Mark Ashton

Subscribe to Mark Ashton's Posts

Just before Christmas last year, Congress passed and the President signed a major tax reform package that contained a surprising wrinkle.  It abandoned a decades long provision that permitted payors of alimony or spousal support to deduct their payments from income and required recipients to report the payments and pay tax on them.

The effective date of this change was/is December 31, 2018.  Orders and Agreements in effect on that date maintain the old tax treatment.  Still taxable to payee.  Still deductible by payor.  But Orders and Agreements formed in 2019 will be tax neutral unless the deal is a modification of a pre-2019 instrument (i.e. Agreement or Order), and it expressly retains the former tax treatment.  To address this, Pennsylvania support guidelines needed to adopt amendments to deal with two systems: one where the payments are taxable and one where they are not.

When the Pennsylvania Supreme Court Rules Committee began their review, they observed that every other state approaches child and spousal awards differently.  In Pennsylvania we have always calculated child support first and then used that result to calculate spousal and alimony awards.  The Rules Committee is recommending that we adopt a different approach.  Under proposed rules currently out for comment, we will solve first the issue of spousal support/alimony and then plug the results into a child support calculation.  If there is an Order in effect before December 31, 2018 the calculation does not change.  If the obligor makes $5,000 a month net and the obligee $2,000, you subtract the lesser number from the greater and start with the $3,000 result.  If there will be child support due, the spousal award is 30% of the difference or $900.  If no child support is involved the percentage remains 40 and the result is $1,200.  Both payments will remain taxable and deductible.

But, if the case involves a new Order or the parties should decide they want an Order to be reflective of the Trump tax reforms, the calculation becomes a little more complex.  Here we go; dealing first with a case where child support is not involved:

Obligors net monthly income $5,000
Less payments due to other families  
Adjusted net income available for support $5,000
x .33 $1,650 (this is new)
Obligee’s net monthly income $2,000
x .40 $800 (also new)
Subtract the $800 from the $1,650 and nontaxable support will be $850.  This contrasts with $1,200 taxable/deductible under the ancien regime.

Now, on to a case with the same incomes but a child support element:

Obligors net monthly income $5,000
Less payments due to other families  
Adjusted net income available for support $5,000
x .25 $1250 (this is new and a lower % than above)
Obligee’s net monthly income $2,000
x .30 $600 (also new, also lower % than above)
Subtract the $600 from the $1,250 and you get spousal support or alimony of $650.

These results will now become part of the child support calculation. The spousal award will be subtracted from obligor’s income and added to obligee’s.

  OBLIGOR OBLIGEE
Net incomes available for support 5,000 2,000
Spousal support/apl adjustment (650) +650
Adjusted income available 4,350 2,650
Combined income for support $7,000    
Relative percentages 62% 38%
Guideline amount 2 children 1,660    
Support 1,029 631
If the obligor has 45% of overnights the support is adjusted with a 15 basis point discount to 47%.
Then we allocate health insurance, private education, and activities (w/o discount)            62% Obligor and 38% Obligee.

These are recommendations to the Supreme Court and they are not yet law.  But, given the fact that the federal tax law will change in less than ninety (90) days and something must be done in that period, don’t be surprised to see the proposed regulations adopted at least as a temporary matter.

 

Two years ago the Pennsylvania Supreme Court weighed in on the matter of how third party standing was consistent with the fundamental right of parents to raise their children. That case moved the ball in a new direction as we had seen a trend favoring third party involvement in child custody litigation where “interest” was shown. On September 21, the Supreme Court issued a decision underscoring the definition of a parent and further articulating who can qualify as in loco parentis.

C.G. was in a same sex relationship with J.H. in Florida when J.H. decided to have a child using intrauterine insemination via anonymous male. The child was born in Florida in 2006. In 2012 J.H. took the child and established a separate residence first in Florida and a few months later in Pennsylvania.

Four years later, C.G. filed an action in Pennsylvania seeking partial custody. This was met with preliminary objections asserting lack of standing. The adult couple never formalized their relationship and no adoption had been begun even though Florida legalized same sex adoption in 2010.

The evidence about the relationship between C.G. and the child born to J.H. was unusual. As one might expect C.G. presented herself and supporting witnesses to promote the idea that she was part of the choice to have the child and a hands-on caregiver from the day delivery. But, once the adult relationship cooled, contact between C.G. and the child was once per week. After J.H. moved with the child to Pennsylvania C.G. saw the child only once in March, 2014 and didn’t phone her too often. C.G.’s financial contributions to the child seemed to be limited to occasional gifts and some camp tuition. C.G. did name the child as a beneficiary of an insurance policy on her life.

The opinion of Justice Sallie Mundy notes that the resolution of the preliminary objections involved testimony from sixteen witnesses and exhibits ranging from school parent forms to thank you notes following J.H.’s baby shower. This evidence was heavy in hope and expectation and remarkably light in terms of actual goods and services associated with parenting. Nonetheless, C.G. asserted that she was a parent under Section 5324(1) or “at the very least” a person in loco parentis. 23 Pa.C.S. 5324(2).

