1040 Tax Form with Refund Check and Cash.

Divorcing couples may face a number of questions at tax time.  Prior posts on this blog have highlighted some issues that are worth mentioning again:

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leslie_SpoltoreLeslie 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.

Syd with tennis ballAlaska recently enacted legislation authorizing judges to consider the well-being of animals and to allow judges to assign joint custody of pets. The Providence Journal has reported that Rhode Island is now considering similar legislation. Representative Charlene Lima recently introduced a bill that would require judges to consider the best interests of pets when deciding who gets custody of them in a divorce.

The First State is generally pet friendly. In fact, the Animal League Defense Fund ranked Delaware 15th in the nation for animal protection in 2016. However, as noted in my prior post, pets are considered to be personal property in a divorce here. We will have to wait to see if Delaware will follow the lead of Alaska and Rhode Island to change the status of our pets.  Stay tuned!

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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.

Parent-childJohn F. Kennedy said “children are the world’s most valuable resource and its best hope for the future.”  He was right.  In Delaware, volunteer attorneys or volunteer advocates have the privilege of representing our most valuable resource in Family Court proceedings through the Office of the Child Advocate and the Court Appointed Special Advocate Program.  Senate Bill 188, which was passed by the General Assembly, will bring both programs under one office.   Specifically,

This bill transfers the Court Appointed Special Advocate Program to the Office of the Child Advocate creating one office in this State that provides legal representation to children. The bill updates the law to reflect the practices of the Office of the Child Advocate, including ensuring that the child is the party to the proceeding once legal counsel is appointed, that every child is provided legal representation, that the wishes of the child are a significant factor in the legal representation, and that the child’s rights are explained to him or her. Finally, this bill allows the Office of the Child Advocate to assist other Courts of this State in the rare instances where they need legal representation of a child, and will enable OCA to begin to establish volunteer attorney pools to assist in other areas of the law regarding children.

The Bill becomes effective on March 5, 2017.

The Court of Common Pleas has postponed the move of its E-Filing services.  That Court’s E-Filing services are currently available through the eFlex system but  will soon be provided through the File and Serve Delaware system. The transition, which was scheduled to take place on March 1, 2017, will now take place on April 2, 2017. More information on training and access to the system can be found here.

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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.

30807004-alimony-word-in-white-3d-letters-on-a-ball-or-sphere-of-money-to-illustrate-financial-spousal-suppor[1]The recent decision in the case captioned R.S. v. W.E., Del Fam. Ct., No. CN10-05981, Kerr, J. (Jan. 4, 2017), warns Family Court litigants that failure to comply with discovery can have consequences. In this case, R.S. (“Wife”) was seeking (among other things) alimony. Leading up to the hearing date her ex-husband, W.E. (“Husband”) issued discovery asking for the production of documents. Husband asked for documents related to her income. In addition, he asked for an updated list of her expenses and “[a]ll documents supporting each and every monthly current expenses you wish to have the Court consider in calculating alimony….” Id. at 1. Despite the issuance of an Order on June 10, 2016 compelling the production of documents, Wife failed to produce the documents regarding her expenses. With regard to her income, she produced only a profit and loss statement from her accountant with no supporting documentation.

When the parties appeared for the ancillary hearing on January 4, 2017, Husband made a motion in limine to preclude Wife from presenting evidence relating to her income or her monthly expenses. The Court granted Husband’s motion stating:

Pursuant to 13 DEL. C. § 1512, the Court may award alimony to a dependent party. While the court can alleviate the prejudice to Husband in Wife’s failure to provide supporting documentation for her profit and loss statement by either attributing Wife with her gross receipts or attributing Wife with income from the Wage and Labor Survey, the same cannot be done for her expenses. Husband is severely prejudiced by Wife’s failure to provide documentation pursuant to the Requests on her expenses. Husband would have been able to prepare for questions regarding her expenses had the documents been provided. Wife did not even provide a bare list of expenses to Husband’s counsel or to the Court in the pretrial. If there were a lesser sanction which would address Wife’s failure without prejudice the Court would enter the lesser sanction. However, there is no lesser sanction.

Thus, the Court cannot permit Wife to testify as to her expenses. Without evidence as to Wife’s monthly expenses, dependency cannot be established as Wife’s reasonable needs cannot be determined. Wife was informed by the Court at the pretrial conference that she needed to provide the opposing party with certain documentation. In addition, two Motions to Compel were filed against Wife during a time when Wife was represented by Counsel. Therefore, the Court finds that Wife was aware that she needed to produce documentation relating to her income and expenses but failed to do so. Id. at 3 – 4.

