AAML NJ Blog

By Carolyn Daly, Esq., Founder and Managing Partner of Daly & Associates, LLC

It happens all the time: a parent makes an accusation against the other parent and the court has to make a quick decision, based on limited information, on what to do with parenting time for the accused parent.  It should be unsurprising that courts faced with this situation will claim they lean toward protecting the child, even if it means a parent’s right to parent their child will be curtailed.  Most often, the court’s solution is to restrict parenting time with the accused by either suspending that parent’s parenting time, or instituting supervised parenting time pending a hearing.  But does this actually protect the child?  

Our custody statute, N.J.S.A. 9:2-4, “declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents” and “it is in the public interest to encourage parents to share the rights and responsibilities of child rearing.”  So when is restricting a child’s contact with a parent actually in the best interests of that child?

Our courts do not appear to have really addressed this issue head-on, as there are very few cases that address supervised parenting.  So what, exactly, is the basis to implement supervised parenting time?  Pursuant to N.J.S.A. 2A:12-7, “in the area of child visitation a court often orders supervised vitiation where there has been a history of child abuse, medical disabilities, psychiatric problems or other situations where the safety and welfare of the child may be jeopardized.”  If you think that’s pretty broad language…well, it is.  Thankfully, a recent case in the Appellate Division may have given lawyers and their clients better guidance for future cases.  In P.T. v. A.T., 2021 N.J. Super. Unpub. LEXIS 789 (App. Div. 2021), a father had his parenting time suspended after his child’s mother accused him of watching pornography in front of his daughter.  The father repeatedly did everything the court asked of him to get his parenting time back, including multiple evaluations, but the trial court kept ‘moving the goalposts,’ and as a result the father was not allowed to see his child for over four years.

The Appellate Division reversed the trial court orders noting at the outset that the trial court never found that the father posed a danger to the child.  The appellate court reiterated that our laws protect against the thwarting of parenting time.  Thus, a court may exercise its authority to restrict parenting time “only when credible evidence clearly and convincingly establishes parental unfitness or harm to the child.”  The trial court “had not determined the child needed protection from [father]” and thus the suspension of his parenting time was unreasonable.  The Appellate Division thus sent the case back to the trial court to hold a hearing.  At that hearing, it was the mother’s burden to prove (1) that the father watched pornography in front of the child, and (2) if proven, that this rendered the father unfit or put the child in danger.  Only then could the court consider restricting father’s parenting time.

Although P.T. dealt with a case of suspended parenting time, the standard enunciated by the Appellate Division can clearly apply to supervised parenting time as well.  No longer should courts simply err on the side of restricting parenting time, either through supervision or suspension, when an accusation is made.  Doing so has the effect of placing the burden on the accused to prove himself or herself innocent of the accusation.  The court was clear in P.T. that the burden is on the accuser to prove by clear and convincing evidence that the accusation is true and that the accusation, if proven, either renders the accused parent unfit to exercise normal parenting time, or would place the child in harm’s way.  It is only then that the court should act to restrict the accused’s parenting time.

While placing the burden on the accuser is significant in itself, the amount of proof required is also significant.  In most family matters, the party who has the burden of proof simply needs to prove their position is “more likely than not;” they need only a scintilla more evidence to learn toward their side.  That is not the case here.  Now it is clear that accusers must prove by clear and convincing evidence, a high standard to meet, that the accusation is true and renders the other parent unfit.

Unfortunately, P.T. is still not perfect.  As just one example: how long should the supervision be in place?  Most experts agree supervision should only be kept in place long enough to get past the harm and should not be used more permanently.  The hope remains that one day  the court can more clearly delineate standards for trial courts to follow, for example, period reviews every few months to determine whether supervision should continue or cease.  Until then, parents will simply have to stress to the courts that supervision should not be a long term solution.

The safety and well-being of a child is arguably any parent’s primary duty.  If you have had your parenting time restricted, or if you believe you have evidence that the other parent of your child should have his or her time supervised, call Daly & Associates today to set up a consultation with one of our attorneys.  We’re working “Daly” for you and your children.

By Peter C. Paras, Esq.