The Trial Court ruled that C.G. lacked standing. The disputed testimony aside, the Court noted no reference to C.G. on the birth certificate; no reference to C.G. in the child’s name and no action to begin a second parent adoption once Florida permitted such proceedings. The life insurance policy and the presence of the child on C.G.’s health insurance until the J.H. relationship ended was all of the documentary evidence the Court could find, and it credited J.H.’s testimony that she was responsible for almost every child-related decision concerning things like medical care, day care and other needs. C.G. did pay her share of household expenses while the two resided together but that appears to have been the extent of contribution aside from health coverage. The court stayed away from “bonding” issues noting that standing is an objective standard where bonding is not. See K.C. v. L.A. 128 A.3d 774,779 (Pa. 2015).

The Superior Court affirmed based on the absence that C.G. showed no law was advanced establishing that a non-biological, non-adoptive former partner can be a parent. C.G. v. J.H. 172 A.3d 43, 51-52 (2017). As for the in loco parentis claim the Superior Court deferred to the trial court findings of fact.

Justice Mundy’s opinion properly begins with the requirement of standing in all cases; “a substantial, direct and immediate interest” in the subject matter. It also noted that in custody matters, the goal is to protect families from intrusions by even well-meaning strangers.

C.G. advanced what is called an “intent based” approach to the role of parent. This Court notes that law does not yet define who is a parent but that the accepted definition is a status conferred by either biology or adoption. It also noted that the recent In re Baby S case also suggests that the status of parent can be expressed or implied by agreement. 128 A.3d 296 (Pa.S. 2015); See also J.F. v. D.B.  897 A.2d  1261 (Pa.Super. 2006). But here, the Plaintiff had none of these requisites. If C.G. was not a party to a parenting agreement or otherwise identified as an intended parent during the conception and birth process, she is not a parent under Pennsylvania law. Pennsylvania does not adopt the Massachusetts approach that allows parentage to be established by professing to be a parent. Interestingly, Justices Wecht, Dougherty and Donohue appear to be more open to this concept although they did not find that C.G. met the “professed parent” standard. The interplay between that view and conduct that is in loco parentis is an interesting topic.

On the claim of standing in loco parentis, the Court noted the twin requirements of “assumption of parental status” and “discharge of parental duties.” C.G. advanced a case, T.B. v. L.R.M. 786 A.2d 916 arising from an agreement to have a child together with one parent choosing the sperm donor and subsequent sharing of all physical responsibilities. The Supremes found T.B. to show a much higher level of involvement with the child than what the trial court observed in this case. It also distinguished C.G.’s claims from those in J.A.L. v. E.P.H. another same sex case with facts similar to T.B. 682 A.2d 1314 (Pa. Super. 1996). In both of those cases there was a documentary trail of medical authorizations, standby guardian documents and the like evincing a desire to raise a child together. This desire was borne out by what occurred in terms of consistent contact after the adult relationship dissolved. The critical issue is what occurs before a separation occurs, but while the Supreme Court notes that post separation conduct should not control a claim to be in loco parentis, that conduct may shed light upon claims of a person to have assumed rights and discharged duties while the relationship was intact. Here the post separation conduct seems reflective of what occurred when C.G. and J. H. were living together but C.G.’s asserted parenting role seemed passive at best.

As I read the analysis in C.G. v. J.H. it became clear that this is an area where we need clear standards, either by statute or rule. The Centre County judge who heard this case listened to 16 witnesses while deciding not a custody placement but “preliminary objections”. One has to wonder why it took C.G. almost four years to assert parental rights. But, she waited almost as long to see whether she was even a real party in interest.

We live in a world where the birth or adoption of every child is documented. When a person claims the role of parent, whether by biology or contract, that person must register such a claim if he or she is not named on the vital statistics form as a condition to assertion of “parentage.” And, shouldn’t someone claiming to be acting in loco parentis be statutorily required to show that their assumptions of duty and discharge of obligations has been continuous and recent as part of a pleading to intervene? We devote lots of ink to the subject of child best interests. Yet, one of those interests should be avoidance of protracted and acrimonious custody litigation. In many instances that cannot be avoided. But, where a child left one state and was relocated to another, only to see the loco parente once in four years, should that child be subjected to the kind of litigation this case involve. He/she was five when C.G. exited from daily existence. That child is now twelve and probably wondering whether custody litigation with a person they can scarcely recall will remain a part of daily life. C.G. v. J.H., 2 M.A.P. 2018 (Sept. 21. 2018)

This was a summer where prenuptials arrived in profusion, and what made it interesting is that just about all of them involved folks who were either beginning or in the middle of their earning careers. Most prenuptials involve couples who already have kids from former marriages and money they want to preserve for those kids. But we also see prenups for young people who have wealth already transmitted from their parents; parents who want that wealth to stay on their child’s side of the column even after a marriage occurs.

When going through this process with young folks or even people who are in their forties, lawyers ask lots of questions that can be uncomfortable. No one ever really asks a couple how they want to live their financial lives together and yet as McKenzie Frankel, a financial planner in Wayne, PA has observed, a lot of relationships would work far better if those questions were addressed. When it comes to how we manage family and money our expectations are often hard baked into our personalities by our own life experiences. Millennials can be especially interesting to work with because many of them are raised to eschew family and money stereotypes (e.g., mothers stay at home and dad’s do the financial stuff).

