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Delaware Trial Practice Blog

Stay Up To Date On Delaware State Court Matters

FAFSA, Financial Aid And Residential Placement

Posted in Family Law

For divorced or separated parents the consideration of where a child primarily resides can be an important issue at tax time.  That, however, is not the only time that residential placement can have a financial impact.  Consider the issue of student aid and student loans.

Different loan programs examine residential placement to determine which parent’s financial information should be reported.  Some financial aid programs require both parents to provide financial information.  Others do not.  For example, many students apply for aid through the Free Application for Federal Student Aid (FAFSA) program.  Pursuant to FASFA, the financial aid form should include information on the parent with whom the child resided the most over the last year.  If the child resided equally with both parents, it requires the financial information from the parent who provided the most financial support over the past year.

Whatever the reporting requirements are, it makes sense for parents to work together to maximize the chances to getting aid.  Find out early what forms need to be filled out, by whom and with what information.  If there is a residency requirement, figure out what it is and whether it works for your family.  Working collaboratively could make the difference in whether your child is eligible for finical aid programs or not.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Administrative Directive 2016-1

Posted in Uncategorized

Superior Court Administrative Directive 2016-1, provides the Court’s civil and criminal judicial assignments for 2016 (a copy of Administrative Directive 2016-1 can be found here).  This information is important for litigants assessing when their case might be scheduled for trial–criminal matters will receive scheduling preference over  a Judge’s civil docket.  In addition, the Directive establishes the administrative judges for each county as follows:

New Castle County

Civil Administrative Judge – Judge Davis

Criminal Administrative Judge – Judge Carpenter

Asbestos Docket – Judge Medinilla and Judge Scott

Kent County

Civil Administrative Judge – Judge Young

Criminal Administrative Judge – Judge Clark

Sussex County

Civil Administrative Judge – Judge Stokes

Criminal Administrative Judge – Judge Bradley

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

 

The Dependency Exemption In Divorce

Posted in Family Law, Uncategorized

Tax TimeIn a prior blog post I discussed the Delaware Family Court decision issued in the case of L.S. v. L.R.S., 2007 WL 4793935 (Del. Fam. Ct. Jan. 17, 2007), which held that the right to claim the Federal Tax Dependency Exemption (“exemption”) available through Internal Revenue Code Section 152(e) is an asset that can be allocated in the context of a property division proceeding.  While the decision in L.S. v. L.R.S. determined that the exemption is a divisible asset, it did not set forth in detail the factors the Court should consider when determining how to allocate the exemption.  A later case, S. v. S., 2012 WL 1560401 (Del. Fam. Ct. Mar. 26, 2012), provided further guidance in the form of a list of seven (7) factors for consideration.  That list of factors may be found here.  Since my last post, another decision has issued from the Family Court and since it is tax season, it seems an appropriate time to revisit the exemption issue.

In the case of E.K. v. M.K., 2013 WL 8290634 (Del. Fam. Ct. Mar. 8, 2013), Husband wanted the Court to allocate the exemption for the parties’ two children. Wife, who had primary residential placement of the children, wanted the Court to refrain from allocating the exemption.  Finding in favor of Husband, the Family Court referenced the holding in S. v. S. and conducted its analysis as follows:

To bolster her position that the Court should not divide the dependency exemptions, [counsel for Wife] argues that the Court should rely on S. v. S, where the Court refrained from allocating the dependency exemption based on ‘the facts unique to this case, including the young age of the children, the unsettled custody of the children, and the nearly equal incomes of the parties.’ While the parties’ incomes are not equal in this case, [counsel for Wife] contends that there are too many variables to justify awarding Husband a tax benefit, and that allocating the exemption ‘in the face of a potentially fluid situation would render an inequitable result.’ Rather, [counsel for Wife] requests that the Court defer to the federal and state default provisions.