Children of all ages will be returning to school in the next few weeks. Many high school students will soon be taking the PSAT, SAT, or even submitting college applications. In New Jersey, divorced or separated parents can be required to contribute to their children’s post-high school educational expenses. That not only applies to four-year college programs, but to junior colleges, trade schools, and vocational schools.  

Each case is fact specific, taking into account the unique circumstances of each family. Among them is the child’s aptitude. Is he a serious student? Are her grades and test scores high enough for admittance by the schools of her choice?  

Also important are the family’s finances. Does the divorce, which usually spawns two households with the expenses that go along with each, have enough family income to contribute to college? And, in what proportions?  Are there savings that were earmarked for college? Are there savings that were not, but can be used for college?  

Is financial aid available – scholarships, grants, and loans – and have the student and the parents cooperated in applying for it and submitting all required financial documents (e.g., income tax returns)? If loans are available, are they taken in the parents’ or the student’s name and who will repay those loans, regardless of whose name they’re in? 

These are some of the factors to consider when the time comes to think about college. There are many more. This is one area divorced parents have in common with parents who aren’t divorced. 

Post-high school education is expensive. It is almost always an extraordinary expense that goes well beyond the monthly family budget. Prudent parents plan for these expenditures well in advance. Often divorced parents are at odds. They have competing interests, each trying to safeguard as much of the available income for himself or herself as possible.  

Cooperation is never more important than when a child’s future is at stake. College costs are high. There is no denying that. But what better to spend your money on than your child’s education? To give your child the tools to see the world with a wide lens and to begin a productive and prosperous life are among the best things parents can do for their children.  

Think about (and talk about) these issues early. Don’t avoid them until the last minute. They won’t go away. By sharing information and ideas, and by being willing to sacrifice a little, you can ensure your child has the opportunities you want him or her to have for a bright future. 

Peter C. Paras is a shareholder in the Family Law Firm of Paras, Apy & Reiss, P.C. For more information please see the firm’s website at www.par-law.com. 

The information in this article is not intended as legal advice.  For legal advice you should consult your attorney.

By Randall M. Paulikens, CPA, ABV, CFF, CITP of Friedman LLP

Do AAML fellows really need to hear another person talk about what has happened in the last 18 months?  All of us, as family members, business owners, employees and employers, buyers and sellers - know what has happened.

What we need to think about is - what will happen.  Some ramifications of COVID may not be as obvious as we would like/hope them to be.

Most professionals in the family law arena normally rely on the fact that the recent past is indicative of the near-term future. That is the family spending, income, etc. will largely continue into the future and the recent past allows us the opportunity to predict and advise clients, draft agreements, and settle cases that implicitly assume past is prolog.  

For valuation purposes, in most cases, the privately owned business was/is expected to continue in a similar manner as historically occurred.  When the expectations are vastly different (positive or negative), additional thought, creativity, and investigation is necessary.  We have all heard the terms “passive vs active”, “marital momentum”, “Goldman vs Goldman”, “change of circumstances”, “earnouts”, etc. etc.

Will the December 31, 2019 economy return? When will it return? How do you know? How can your clients make educated financial decisions post pandemic?

The economic news reports discuss emerging issues that affect businesses and could affect your clients’ finances. Therefore, all of us should discuss these issues and discuss the potential of any potential, future, changes. These issues include industry, worker, and geography specific.

Oversimplifying completely – business that were operating in 2015 to 2019 – now in 2021 basically fall into three categories. 

• Businesses that have failed.
• Businesses that have muddled through.
• Businesses that have had banner years.

The first is straight forward – or is it? Did the business fail only to be reopened in a new incarnation?  Is the demand for the service still there and did the business fail due to the lockdown itself?

Businesses that had banner years – can the business and/or industry sustain their recent trend? Are the 2020/2021 levels of revenue, profit, backlog realistically expected to continue?  In 2020, when vacation travel was severely limited, people spent significant amounts of money on their homes. At some point, this will slow down or end, as competition for a family’s cash flow will increase as travel and leisure venues open.

Here is the hard one – companies that have muddled through. What does their recovery look like – recovery of revenue, recovery of profit – or some other measure?