I read the Money Personality Quiz developed by Frankel and her partner Joslyn Ewart with interest, but I also considered some far more basic questions that young people in love should be asking each other. I also believe that the answers to some of these questions might be worth incorporating into agreements. Permit me to try my hand at my own “personality quiz:”

  • How important is it to your relationship that you have children, with a “0” reflecting no interest in raising a family and “5” indicating that it was indispensable to agreeing to marriage?
  • Indicate the optimum number of children you would want to have with your intended spouse.
  • Indicate the outer limit of the number of children you think you would want to have.
  • If fertility becomes an issue for either of you, would you be prepared to incur the expense and physical challenges which fertility treatments may involve?
  • If fertility is an issue, indicate your receptivity to adoption and whether there are limits to how far you were willing to adjust to the alternative options adoption may require.
  • If you had a child who suffered physical, intellectual or emotional limitations that prevent one of you from being able to work outside the home, how would you decide which of you would make that financial sacrifice and how would that sacrifice be compensated if the marriage were to dissolve?
  • If your child(ren) had no limitations but you decided that one of you did not want to return to work in order to devote energy to full time parenting, how should that be compensated if the marriage were to dissolve? How should you reduce or limit your lifestyle/expenses once the decision is made and the household income is reduced?
  • If you both had jobs earning equal amounts of money and one of you was offered employment that would require relocation to another city, how much more compensation would the spouse offered the job have to receive before you would agree to move, especially if no substitute job was immediately available in the new market.
  • How important is it to you that your child have the benefit of private school when a reasonable public school is available?
  • Do you see it as your responsibility to provide children with either vocational or academic training after they have completed high school? In a day (today) when a four year public school undergrad degree costs $80,000 and a private school $160,000, what should be your contribution and how do you want to finance the parent portion (e.g., savings or when it comes)?
  • In a day when the average social security benefit for a retiree is about $17,000 a year and the maximum benefit, if you contribute the maximum ($8,000 per annum) and defer to age 70, is $44,000 a year, what kind of retirement income do you hope to have and when do you intend to start financing that via savings? Can you agree now that a portion of your earnings go into some form of retirement and that you would continue that percentage?
  • How important is it to you that you own your home rather than rent a dwelling, “0” being of no consequence and “5” being an absolute necessity?
  • If you earned $30,000 per annum what do you consider a reasonable amount for a monthly auto payment excluding any trade in value (i.e., “0” down)? If your income doubled, would your expectations change and by how much?
  • Is there a level of income where you would prefer to devote additional energy to non-income producing endeavors like charitable work, creative work or occupations which sometimes pay lots of money but typically are low on the income ladder (e.g., acting, writing etc.)?
  • Between 1 and 5, rank your future spouse’s financial stability in terms of their approach to money. If your intended could earn $100,000 but would likely spend more than he earned, that’s a low rank. If your spouse would earn $30,000 but be more likely to still have money for savings he/she is more toward a 5.
  • What is your intended spouse’s current credit rating and what does the credit history look like? Shakespeare said it best: Past is prologue. And it’s a delicate subject, but have tax returns for recent years been filed?
  • Hobbies and collectibles are often a tell-tale signs of financial distress. Gambling, sports or clothing addictions and “collections” (whether cars, handbags, guns or memorabilia) can often take even solid wage earners over the edge. The latter expense often masquerades as an “investment.” We have worked with clients who have tried this. Very few profit from their efforts and many owe large sums on what they do own.
  • What’s the child support situation? Don’t be surprised to find out that a prospective mate who otherwise seems an honorable person owes tens of thousands in back support. There can be many explanations for this and some may be more reflective of neglect than malice but it won’t make any difference, when the $10,000 bonus you deposited to the joint bank account for a trip to Orlando is seized to pay his past due support.
  • Criminal background. This can be a painful look but today Pennsylvania has data online about prior criminal history. It does not include juvenile offenses (which occur before age 18), but any adult bad behavior tends to linger. Make certain you are looking at the right name and verify if possible with a birthdate and/or a social security number. You may be planning a driving honeymoon while your future bride is juggling her second DUI arrest.

So there are two stories here. Know the past of the person you love and talk about the future and how to address it. And while you are discussing the future you may want to think about an agreement that protects you with some promises that could be legally enforceable.

When you marry you usually take on obligations of support for each other. The property you acquire (except by gift) is divisible in divorce. The debt is as well. Most people file joint tax returns which means that any monkey business with the return affects both monkeys even though only one monkey was cooking the books. And except for credit card debt, lots of consumer debt including mortgages are “joint and several.” That’s legalese for “you’re on the hook for the mortgage even though you consistently gave him cash to make the payment.” He just had other priorities.

The author has plenty of real life stories to back up the scary things he just described. What makes the stories tragic is that they were actually avoidable if someone had asked some of the questions before. We have all heard the stories about people online creating an avatar; an identity that does not reflect who they really are. Don’t allow a love-based fantasy to ruin your otherwise stable reality.

It is axiomatic that divorce is an emotional process. Samuel Johnson summed up domestic life best when he wrote, “To be happy at home is the ultimate result of all ambition.”

One of the great challenges of representing clients going through this highly emotional chapter of life is that their focus tends to be on the present. Certainly, there are many daily issues that do merit attention. We live day-to-day. But, when I do an initial interview with a client, two of the questions I try to focus on are: (1) how many years does this client have until their productive (i.e., income producing)  life will end, and (2) how is the client suited to prepare for that day?

These issues have become more acute over time. When I began working as a divorce lawyer in the 1980s, some elements of life seemed fixed. Retirement was at age 65. Most clients aged 40-60 either had stable employment or were married to spouses who had stable employment. Stable employment meant mid to long-term employment in a stable industry for a stable business. All of that has changed.

