant’s or beneficiary’s interest in an ERISA-covered plan can be accomplished is by QDRO. The court also noted that the cases involving waivers of ERISA-covered life insurance policies are not applicable here since those are welfare plans and not pension plans there therefore the anti-alienation provisions are not applicable. There is a conflict of decisions by the various federal courts of appeal on this issue. The 5th Circuit Court of Appeals decision is available in PDF format . (URL last visited 2/20/2008).