Most will not argue that a restaurant that is/was limited to 25% or 50% capacity is not fully open.  Now that the capacity constraints imposed by various governments are lifted – does this mean that these restaurants are able to run at 100% capacity? With continual staffing problems, I am aware that some amusement parks are only open five days a week since they can’t staff entirely. I have seen many Starbucks close early for the same reason. From the valuation and income perspective, if these issues affect your case, how should you handle it? Is this a temporary issue, a permanent issue, or do we treat is as a hybrid?

Continuing with the restaurant example – did they ever really run at 100% capacity? Can we define 100% - does that mean a line for tables every night - or seven of ten tables being occupied for dinner?

Pre-pandemic, we might assume that the business was running at its effective capacity if its operations were consistent prior to marital discord. Don’t let the pandemic create an excuse to lower expectations and perhaps settle for less. Also don’t let the pent-up demand lead you to believe that the current situation is sustainable either.

I suggest that you use all of you own life/finance experiences, to create flexibility where possible as the long-term ramifications and adjustments we all make resulting from the last 18 or so months are yet to be known and measurable.

By John P. Paone, Jr., Esq. and John P. Paone, III, Esq.*

When attempting to settle issues in a divorce case, parties frequently employ the services of a mediator. In many cases, mediation works as a successful alternate dispute resolution tool allowing parties to settle their matters without the necessity and costs of a trial. However, often times parties attend mediation without having independent counsel. This is usually a mistake, as the mediator (even if he or she is an attorney) does not and cannot represent either party. Therefore, it is important that parties understand the consequences of their actions when going into mediation without an attorney.

If the parties come to an understanding in mediation, the mediator will usually draft a document known as a “Memorandum of Understanding” or otherwise called a “MOU.”  While a MOU lacks the detail and specificity of a full-blown, formal settlement agreement, it is recognized as a binding agreement if and only if it is signed by the parties. If parties want the benefit of independent advice of counsel before entering a binding and enforceable agreement, they must be careful not to sign a MOU.

Recently, the New Jersey Appellate Division weighed in on this very subject in the case of Glowzenski v. Glowzenski.  In Glowzenski, the parties attended mediation which resulted in the mediator preparing a MOU. The parties, with counsel present, signed the MOU. Although the Husband believed that the matter was resolved, the Wife did not. As a result, the Husband filed an application with the trial court to enforce the terms of the MOU.

After a three-day plenary hearing regarding the enforceability of the terms of the MOU, the trial court ruled that the MOU was a binding and enforceable contract between the parties. The Wife appealed to the Appellate Division and argued that the term sheet's lack of a title and the absence of the parties' attorneys' signature on the term sheet evidenced that no agreement was reached between the parties. These arguments were rejected by the Appellate Division, which determined that “a contract does not need to be labeled a contract to be a contract” and that the fact that the attorneys did not sign the MOU was immaterial as “it is the client's assent that is relevant.” 

The lesson to be learned from Glowzenski is that once a MOU is signed by the parties, the document becomes a binding agreement. An MOU is not enforceable, however, if only the mediator signs the MOU. 

It goes without saying that negotiating a divorce settlement can be a difficult, stressful, and tedious process. Each party must make compromises and concessions on issues that may be extremely emotional and personal to them. There are also many relevant issues which arise in the course of divorce litigation which could be swept under the rug if spouses sign a hastily drafted agreement without taking the time to contemplate all potential issues. Or, as the adage goes, settle in haste – repent in leisure. If you are attempting to negotiate a settlement agreement at mediation as part of a divorce action, remember the age old adage: “don’t sign anything” without first consulting an experienced family law practitioner who can review your agreement to ensure that it is fair and complete.

*John P. Paone, Jr., Esq. and John P. Paone, III, Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.

By Rachel Leberstien, Senior Wealth Relationship Manager and Sharon Klein, President, Family Wealth, Eastern U.S. Region and head of the National Divorce/Matrimonial Advisory Practice at Wilmington Trust

Taxes may not be the top priority of your client when you are helping them through their divorce, but many decisions can be costly if you are not aware of the tax implications, significantly impacting your client’s tax situation, sometimes permanently. Listen as Rachael Leberstien discusses the Ten Tax Considerations in Divorce with Sharon Klein.