Today I am meeting with people who have not reached 50 who report that they are concerned about whether their employer will still exist another decade or whether they will survive as employees. What has changed so dramatically in the past decade is that it is often the most senior business executives who are talking about such vulnerabilities. Many of these people have very solid retirement assets today, but they have job insecurity. When we explore that issue, these often highly talented people are seeing a future as consultants working spasmodically or experiencing long periods between jobs.

The September 4, 2018 edition of the Wall Street Journal focuses on a subject too often forgotten in the divorce process. How will we prepare for a retirement in an age when we may find ourselves effectively “retired” years before we expected it?

As the Journal article correctly observes, financial needs in retirement have been more the subject of “convention” than actual study.  The conventional wisdom is that we will need 70% of our final annual income in retirement. The financial services industry has promoted 80% for reasons that are self-evident. The Journal article by Dan Arierlt and Aline Holzwarth challenges these assumptions and correctly observes that all of us whether going through divorce or not, can actually do the necessary homework ourselves. It can be uncomfortable work, but it is highly necessary work.

Realize first that many of us are being forced to pull down retirement assets long before we expect. That can be caused by unusual life events or even something as simple as being terminated while a loan is outstanding on one’s qualified retirement plan.

The starting point is to look at what retirement mechanisms are out there. Social Security is the most ubiquitous and the same issue of the Journal contains an article debating the merits of taking that benefit at 62 in contrast to normal retirement (roughly 66) or deferring to age 70. Then some of us still have defined benefit plans or annuities, which will begin to provide monthly income for life. Finally, we turn to the defined contribution accounts, whether IRAs, 401k’s or 403B plans. With these accounts, the question revolves around how and when to draw. The goal of that game is to die while still solvent although an increasing number of Americans are dying in significant debt.

The Journal article notes and we have observed that many people launch into retirement having lost their regular salary but acquired an additional 8-10 hours a day on their hands with not much to do. Many of us dream of time to golf or attend the theater. Golf is a $40 a day activity. Broadway is a bad example, but the average ticket is over $100. Still want to see your pro sports team live?  Baseball $40 a day. Pro football is Sunday only but $172 for the ticket alone. Most of us do not really consider downsizing things like auto purchases and we now have 365 days a year to visit Florida in winter or friends and family the rest of the year. In short, we have witnessed clients who retired at 65 with $700,000 in retirement who seem to think they can maintain a $6,000 a month lifestyle. They can, so long as they don’t plan to live more than 10 years.

The article encourages people to actually wander into the weeds of these mundane daily costs while acknowledging that things like uncovered medical and long-term care expenses are unknowable given the state of our health care system. But, the article does not pay sufficient attention to what I will call the “core expenses” Will you retire with a mortgage and if so when will it be retired? Can you really afford to live in the home you have grown to love and nurtured with 30-40% of your pre-retirement household income?  The answer may be yes but the price may be a golf membership or the annual pilgrimage to the seashore. People don’t like to make these choices but you risk burning through your retirement too quickly unless you assess costs. Keep in mind as well that as you grow older, some things you do yourself like mowing lawns or cleaning windows and gutters will have to be outsourced unless you want to budget for some inpatient rehab when the hip breaks.

The other area not discussed but an area of high vulnerability for retirees is unbudgeted “child needs.” As attorneys, we have seen divorce clients who had large portions of their savings dispersed to subsidize a child’s drug rehabilitation, criminal defense or creation of a new business enterprises, built more upon hope than expectation. Their children have effectively made a once secure retirement far less secure. The parents providing these resources underwrite these or even more frivolous expenses (e.g., family vacations), ignoring the fact that as retirees, they have no ability to replace spent assets.

The electronic version of the article links to an Excel spreadsheet that identifies expenses by categories. Anyone contemplating retirement needs to look at that budget. A similar one can be found on the Pennsylvanian support rules by clicking on Income and Expense Statement.

Retirement is an uneasy subject especially in a world where the vagaries of employment may leave us retired long before we expect. But we need to look carefully at a day when we cannot replace what we consume with additional labor. And, in my world, we also deal with taking a retirement that might comfortably support two people in one household, which becomes stretched beyond normal limits because divorce has now taken a common resource and demanded it support two independent homes. The truth is that we are living a long time; a fact underscored by watching 106-year-old Roberta McCain bury her octogenarian son. Therefore, whether you are enduring a divorce or just thinking about your future, those thoughts need to focus on what you will need in the years ahead and how you will “mind the gap.”

Time flies!  In February of this year, a breaking story emerged about a senior White House staffer who was struggling with a security clearance.  The staff person was Rob Porter and his problem was that he had been accused of the physical abuse of his former wife, Jennifer Willoughby.  Willoughby appeared in an interview with CNN’s Anderson Cooper.  On February 23, we wrote that every American with a teenage child should have their child watch Willoughby tell her story in a way that was both elegant and chilling.

On August 8, I listened to National Public Radio’s Terry Gross as she interviewed Jennifer Fox.  Jennifer Fox is a filmmaker of some note and she has just issued a semi-autobiographical movie documenting her own sexual abuse by a coach when she was thirteen years old.  The movie called The Tale, is distributed through HBO.  I cannot say that I have seen the movie, which even Ms. Fox notes it to be an amalgamation of her personal history with fiction.  But the interview with Terry Gross on Fresh Air is Fox talking about the experience of being seduced and having a sexual relationship with a prominent adult male before the onset of puberty.  This all transpired while her doting parents took what seemed justifiable pride in their investment in a private athletic coach to advance their daughter’s athletic skills.