The Court is not persuaded that potential fluidity of custodial arrangements and respective incomes should lead the Court to refrain from allocating the exemptions in a manner that would produce tangible benefits for both parties. In dividing marital property, the Court considers statutory factors at the time the property division is to become effective. Many of the factors, such as the health, station, and sources of income, the opportunity to acquire future assets and income, the value of the property set aside to each party, and the parties’ economic circumstances, can change over time. In addition, the statute requires the Court to consider the parties’ economic circumstances ‘at the time the division of property is to become effective [emphasis added].’ All of these considerations are fluid, but the Court will not reopen a property division because one of the statutory factors has changed. In addition, in evaluating the parties’ prospects to acquire future income, the Court necessarily has to forecast parties’ future prospects to acquire assets and income. When evaluating this statutory factor, it is possible that the party whom the Court believes has a lesser prospect to acquire future assets and income may in fact acquire more assets and income in the future.

Given that the Court will allocate the exemption, it will award the exemptions in a way that is most beneficial for both parties. Allocating the exemption in a way that maximizes the net income to the parties is consistent with the purpose of the Delaware divorce code of mitigating the potential harm to spouses and children. Moreover, other jurisdictions allocate the exemption in this manner. For example, the New Jersey Superior Court has held that ‘a court may properly seek to maximize the net income of the parties in the allocation of tax deductions.’ As a New Mexico Court has noted, ‘allocating a dependency exemption to one parent or the other may, as a practical matter, liberate additional funds with which that parent can contribute more to the support and maintenance of the children.’ Often times, allocating the exemption to the non-custodial, economically stronger spouse will produce more tax savings than allocating the exemption to the custodial parent. By doing this, the Court can use the exemption to serve a constructive purpose of helping the parents provide for children of a divorce. (citations omitted)  Id. at 18-19.

 

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Divorce And Taxes – Did You Change Your Name?

Posted in Family Law

There are lots of changes during a divorce.  For many, one change comes in resuming a maiden or former name.  While the change may be comforting for some reasons, it can create issues if not done properly.  For example, if the name on the top of your tax return does not match the name on file with Social Security Administration there could be problems with processing your return.  The IRS advises that if you recently divorced and changed back to a maiden or former name you need to notify the SSA of this name change.  For more information on this process and access to the necessary forms please visit the SSA’s website.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

A Release Of Liability May Bar A Negligence Claim

Posted in Delaware Supreme Court

Appeal

 

The Delaware Supreme Court was recently asked to examine a release of liability.  Ketler v. PFPA, LLC, d/b/a Planet Fitness, No. 319, 2015 (Jan. 15, 2016). Plaintiff, DeShaun Ketler (“Ketler”), filed an action in the Superior Court claiming that he was injured while using exercise equipment at a Planet Fitness facility.  Planet Fitness argued to the trial court that Ketler’s claim was barred based on a release executed by Ketler that provided,

I understand and expressly agree that my use of this Planet Fitness facility . . . involves the risk of injury to me or my guest whether caused by me or not. I understand that these risks can range from minor injuries to major injuries including death. Inconsideration of my participation in the activities and use of the facilities offered by Planet Fitness, I understand and voluntarily accept this risk and agree that Planet Fitness . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury. . . resulting from the negligence of Planet Fitness or anyone on Planet Fitness’ behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge Planet Fitness from any and all claims, demands, injuries, damages, actions or causes of action. I further understand and acknowledge that Planet Fitness does not man, and therefore Planet Fitness may not be held liable for defective products.  Id. at 1.

A release that allows a party to avoid liability for its own negligence is permissible in Delaware if it is unambiguous, not unconscionable and not against public policy.  Justice Vaughn authored the opinion of the Supreme Court affirming the trial court’s decision that this release satisfies these criteria and was sufficient to bar Ketler’s claim. The decision may be read in its entirety here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

Podcast – Alternative Dispute Resolution: A Cost-Effective Solution

Posted in Alternate Dispute Resolution, Family Law

Litigation has unfortunately become a routine part of life – both corporate and personal – in today’s society. However, a trend has emerged to resolve litigious, often complex and highly charged legal disputes without going to court.