For more information, reach out to Sharon Klein at 212-415-0531 or sklein@wilmingtontrust.com.

By Carolyn Daly, Esq., Founder and Managing Partner of Daly & Associates, LLC

Since the pandemic began, the backlog on cases in the New Jersey court system have more than doubled. Judge Glenn A. Grant, the administrative director of the state’s court system, told the New Jersey Legislature in April of this year that a perfect storm was about to thrash New Jersey between the effects of the pandemic and the vacancies on the trial bench in New Jersey. Chief Justice Stuart Rabner recently described the “rate of vacancy on the trial bench in New Jersey as ‘unsustainable’ and the equivalent to losing 90 years of judge time,” in a state of the judiciary speech in May, as reported by State Bar President Domenick Carmagnola, Esq. By May of last year, the Administrative Office of the Courts, which monitors this data, reported that the backlog in non-dissolution family part cases grew by 531%, from 502 cases in May 2019 to 3,170 by May of 2020 and the backlog of domestic violence cases statewide increased from 231 in May of 2019 to 1,370 in May of 2020. In divorce cases, the backlogs grew 70%, from 1,185 cases in May of 2019 to 2,016 in May of 2020. So, how does a person looking to get divorced, or to resolve a post-judgment divorce case, custody, alimony, child support or other family law case get to a resolution?  How can you avoid being stuck in this backlog?

The answer is simple: by mediating or arbitrating the dispute. This can be done by videoconferencing utilizing the Zoom platform which will continue to allow people to miss less work, or time with their children as things open up again.  

You probably know what mediation and arbitration are, but if you don’t, visit https://dalyfamilylaw.net/mediation/ for an explanation of those two alternate dispute resolution options.

Here is how most attorneys mediate and\or arbitrate by videoconferencing:

1.  First we set a date for the mediation or arbitration that works for all parties, working around everyone’s schedule. Our office sends a Zoom invitation to appear on the date set.
2.  Counsel and each of the parties accepts the invitation for the Zoom meeting.
3.  On the date set, our office, as the host, starts the mediation and each counsel and each party join the videoconference from a desktop or laptop computer, an iPad or iPhone or even just by phone if that is all they have available. If you join by any method, other than just by phone, you should join with video and with audio so that everyone can be seen and heard
4.  Following introductory remarks about the process we are engaging in that day, we will typically meet with the attorneys in a breakout room first and put the participants back in the waiting room.
5.  After meeting with the attorneys to address preliminary issues, we will then bring everyone back into the conference again.
6.  If we are mediating, we will break out each side into a breakout room and then we can go from room to room to mediate as we try to help the parties reach a resolution. For the most part, the parties will not work directly with each other, so if you don’t want to see the other side, you don’t have to. Instead, the mediator will go back and forth between breakout rooms.
7.  If we are arbitrating, everyone stays in the main room and we can have a court reporter join in the process or the Zoom session can be recorded for transcription later. Any witnesses can be sent an invitation as well and be in the waiting room, ready to testify, as the arbitration proceeds. 
8.  In either process, we can share documents by sharing the screen or by email. Documents can also be pre-marked and sent to everyone via courier or mail or even electronic delivery – drop box or otherwise. 
9.  In mediation, the mediator can be working on the MOU (Memorandum of Understanding) or other document memorializing any resolution as the mediation proceeds.
10.  In arbitration, the arbitrator can be keeping notes and has access to the recordings of sessions so as to review testimony when they are working on their decision which can then be emailed to the parties and\or counsel.

At least in Morris County we are being told that even if you case is settled, it will be a few months until a hearing can be settled to enter your divorce and that trials are being scheduled out two years.  My goal at Daly & Associates is to resolve even the most complicated cases within a matter of months, not years through mediation and/or arbitration.

View a list of AAML NJ Certified arbitrators.

By: Soberlink, AAML NJ Gold Sponsor 

Family Law professionals know that going through a divorce is often an emotional time. With 10% of children living with a parent who abuses alcohol, it is common for substance abuse allegations to arise in court. For kids, this can mean unsafe parenting environments, and for concerned parties, this can result in increased anxiety around adhering to specific child custody parameters. No matter the case, as you help your clients navigate the details of their co-parenting agreement, it’s important to keep the child’s best interests at the center of each decision. 