This story is not unique.  As we are learning from the US Olympic Committee and more than a handful of college campuses, this kind of sexual grooming by a person “in authority” goes on all of the time.  What is so important about Jennifer Fox’s interview is that she has the objectivity to evaluate what happened in 1973 from all sides.  She considers what her parents might have seen but missed.  She discusses what she thinks motivated a forty-year-old man to want a thirteen-year-old girl and that discussion is one not infected with rancor.  It is as if she is describing an auto accident unfolding before her eyes.  Most importantly, she probes deeply into how she fell prey to this relationship and negotiated her way out of it.  You can tell from the interview that she has reviewed her teenage years with a jeweler’s eye and the result is something all of us should hear.  Almost all teenagers feel powerless and quest for approval and recognition. That creates vulnerability.  Adults in western societies tend to be youth obsessed.  If you doubt that proposition, I commend you to look at the career of Brook Shields who played a twelve-year-old child prostitute in her 1978 major film debut or Jodi Foster who was 14 in 1976 when she played the same kind of role.  Filmmaker Fox was in high school when those films were issued and she echoes a 2007 Mayo Clinic study, which observes that victims of childhood sexual abuse are often prone to inflict their trauma on the generation that follows them.

As with Jennifer Willoughby, Jennifer Fox has a story to tell that is highly instructive.  It is all the more valuable because there is little if any time devoted to blame or retribution.  I commend the interview because it is not fictional.  I suggest that while it covers a sensitive subject, it does so in a real and unemotional way.  If you are the parent of a child, you have already tried to teach your child to be wary of “known risks.”  But we don’t like to consider sexual abuse a known risk.  However, if you think that risk is remote, consider the fact that Larry Nassar practiced medicine for just over twenty-five years.  At last count, two hundred and sixty-five women profess that the team doctor for USA Gymnastics abused them.  How can that be?  Listen to Terry Gross ask Jennifer Fox how and teach your children well.

Every year, both in April and in October, divorce lawyers face a dilemma.  While April is the official tax deadline, just about everyone knows that “complex” returns are almost never complete when spring rolls around and many filers defer to October.  But, when couples split they often ask for the first time whether they should be filing jointly with their spouse.  This often presents difficult questions for the lawyers because we are not accountants and we are latecomers to the financial history of the marriage.  The easy answer is to say “Never!” in response to the inquiry, but that usually means the marital estate will have additional tax burdens.  It also is often a financial shot across the bow of the primary breadwinner, causing aggravation that can set a decidedly negative tone to the negotiation process.

Inevitably, once the discussion about joint versus separate returns gets underway, one of the parties introduces another term, “innocent spouse.”  For many years, if one spouse was seriously hedging in reporting income or by deducting improper expenses, the spouse who did not produce the income or determine the expenses could claim that they should not be held liable for the taxes, interest and penalties.  This was because he or she did not know and could not reasonably have known about the tax evasion.  It is an area where laypeople seem to think they are expert when they most certainly are not.

On Saturday, the Wall Street Journal reported on the story of Rick Jacobsen.  Rick filed jointly with his wife.  In 2012, the IRS found that Mrs. Jacobsen had embezzled about $500,000.00 from a non-profit where she did accounting.  Most people don’t realize this, but if you steal money, the government classifies it as income and you owe taxes on it.  So the IRS sent the joint filing Jacobsen’s an “assessment” for $100,000.00 in income tax due but unpaid.  Jacobsen contested the assessment contending that he did not know about the “income” and should not be assessed for something his wife did without his knowledge.  Last month the U.S. Tax Court agreed.

How come the IRS did not just get the money from Mrs. J?  You know.  She was in prison and the money had disappeared.  So, Mr. Jacobsen filed his own Form 8857 and claimed he knew nothing about the income or the tax associated with it.  He was underway when a new wrinkle emerged. His now “ex” told the Service he did know about the money taken.  Innocent spouses are not innocent if they either knew about or “profited” from the wrongdoing spouse’s conduct.  Thus, if you are reporting $4,000.00 a month in income and you are making mortgage and car payments of $5,000.00 a month, the term “innocent” may not fit comfortably around your financial neck.  The IRS denied Herr Jacobsen relief and he appealed to the Tax Court, which heard his case in 2017.  By the time the case was heard the tax due had swollen to $150,000.00 with penalties and interest.  His happy news is that the Court decided for him on almost all of the unreported income.

How did he prevail against the government?  First, he showed that he was financially unsophisticated.  His wife was an accountant.  He had an associate’s degree and worked in a cheese factory.  Second, and most important, he could show that the money embezzled did not inure to his benefit nor was it apparent from his wife’s lifestyle.  The couple did gamble a lot, reporting $160,000.00+ in gaming income and corresponding losses in one year. The couple filed electronically and husband said his only involvement in tax preparation was providing his W-2 wage statement to his wife.  Not only did their lifestyle not improve, at one point their utilities were suspended for non-payment.  The Tax Court accepted his testimony that his gaming activity was quite modest and involved only slots.  One can picture the IRS attorney wincing during that testimony.  The Court also did not credit wife’s testimony that her husband knew because it was not supported by any evidence.

