For Recently Married or Divorced Taxpayers (from the NCBA Family Law Section Listserv)

Five Filing Facts for Recently Married or Divorced Taxpayers




If your client was married or divorced recently, there are a couple of

things he or she will want to do to ensure the name on his or her tax return

matches the name registered with the Social Security Administration.



Here are five facts from the IRS for recently married or divorced taxpayers.

Following these steps will help avoid problems when your client files his or

her tax return.



1. If your client took his or her spouse's last name or if both spouses

hyphenate their last names, either may run into complications if they do not

notify the SSA. When newlyweds file a tax return using their new last names,

IRS computers can't match the new name with their Social Security Number.



2. If your client were recently divorced and changed back to his or her

previous last name, the client will also need to notify the SSA of this name

change.



3. Informing the SSA of a name change is a snap; just file a Form SS-5,

Application for a Social Security Card at your local SSA office.



4. Form SS-5 is available on SSA's Web site at www.socialsecurity.gov,

by calling 800-772-1213 or at local offices. It usually takes about two

weeks to have the change verified.



5. If your client adopted his or her spouse's children after getting

married, your client will want to make sure the children have an SSN.

Taxpayers must provide an SSN for each dependent claimed on a tax return.

For adopted children without SSNs, the parents can apply for an Adoption

Taxpayer Identification Number - or ATIN - by filing Form W-7A, Application

for Taxpayer Identification Number for Pending U.S. Adoptions with the IRS.

The ATIN is a temporary number used in place of an SSN on the tax return.

The W-7A is available on IRS.gov, or by calling 800-TAX-FORM (800-829-3676).





6. Links:



* Social Security Administration:
http://www.irs.gov/app/scripts/exit.jsp?dest=http%3A%2F%2Fwww.ssa.gov


* Form SS-5, Application for a Social Security Card (PDF):

http://www.ssa.gov/online/ss-5.pdf



* Form W-7A, Application for Taxpayer Identification Number for

Pending U.S. Adoptions (PDF 42K): http://www.irs.gov/pub/irs-pdf/fw7a.pdf

In Defense Alienation of Affection and Criminal Conversation Claims

Marriages have changed and so has divorce.  A dependent spouse need no longer prove fault in order to receive alimony.  Fault is no longer required for an absolute divorce.  The law applies the best interests of the child test rather than the tender years doctrine.  The law focuses more on finances and less on who is right and who is wrong.  The examples of modernization in family law are nearly endless.  North Carolina family law is no exception-except in one major area.

North Carolina is one of a handful of states that still recognizes alienation of affection and criminal conversation. 

In a nutshell, alienation of affection takes place when a third party engages in conduct that he or she should know would impact an intact marriage negatively and in fact "alienates" one spouse's love and affection from the other.  A simple example is having an affair with someone's spouse.  If it is a sexual affair, criminal conversation has also taken place.  "Criminal conversation" is a broader tort claim: it happens when someone has sexual intercourse with another's spouse, knowingly or not.  There is no intent requirement.

In 2009 the state legislature modified but never seriously considered abolishing these claims.  It did not seriously curtail these cases; it primarily clarified that plaintiffs could only bring cases against individuals and not employers.  This perhaps disappointed critics of these causes of action who regard them as antiquated regulations of private moral behavior.  Some argue that adultery is usually a symptom rather than a disease.  On some level, I agree with that; people in happy marriages generally do not have affairs.  Many argue that criminal conversation suits are brought out of anger-and litigants bring them simply because they can.

The rarity of true alienation of affection establishes the value of keeping it as a cause of action.  If a person takes action that breaks up a truly intact marriage, then it truly is egregious and people are harmed.  In fact, they are devastated.  Just as with a car accident victim, courts of law should remain open and provide a way for people to be made whole.  Similarly, if it's not devastating because the marriage was not that great, damages will be lower.  Furthermore, if there was no love left in the marriage, there was no alienation of affection.  Economics drives attorneys who generally keep the less serious cases out of court because they are not valuable.

Criminal conversation is a strict liability tort and is subject to the criticisms that all strict liability torts face-namely that there is no intent requirement and intentional acts are what should be punished so that they may be more effectively deterred (This begs the question that maybe there should be some deterrent to people having with sex with a person not knowing his or her marital status).  Again, this aspect is controlled by damages.  Less culpable people are less likely to be hit with punitive damages.  Economics takes over and lawyers will not bring cases that aren't worth more (because the behavior is less morally objectionable).  I suspect this may be why most criminal conversation claims are brought along with an alienation of affection claim and its requisite intent element. 

Alienation of affection and criminal conversation remain means by which morality maintains a role in divorce law as financial concerns have come to dominate the field.  Ironically, financial concerns constrain minor cases brought in the name of moral outrage while these claims provide for the genuine recourse to those seriously harmed by immoral behavior.

Personally, I'm glad that North Carolina has kept these torts.  I know many disagree.

Collaborative Divorce? Don't Hold Your Breath.

In recent years, the idea of collaborative divorce has become more popular. The idea of working out all of the details related to child custody, alimony, and property division out of court does seem attractive. It's almost too good to be true. It's proponents claim it is a great alternative to the drawn out, painful, and costly divorces.  It keeps the lawyers at bay because they agree to withdraw from representation if their clients cannot come to an agreement.