Since the Court was unable to determine Wife’s reasonable needs, alimony was set at $0 per month.

The entire Letter Decision and Order may be found 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.

There is no dispute; going through a divorce can be difficult. For some, coming home to a wagging tail is just what the doctor ordered on those stressful days.

What happens to your pet in a divorce? As a prior post explained, pets are considered personal property in Delaware. If the owners cannot agree on what to do, the court can award the family pet to one party or the other.

Syd puppyRecognizing that pets are more like family members than furniture for many, Alaska is taking a different approach. Alaska has amended its divorce statutes to consider the well-being of animals and to allow judges to assign joint custody of pets. It also allows the court to include pets in domestic violence protective orders. Pet lovers and advocates are thrilled with this development. We will have to wait and see if other states follow suit.

 

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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 Court of Common Pleas has announced a change to the Delaware State Court’s E-Filing system. The Court of Common Pleas will be moving its E-Filing services from its current eFlex system to the File and Serve Delaware system on March 1, 2017. The announcement, which contains information on training and support, may found here.

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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.

As 2017 draws near many people start to consider their 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 recently authored an interesting post entitled “The New Year’s Resolution Divorce.”  The topic, 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.

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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.

AppealThe appeal in the case of Jones v. Jones focuses on alimony and the question of whether certain expenses are reasonable. In this particular case, the conduct of the alimony obligor was a significant consideration.

Mr. Jones (“Husband”) was dissatisfied with the Family Court Order awarding his former wife, Ms. Jones (“Wife”), alimony. Seeking relief, he filed an appeal. The Supreme Court rejected most of his arguments but explored one related to medical expenses. Specifically, the Court remand the case back to the Family Court so that the Family Court could explain how it concluded that Wife’s out of pocket medical expenses of $300 per month and her monthly health insurance expense of $715 were reasonable.

On remand, the Family Court conducted a hearing to expand the record. At that hearing, Wife testified that the cost of COBRA insurance through Husband’s employer was $715 per month. Wife also testified that due to Husband’s failure to pay alimony as ordered she was unable to pay for the COBRA insurance. As a result, Wife was receiving medical benefits through Medicaid. She also testified to out of pocket medical expenses of $143.57 per month. Husband did not dispute that he failed to pay alimony. Based on this record, the Family Court held that Husband should not be able to benefit from his refusal to pay alimony and found the $715 monthly expense for medical insurance to be a reasonable expense even though Wife was receiving benefits through Medicaid. The Court also found $143.57 per month for out of pocket medical expenses to be reasonable.

The Supreme Court agreed with the Family Court’s conclusion that Husband should not benefit from his refusal to pay alimony.  The Court affirmed the finding that Wife’s medical expense of $715 per month and her out of pocket medical expenses of $143.57 per month are reasonable.

The Supreme Court Order 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.

Family Court SealFamily Court recently announced amendments to Rules 5, 72, and 302 of the Family Court Rules of Civil Procedure. The amendments, which become effective January 9, 2017, may be read in their entirety here. The Court described the amendments as follows:

Rule 5 governing the service of process and filing of pleadings in Family Court has been amended to reflect a change in the law regarding the certified mail requirement for retroactive modification of child support obligations. The prior law allowed for a modification of a child support obligation to be retroactive only to the date the modification petition had been delivered to the responding party by certified mail. Otherwise, any modification could only be effective the date of the hearing or mediation conference. The new statute eliminates the certified mail requirement and allows modification back to the regular mailing date (plus 3 days) to the responding party. Rule 5 is being changed to remove reference to certified mail as a prerequisite to retroactivity.

Rule 72 governing administrative appeals from the child support agency has been amended to recognize the change in name of the Division of Child Support Enforcement (DCSE) to the Division of Child Support Services (DCSS).

Rule 302 governing income attachments for child support obligations has been amended to reflect a change in the law in those cases where there is a past due child support balance and no payment has been received for at least one month. The previous law allowed DCSS to impose a payment on past due support of 10% of the current support, or at least $5, if a person had not made a payment for 90 days. The new law increased the allowable payment to 20% of the current support, or at least $20, if a person has not made a payment within one calendar month. The change from 90 days to one calendar month reflects the change in child support accounting practices over the years from weekly to monthly, and a desire for a more aggressive remedy that can be imposed without requiring the parties to appear in court.

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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.