Other intangibles are credited with his win as well.  He is a disabled veteran who is no longer married to the offending taxpayer and aside from the issues associated with his joint filing, all other returns he filed showed income properly reported and taxes properly paid.

The Opinion reported as T.C. 2018-115, is worthy of review as the presiding judge marches through the statutory facts and case law to reach her conclusion.  She found that husband was “out” for most of the tax liability arising from 2010, but had to pay tax on a small piece of unreported income in 2011 because he filed a joint return, even after his wife was charged with embezzlement. Note also that the case is decided under precedent from the Seventh Circuit Court of Appeals. Other Circuits may employ other standards or analysis.

Also important to know is the statistical trend.  In 2013 there were roughly 35,000 innocent spouse cases presented for disposition.  Relief was denied in just over 10,000 of those cases and granted in some form or the other in 25,000.  In 2017 the number of requests had fallen to 25,000 and in that year the denial rate soared so that the chance of denial was equal to that of getting relief.  As Sgt. Esterhaus said best, “Let’s be careful out there.” And, beware that the tale of an ill-advised joint return may come with a tail of never ending tax obligations.

A couple weeks ago this writer was asked to sit on a panel discussing the future of family law almost forty years after the no-fault and equitable distribution schemes were adopted and the federal government began promoting guideline based child support. One of the concerns I expressed to the Family Law Section of the state bar association was that support cases were taking too long to decide and costing too much to manage by conventional trial. At that time, the immediate poster child for my argument was Hanrahan v. Bakker, a high-income case that took years to resolve. During the interim, husband’s income boomeranged from $1 million to $15 million per annum.

Well, a new poster child emerged last week with some very ugly facts. Morgan v. Morgan is a decade long odyssey that launched in neighboring Maryland and then ambled into southwestern Pennsylvania. After almost 20 years of marriage, the parties formed an agreement in 2003 by which husband committed to pay $60,000 a year in alimony until 2007 at which point the alimony would be subject to modification. His separation income was reported as $144,000. As the modification date approached husband filed the decree and a petition to modify in Franklin County and asked that the alimony be cut to $1,000. Former wife responded with a petition to increase. The Pennsylvania Court heard the case and granted the reduction to $1,000. In late 2007. Wife appealed and secured a remand that insisted on a record showing a change in circumstances and an analysis of the alimony factors (curiously) under the Pennsylvania alimony statute. Recall, this is a Maryland divorce.

The Trial Court re-opened the record and held a hearing based on the remand, again deciding in December 2011 that $1,000 a month was the number warranted on the facts. That decision was also appealed, but while the appeal was pending former wife filed requests for relief in the appellate court based on assertions that her former husband had submitted false tax returns and other income data at the 2011 remand hearing. The Superior Court denied that request and affirmed the second trial court ruling.

Wife then filed a new modification petition in 2012 alleging the fraud that she had brought to the appellate court’s attention on appeal. At that hearing husband stipulated that in 2007, when he sought modification his income was $415,000 and in the ensuring years, it had varied from a low of $340,000 to a high in 2015 of $663,000. The trial court found his misrepresentation of income “despicable” but appears to have decided that the matter was res judicata and not subject to adjustment on the 2012 petition. That ruling came in 2016. Wife appealed a third time, which appears to have been the charm based on what we saw published on July 20 in a published panel decision written by Judge Dubow.

Two issues loom large here. The first and obvious is the modification. The second was the request of wife for attorney’s fees. The husband stipulated to the hourly rate of wife’s counsel and appears to have not contested the amounts. But the trial court awarded only 75% of the amount sought and excluded any services rendered before the fraudulent evidence was brought to the appeals court’s attention.

On the first issue the Dubow opinion states unequivocally that a request to modify alimony is an appeal to the equitable powers of the court and that a party who presents false testimony and corresponding false documentation is not entitled to any form of relief. Accordingly, it dismissed husband’s petition to modify (circa 2007) ab initio.  On the counsel fee subject, the court noted that while courts have jurisdiction to decide the reasonableness of fees where they are contested, here they were not. Moreover, as in Krebs v. Krebs, this litigation was initiated based upon false information and merited an award under 42 Pa.C.S. 2503. The Superior Court remanded the case to re-institute the $5,000 monthly award and to modify the counsel fee award to 100% of the amounts stipulated.

Wow. One cannot challenge the justice that appears to be done here. It is every lawyer’s bad dream. False testimony that is believed in the first instance and affirmed by the trial court even after it has been revealed on remand. Worse yet, the appellant appears to catch the lie and try to get the appellate court to stop the train only to see the application to correct or re-open the record denied and the 2007 ruling affirmed. So justice was done and in a concurring statement, two judges observe that the case merits consideration for criminal and disciplinary proceedings. Did we mention that Mr. Morgan is a lawyer?

However, the opinion opens doors just as it seems to be closing them. First this is a modification of a “foreign” (i.e., Maryland) alimony decree. As a matter of law, should not that have been decided employing Maryland alimony law? We can all agree that Maryland is not a state where false evidence is admitted and endorsed but the Superior Court’s first remand demands change in circumstances and review of the Pennsylvania alimony factors. Second, and related, what became of wife’s petition to increase? Husband’s income doubled and tripled from 2007 to 2015. Certainly, that creates an argument for an increase under Maryland law regarding modifications. The remand order says re-instate the $5,000 award but does not address the 2012 petition to increase.