Supporters of collaborative divorce, however, seems to forget that people get divorced for a reason.  In order to collaborate, people usually need to agree-meaning that that they still get along on some level.  In many cases, one spouse has superior resources at his or her disposal and therefore may be able to dominate the process through the threat of litigation (which the other spouse can no longer afford).  Some spouses are emotionally dominant and will use the process, unchecked by the fairness that a judge will give to the situation, in order to get what they want.

Collaborative divorce doesn't save money, either.  Proponents claim that filing fees are waived.  In the end, only a court of law can grant a divorce and someone still has to file a lawsuit with the requisite $167 filing fee (in North Carolina).  The spouses are still paying their attorneys as they would in the traditional divorce case.  If the process fails, they will have to retain new lawyers to litigate the matter.  Again, at this point the dependent spouse may be out of resources to hire a new lawyer.  This could be an incentive for the spouse in better financial position to go through the collaborative process in order to exhaust his or her opponent's resources (this, of course, would be unethical of his or her lawyer).

Collaborative divorce lawyers argue that they give their clients advantages by "not putting their lives in the hands of a judge."  Clients in the traditional divorce case don't necessarily give up control to judges, either.  Their attorneys still try to work things out and often do.  It's only up to a judge if you go to trial-and most cases do not go to trial.  Today's family courts refer cases to mediation and traditional lawyers use a variety of means of alternative dispute resolution.  So the assumption that going to a traditional divorce lawyer equates to giving up control to a judge does not hold water.

Traditional divorce already has many of the supposed benefits of collaborative divorce.  Attorneys do talk to each other, do realize that it is better for their clients (and their children) to work things out, and really do try to reach agreements for their clients.  The only thing that collaborative divorce adds is that the attorneys will withdraw if no agreement is reached.  And when that happens, clients have to go through the additional expense of hiring new lawyers and paying them for work that their previous lawyers already did.

To this author, this approach assumes that divorce attorneys try to avoid settling cases so that they can pad billable hours through litigation.  I don't subscribe to this cynical approach.  My experience is that most attorneys represent their clients interests zealously and honestly.  Sometimes this includes going to trial; these cases would have to go to trial even had they begun in the collaborative process. 

The only difference is that their clients had to hire two attorneys.

Social Networking and Cross Examination

The last decade saw the explosion of social networking sites. First it was MySpace, then Facebook, and in 2009 Twitter took the world by storm. Many attorneys have grabbed onto these sites as a means to help bring clients in the door. Their use, however, should continue once you are working on your client's case.

Sometimes your client may tell you what his or her ex put on Facebook, but more often than not you will have to go find it yourself. And you will be amazed with the information that many people still put out there despite the various privacy features available to them. For example, in a child support case a deadbeat father was pleading poverty until I cross-examined him with a print out of his Facebook page where he brags about buying a brand new car with cash. Another adverse party put recent pictures of himself on MySpace holding an assault rifle even though he was under a Domestic Violence Protective Order.

These are just a couple of examples of valuable information you can find about people that they simply broadcast to the world, but your clients may not think to tell you about. Similarly, your clients may not think to tell you about the things they have put on the web. I always ask, then look. I tell my clients that I prefer to hear it from them than on cross examination. The thing is, I have had clients who have put some obscene things on social networking sites and I have not yet been confronted with it in a courtroom. This tells me that most attorneys are not researching my clients online like I am theirs.

Of course, you must always be ethical-if your opposing party has an attorney you cannot "friend" them or send them a message through these social networking sites. But anything they put out there for public consumption is fair game and I've got several copies of it when I go to court.

So look up your clients online. Sometimes you will find a goldmine of information to use in cross-examination. It will help your case-and it can also make trials fun again!

Frigid New Year, Frigid Marriages

The New Year in eastern North Carolina has been uncharacteristically frozen. This time of year tends to break the ice on frozen marriages. Whether it's anger over a contentious Christmas, someone drank too much on New Year's Eve, or people who have been putting off separation, January is the big break-up time.

2010 promises to be a particularly big year for divorcing couples. The economy is showing a few signs of recovery. This will add couples who have been putting off separation due to financial restraints. But if you're going to separate, are you ready? Ask yourself these questions:

1. Have you gotten a separate mailbox?
2. Have you opened a separate bank account?
3. Assuming you have opened said account, have you notified your HR department to update your direct deposit information?
4. Do you have a plan for your children?
5. Have you got another place to live?
6. What if you and your soon-to-be ex can't agree on things?

Also, be wary of your soon-to-be ex leaving you now, particularly if he or she is better off financially. I foresee wealthier spouses choosing to separate before the economy recovers much as it will soften the blow to their individual bottom lines. This is because they can anticipate splitting a smaller pie and then take their share into the recovery and grow it for themselves. This may seem beneficial to wealthier spouses than waiting for the economy to recover and dividing up the larger marital estate.

Of course, if you are the spouse not making as much, you may want to wait things out a bit until the economy improves and your 401(k) balances along with it.

The point is, in divorce timing is half the battle and January seems to be a popular time. Is it time to call a divorce lawyer?