Fortunately for counsel and co-parents, various apps and tools are designed to help litigants and their representatives stay organized, streamline litigation, and minimize the friction between parties.

Communication Tools

Practitioners are aware that families tend to communicate in nuanced ways, whether that's by phone, text, or e-mail, but sometimes that isn't enough for parents to achieve peace of mind their child is with a sober parent. 

"Hostility makes co-parents work against, rather than with, each other: sometimes, they use the kids as messengers, or they withhold support or visitation to punish the other parent. Rather than being a focused parent who acts for the kids’ sake, it’s really a way of excusing yourself from your co-parenting responsibilities," says Jeffrey Cottrill in an article for Divorce Magazine. 

Many apps exist designed to help clients maintain their co-parenting relationship, allowing parents, and sometimes counsel, to sync up in a united digital space. As a litigator, you may already be familiar with:

• OurFamilyWizard — a tone meter that allows co-parents to make sure you are communicating what you're feeling
• 2Houses — an app that offers messaging and mediator access well as document storage
• Coparently — an online directory offering contact storage and printable records for shared expenses

Remote Alcohol Monitoring

Suppose custody and alcohol are present in your case. In that case, incorporating technology like a remote alcohol monitoring system may be an excellent solution to streamline custody, support professionals, and offer concerned parties peace of mind.

Soberlink ensures child safety by providing a reliable tool to document proof of sobriety in real-time. A favorite amongst Family Law professionals, the comprehensive system combines wireless technology with facial recognition, tamper detection, and Advanced Reporting to ensure the integrity of each test and allow swift intervention should a drinking event occur. With Soberlink, counsel can work in conjunction with the ex-spouses to determine custom testing times, receive text alerts, and set up automated reporting options to track an individual’s progress. Further, Soberlink can provide monitored clients with a sense of accomplishment while reassuring counsel and concerned parties the children are safe and with a sober parent.

While Soberlink can help substantiate alcohol abuse claims in court, it can also help dispel false allegations. Using a universal color method, green for Compliant, yellow for Missed, and red for Non-Compliant, the system’s court-admissible reporting makes it easy for Family Law professionals to track client progress and present factual data to the court. Daily, weekly, or monthly client-detail reports provide a comprehensive snapshot of either the presence or absence of a parent’s alcohol abuse. 

Scheduling Apps 

There can be many details in a child's life, and scheduling apps help keep that all in one place. Various apps designed explicitly for co-parenting communication already offer these features. Still, additional scheduling apps exist if concerned parties or counsel find that a simple calendar works best. 

Scheduling apps allow families to keep to-do lists, photos, and recipes on hand with minimal stress. As a bonus, co-parents can also share their schedule with a Family Law professional, babysitter, grandparent, or anyone else who may want to be kept a brief of childcare responsibilities. 

Shared Documents 

During litigation, both parties must have the documents they need to take care of their child's wellbeing. One way to help ensure this is to make sure that both co-parents have access to all of the child's essential records. 

While there may be plenty of occasions where one parent or another may need a copy of the child's birth certificate, this can also be useful in communicating information about school projects or health care decisions, especially when a joint decision is required.

Ensuring all the documents required by each co-parent are accessible may keep minor disputes from ending up in court. A variety of cloud systems are available through co-parenting apps and more traditional cloud-based storage such as Google Drive or Dropbox. 

Video Chats 

There may come a time when one of the co-parents can't physically be in the child's life. This could happen due to travel or an illness, and the COVID-19 pandemic has introduced more considerations to this list. 

In New York and surrounding areas, shelter-in-place orders might make it harder for some families to adhere to their visitation schedules. Some homes may have unique characteristics that make it a more suitable environment for home confinement, such as a better internet connection for school, a private room, or less risk of exposure depending on the jobs both parents work during the pandemic. 

However, the isolation caused by COVID-19 is not meant that the parent should be out of the loop completely. Video chat platforms help make it easy to schedule regular calls with the parent who can't physically be present until they can once again. 