Finally, there is the issue of finality. This may have been where the trial judge was looking when he acknowledge in 2011 that husband’s contact was despicable and the income grossly underrepresented, but he stuck to his $1,000 ruling. Horrible. Wrong. But suppose wife discovered the fraud five years after the alimony terminated. Is there a statute or equitable limitation period or can these claims be brought whenever fraud is discovered and/or asserted. No one likes the idea that the wrongdoer escapes unscathed. Suppose the defendant’s lawyer in a personal injury case sees the plaintiff, playing tennis 3 months after plaintiff secured a million dollar verdict premised upon his testimony of irreversible paraplegia. Can the defendant ask for a re-trial? Would it make a difference if the plaintiff were a regular on the court in the months preceding the trial? Do victims of family law fraud have more enduring claims than victims of civil fraud? Or, more succinctly, is final ever final where fraud is involved?

This essay started on a different topic. So I should circle back and close out that point. This is an eleven year alimony modification proceeding. In Hanrahan v. Bakker, the modification petition for child support was filed in December 2013. The Supreme Court ruled in June 2018 with a remand to the trial court to create a record of expenses related to incomes in 2012. That record will need to encompass at least six years of income and expenses. Folks, unlike asset distribution, these support and alimony cases involves the funds people live on every day. We need to explore more efficient means of getting to a result in an age when income is less regular and more spasmodic.

Congress has been crowing about tax simplification for years. They had a one-page income tax return in 1913 when the first modern return was published by the IRS.  But even then, a one-page return was a written “sleight of hand” as the first line stated Income and the second said only “Deductions” before calling the result “Net Income”.  The new form published on June 29, 2018 by the IRS does purport to be a post card, but as there are still many thousands of pages of tax law and many more thousands of IRS regulations, don’t get too excited just yet.

The new form is worth taking a look at because last year’s tax reform completely altered the landscape of the personal return we have come to know and loathe.  There is simplicity: Your 2017 return took 43 lines before you reached the magic box “Taxable Income”.  The new form gets you there in 10 lines.  How does that come about?  By moving most of the tax return to a supplemental document called Statement 1.  Statement 1 appears to capture the other 33 lines of the old Form 1040 and Schedule “A” (the itemized deductions) as well.  You will still be able to itemize but most people are not going to profit from that experience because a lot of itemized deductions – e.g., mortgage interest, state and local taxes, miscellaneous deductions and medical expense deductions are either phased out or extremely limited.

Family lawyers do these calculations every day, and while we wait for final word and temporary regulations to be published, what we are doing is taking “Gross income” and subtracting $12,000, 18,000 or $24,000 to arrive at taxable income.  Those amounts vary based on whether you are single/married/separate ($12,000), head of household ($18,000) or married/joint ($24,000).  The tax tables are also new and different, and, as some political groups are advertising, they may mean a tax increase for a fair proportion of “middle Americans”.

The biggest changes:

No more dependency exemptions.  If you have four minor children and took the standard deduction in 2017, you had $36,800 in income before the US started to tax you.  Today, that tax starts to bite at $24,000.  Dependency exemptions exist to determine your tax status (e.g., head of household) but they have no arithmetic meaning (in 2017, you deducted $4,050 for each dependent).

State and local income taxes are now combined with real estate taxes and the deduction is capped at $10,000. This is the change that has our neighbors in New York and New Jersey screaming because they pay significant income and real estate taxes. But, even in low tax Pennsylvania, a person with a $1,000,000 home in suburban Philadelphia commonly pays $16,000 in real estate taxes. That person also typically makes $250,000 a year in income and pays $10,000 in state and local taxes. In 2017 he/she deducted both items and reduced taxable income by $26,000 + any interest payments on the mortgage.  In 2018 the mortgage interest deduction is still there, but $16,000 in “tax” deductions (income and real estate tax deductions) disappeared. Result: $4,000 increase in amount due to the IRS.

Alimony. Make your deal and have it in writing before December 31, 2018 because those deals made in 2019 and beyond do not allow alimony to be deducted. Nor is the payment taxable to the recipient.

Miscellaneous deductions included investment fees and sums paid to attorneys to secure an alimony award; gone.

Casualty and theft losses:  If uninsured, they used to be partially deductible.  Not any more, unless the President declares that your casualty occurred in a disaster area he designates.

The jury appears to still be out on HELOC loans or mortgage interest generally. The conservative advice is that your HELOC needs to be exclusively for improvements to your home for it to be deductible. The mortgage interest on new loans is now capped at $750,000 meaning that if you have a million dollar mortgage you formed after December 15, 2017, one quarter of your interest payment cannot be deducted.

So prepare yourself. Tax reform was sold as tax savings. Some will benefit and some will see their federal taxes on the rise.

As June and the front half of the year grind to a close, it is the perfect time to do a couple things which could save you a LOT of legal fees in the next 12 months.  Perhaps not, but it is worth the effort and is an effective piece of evidence in court even if you fail.

  1. Download the school calendar for 2018-2019. They are done now.
  2. On a blank calendar record the school holidays and “breaks”.
  3. On the same calendar put in the custody schedule now in effect including holidays.

While you are doing that, note when the conflicts arise.  School breaks and holidays can wreak havoc with otherwise sensible custody schedules.  Where you see havoc, think about if weekend switches or other alternatives can lessen the pain and then send over those solutions to the other parent.

