ISSUES REGARDING CHILDREN
Domestic Relations
Custody of Children and Visitation
What is a Dissolution of Marriage Marital vs. Non-Marital Property Issues Regarding Children Maintenance or Alimony Attorney's Fees Procedures and Time Frame Settlement of a Case If the custody of your child(ren) is not in issue, only the issue of visitation needs to be addressed. If you anticipate that child visitation may become a problem, I recommend that visitation be set for specific times, that is, taking place on specific days and during specific hours. On the other hand, if you anticipate you and your spouse can work out the problem of visitation, I suggest that your agreement merely provide that visitation should be "reasonable". Such a provision is desirable because it is not rigid. If you and your spouse cannot agree as to who will have custody of the child(ren), then the custody proceedings are contested and will be decided by the judge. In making a custody determination, the court focuses on the best interest of the child(ren). Since the court does not have a crystal ball to aid it in determining which parent will make the better custodian, the court generally makes its custody decision on the basis of which parent, in fact, has been the primary caretaker of the child and who has been more emotionally supportive of the child. Child custody proceedings are extremely expensive. In fact, most couples simply cannot afford contested litigation. For this reason, if there is a potential child custody dispute, I generally recommend that the problem be resolved by a trained professional mediator. Some counties in Illinois in which we practice actually require that the parties go to a court appointed mediator before they can proceed to have the matter resolved in a judicial hearing or trial. This office has had very good luck in resolving custody disputes through mediation. The resolution of custody and visitation disputes by mediation is also substantially cheaper than a contested trial. Child Support The law provides that the amount of child support shall be determined by the needs of the children and the ability of the non-custodial parent to pay support. In the usual case, however, if the non-custodial parent were to pay a sufficient amount to actually meet all of the needs of the children, there would be no money left for the noncustodial parent to meet his/her own needs. For this reason, the courts usually try to reach a compromise figure intended to meet the needs of the children, but also leaving the noncustodial parent sufficient funds to meet his/her own needs. The law currently achieves this goal by prescribing a minimum amount of child support per child based upon percentage of income guidelines. Medical/Hospital Expenses and Life Insurance The court, in addition to imposing an obligation for child support, normally imposes an obligation on both parents to meet the medical, hospital, and dental expenses of the children. The best way to meet this obligation is through health insurance. In most divorce cases, the noncustodial parent carries health insurance for the benefit of the children. All expenses not covered by the insurance are usually shared in some manner by both parents. Because the noncustodial parent has an obligation for child support, ideally that parent should have sufficient insurance on his or her life, so that if he or she dies while still obligated for child support, this obligation is met through life insurance coverage. College Education of Children Generally, child support is paid only during the period that the child(ren) are minors. A child no longer is a minor upon the child's eighteenth birthday. The law provides, however, that divorced parents may have a continuing financial obligation for the college education of their nonminor children. This, of course, presumes that the child has the desire and intellectual ability to receive a college education. The costs of a post-high school education vary greatly. The costs for a student for one year at a community college may be only several hundred dollars, but the cost for one year at a private school may be in five figures. The yardstick for measuring your obligation to pay your child's college expenses is the type of school that you would have chosen to send your child to if you had not become divorced, but also considering your ability to pay following the divorce. Next, if your financial circumstances were such that if there had not been a divorce the non-custodial parent would have paid the entire educational costs for the child, that should be his obligation after the parents divorce. If college education would have required a financial contribution by both parents, that should be their obligation after a divorce. If you and your spouse do not come to an agreement on the subject of college education at this time, not a great deal is lost. You may come to an agreement before a child enters college or either parent may petition the court, and the court will determine each parent's obligation to pay for a child's college education expenses. Income Tax Consequences Currently, in your last joint tax returns, you have been claiming your children as dependent exemptions for tax purposes. However, after the divorce, you and your spouse will be filing separate tax returns. Therefore, you both should come to an agreement as to who will claim the children as exemptions. Under the Internal Revenue Code, the custodian of the children is entitled to take them as dependent exemptions, unless the custodian agrees that the noncustodial parent may take the children as exemptions and agrees to sign an Internal Revenue form so stating. Child support is not taxable to the recipient, and it is not an income tax deduction for the parent making the payments. Maintenance (alimony), on the other hand, is taxable to the recipient, and all of the maintenance payments may be deducted by the payor. While the above is a correct general statement of income tax law, the Internal Revenue Code has complex provisions relating to the taxability and deductibility of maintenance, and therefore we will give you specific advice if and when necessary. Tips for Divorcing Parents with Minor Children Divorce is never easy on children, but there are many ways parents can help lessen the impact of their break-up on their children:
© 2007 Joseph M. Lucas & Associates, L.L.C. |
|