Known as alternative dispute resolution (ADR), this process has advantages for corporate, family law and other types of matters.

We invite you to listen to this podcast in which Fox Partners Vincent J. Poppiti and Leslie B. Spoltore (a Delaware Trial Practice blog author) discuss the many benefits of ADR.

You can also download the transcript if you prefer. We hope that you find it to be a valuable discussion.

Legislature To Consider Bill Relating To Public Access To Family Court Proceedings

Posted in Delaware Family Court, Legislation

A prior post addressed Senate Concurrent Resolution No. 9, entitled “A Resolution To Create A Blue Ribbon Task Force To Review Open Family Court Proceedings”, and Senate Bill 119. Under the terms of Senate Bill 119 Family Court proceedings regarding paternity, divorce, property division and alimony would be presumed to be public.  The Family Court would retain the discretion to hold the proceedings in private in certain circumstances.  Adoption, custody, visitation, third party visitation, Child Protection Registry and child welfare hearings would remain private, but the Family Court could open those hearings to the public in certain circumstances.  The Bill continues its path through the legislative process and is scheduled to be considered by the House Judiciary Committee today.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

The Year In Review

Posted in Uncategorized

As 2015 draws to a close, let’s take a look back at some of the most viewed posts.

Listen Up: Delaware Superior Court Overrules Hearsay Objection Where Out-of-court Statement Was Being Offered to Prove its Effect on the Listener

The Importance of Being A Good Trial Witness

Consider International Custody Issues Sooner Rather Than Later

Superior Court Issues Administrative Directive Regarding Case Caption Designations

Reducing Stress During Divorce Litigation

Delaware Enacts A Bill Of Rights For Dependent, Neglected And Abused Children

Judge Michael K. Newell Confirmed As The New Chief Judge Of The Family Court

The Kurt Busch Case Places a Spotlight on Petitions for Orders of Protection from Abuse

For Better or Worse – Lawsuit in Mississippi Brings Attention to the Claim of Alienation of Affection

Expert reports cannot be based merely on “common sense”; that’s common sense!

 

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Is Filing For Divorce Your New Year’s Resolution?

Posted in Divorce, Family Law

As 2016 begins many people start the year with resolutions, promises to themselves, of things they want to accomplish in the next 12 months.  Eric Solotoff, a Partner in our Roseland, New Jersey office previously authored an interesting post entitled “The New Year’s Resolution Divorce.”  The post, which seems to resonate with readers, examines the phenomenon of spouses who add filing for divorce to their “to do” list for the new year. Filing for divorce and getting through that process can be difficult.  If filing for divorce is on your list you may want to consider some related resolutions, as suggested by Jennifer Weisberg Millner, a Partner in our Princeton, New Jersey office in her prior post entitled “New Years Resolutions: How to Be a Good Divorce Client.”  You may also want to consider options and suggestions to reduce the stress of this process as suggested in my prior post, “Reducing Stress During Divorce Litigation.”

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

International Custody Disputes In The News Again

Posted in Custody, Family Law

The topic of international custody disputes has garnered significant media attention in recent months.  Most recently, Madonna and Guy Ritchie have added fuel to the media fire on this issue.  According to an article in New York Post Rocco, their 15-year-old son, recently refused to board a plane and return to New York.  The dispute landed the parties in a New York court yesterday where Guy Ritchie argued that Rocco wants to live in London with his father.  Though it appears there is no final resolution, a New York court has ordered that Rocco return to New York for now.  According to the report “The Manhattan judge said Rocco would also have a court-appointed attorney in the New York custody case, where the teen could tell the judge whether he wants to live with mom or dad.  But first he must come to New York and face his mom, the judge said.”

As noted in past posts, international custody disputes can be lengthy, complex and expensive.  In our increasingly mobile society it is important to consider these complexities when entering into relationships that may result in international litigation.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.