I would not recommend the second step be merged with the first.  But, once you launch the calendar dispute missive, it is time to start a discussion with your kids about the activities coming up.  The available menu of kid activities today is pretty much limitless.  In addition to what they want to do (everything), we have the matter of what parents think they should be doing.  This is an especial set of problems where fathers intersect with sports.  Dads seem to assume that their offspring just naturally want to play the same sports they did. That works for a while as kids see this as a great way to connect with a parent. But kids have a tough time telling a parent that their love of baseball or curling has subsided and that they would like to try golf or less competitive things like rock climbing. Summer affords vacation and other times when a parent can have a lengthy heart to heart talk with a child about what he/she wants to do or be. The key then is to help the child communicate any change of heart to the parent who assumes that he will play baseball until the first pro contract is signed.  Not easy, especially when a child senses that he or she will disappoint a parent.  Still, much easier to address now rather than after the sign ups have been completed, Dad buys the new Marucci bat for $300 and has signed up as assistant coach.

Yes, July is all about fireworks.  But, perhaps best to have them now rather than a month from now when most of the fall activities start in full gear.

On June 19, 2018, the Pennsylvania Supreme Court, in an Opinion that could be described as unanimous, ruled that the trial court was correct when it decided that it could deviate from presumptive minimum guidelines in a high-end child support case. The case has been floating about for quite some time. We wrote about the Superior Court decision back on December 7, 2016 and we provided the incomes the Delaware County Court had to look at:

Mom Dad
2009 184,000 4,000,000
2010 139,000 1,100,000
2011 145,000 2,300,000
2012 105,000 15,500,000

The case arises from a property settlement agreement which stated that the parties would exchange tax returns and calculate child support annually based on respective net income “and Pennsylvania guidelines, provided,…either party may apply to the court to adjust child support…based on relevant factors.” Those last few words may have made a world of difference because if the sentence ended without reference to “relevant factors”, the obligor may have been stuck with the presumptive minimum contained in the guidelines. Recall that the right to support as a matter of contract in a divorce setting may yield a far different result than one decided in support court.

One cannot fault the majority opinion of Justice Baer, which is itself, lauded by the concurring opinion of Justice Wecht. The line of reasoning is fairly clear. Child support guidelines are premised upon economic studies of child needs. However, as income climbs higher and higher, needs become less easily calculated. When it adopted “guidelines” for families netting more than $30,000 a month, the Court merely extrapolated and largely speculated about those needs. So, even though there is a guideline amount and that guideline amount in Hanrahan, produced a support order in the range of $60,000 a month, the parties should have the right to make a record about the specific needs of such families and dip into the evidentiary well known as “lifestyle.”

What concerns this writer is, just what is a trial court to do with this “lifestyle” question and just how far does the evidence go? Needless to say, the law seems quite clear that if I make $7,500 a month and my ex brings down $2,500, my “lifestyle” testimony is not going to get very far. I have to fit my lifestyle around the guidelines, and unless my kids have some very unusual needs, their “lifestyle” is not going to get any more consideration than mine or that of the prodigal mother.

But once the income balloon ascends above 30,000 feet, the door of Melzer v. Witsberger appears to spring open despite the language of Mascaro v. Mascaro. This means inquiries into “lifestyle” and that is a pit, which has no bottom. The facts in Hanrahan illustrate the point. Look at Mr. Hanrahan’s income. A million or two a year invites travel on timeshare jets or acquisition of a reasonably fancy Cessna. Get to four million in income and now a Learjet 35 falls into play. As I reach the million a month club, I have arrived in Gulfstream territory although my plane will probably be an older model and I may not be able to lug around more than seven friends and family.

Are judges supposed to hear this? Moreover, what wisdom can their life experience impart when the pinnacle of their lifestyle is an upgrade to first class on a scheduled commercial airline? At what level of income do we abandon commercial aviation or propeller driven transportation in favor of jet aircraft? In addition, what do we do in instances where the income is a one off; e.g., a lottery win or sale of a business, or the magnificent income is not sustained. Once children have gone “private”, can we ask them to downgrade back to commercial aviation?

I have participated in these trials and suffice to say, after a few hours they become tedious. The obligors love to wax on about how frugal they can be and “in touch” with their humble beginnings, whether real or imagined. Obligees remember seeing Parsifal from the box seats at the Bayreuth Festspielhaus and knocking back glasses of Krug Clos du Mesnil at intermission with the Obligor before the champagne and the marriage soured. The judge has to listen to how much the fourteen year old adores Wagner and the “Ring Cycle” while the judge wonders whether the “ring cycle” is a setting on the Whirlpool in his laundry room.

Reason tells us that $2,000 a day is a lot of child support. The Supreme Court was right to say that in settings such as this, expenses do matter. But, in communications I have had with lawyers who lived through the days of Melzer, there is fear that unless someone limits the “needs” and “expense” testimony, we will have courts hearing days of testimony. Taxpayers in a setting will underwrite the judicial time where this obligor’s 2012 daily income rivaled the annual household income of the mean Pennsylvania household. That is not good for anyone, except perhaps the lawyers asking whether little Rachel eschews cotton as she has grown used to cashmere.

Hanrahan v. Bakker 19 MAP 2017   [J-82-2017]   6/19/2018