Incorporating these calls into a parenting plan is essential to maintaining the parent-child relationship, whether the cause of the separation is a pandemic or travel. 

Conclusion

Much like their litigating parents, practitioners, too, want what’s best for the child. Child custody litigation can be long and tedious, but spending some time thinking about communication expectations can help mitigate the significant discord that could further complicate matters in court. 

In instances of alcohol abuse, remote alcohol monitoring systems like Soberlink can help rebuild trust, streamline custody, and help keep the best interests of the child front and center throughout litigation. Trust the Experts in Remote Alcohol Monitoring Technology in your next custody case and end the tireless he-said-she-said disputes.  

By Alex Kransnomowitz, CPA and Rory Gannon, CPA at Smolin Lupin

Next month, about 39 million households—with roughly 88% of children in the U.S.—will begin receiving payments from the federal government. As part of the American Rescue Plan Act (ARPA), the IRS will make 2021 advance child tax credit (CTC) payments to eligible parents, starting on July 15.

Divorced parents, however, face a question: which parent will receive the payments?

Why are these new child tax credits different?

The ARPA has temporarily changed child tax credits rules from July 15 through December 2021. The amount has increased, the qualifying threshold has come down a little, and how parents receive credits has changed. Payments will now be received in advance: $300 per month for children under six and $250 per month for children six to seventeen.

The CTC used to be $2000 per qualifying child, but that’s changed for the remainder of this year. Starting in mid-July, the CTC will be $3,600 for each qualifying child younger than six years old and $3,000 for children ages six to seventeen.

The increased credit amount will be reduced or phased out for households with a modified adjusted gross income above the following thresholds:

●     $150,000 for married taxpayers filing jointly and qualifying widows or widowers;

●     $112,500 for heads of household; and

●     $75,000 for all other taxpayers.

However, even if a parent’s income is too high to receive the increased advance CTC payments, they may still qualify for the $2,000 CTC on their tax return for 2021.

What is a qualifying child?

For 2021, a “qualifying child” must be under age eighteen, related to the taxpayer, and claimed by the taxpayer as a dependent. Generally, it also means the child has lived with the taxpayer for at least six months during the year. The child must also be a U.S. citizen or national or U.S. resident.

How and when will advance payments be sent out?

From July through December 2021, the IRS will make advance payments of 50% of the parent’s estimated 2021 CTC. The payments will start on July 15, 2021. After that, they’ll be made on the 15^th of each month, unless the 15^th falls on a weekend or holiday. Parents will receive the monthly payments through direct deposit, paper check, or debit card.

According to the IRS, eligible parents “are slated to begin receiving monthly payments without any further action required.”

For divorced parents, who receives the payment?

For divorced parents, however, the payments can create a bit of a tangle

The payments will flow to the custodial parent who’s claiming the child as a dependent in the preceding tax year. If the parties have an agreement in place to alternate the years for which children are picked up as dependents, then the parent who claimed the children in 2020 will likely receive the automatic payment, if they fall below the income thresholds.

Yet the payments are advance tax credits for 2021—not 2020. The result may lead to a dispute over who should receive the payments. Ultimately, parents will need to discuss the receipt of these funds so that they are reallocated to the parent who is claiming the children as dependents in 2021, based on the divorce agreement.

With the first payment slated to arrive next month, proactive discussion among the parents may help reduce the stress of all involved.

Have questions about this new credit? We’d love to help—contact our experienced Tax Professionals at any time.

Alex is a Member of the Firm and a licensed Certified Public Accountant in New Jersey with over 15 years of experience.  Alex is a Certified Valuation Analyst and member of the American Institute of Certified Public Accountants and the New Jersey Society of Certified Public Accountants. In his role on Smolin’s Litigation Support team, Alex leverages his extensive track record and experience servicing clients in both the private and public sectors.

Rory Gannon is a Forensic and Valuation Services Manager with the Firm. He is a licensed Certified Public Accountant in New Jersey. He has experience working in insurance, investment banking and public accounting for over 8 years. He provides companies and their clients with forensic accounting services pertaining to matrimonial litigation, fraud investigation, commercial litigation support, business valuation, and shareholder dispute resolution.

By Carolyn Daly, Esq., Founder and Managing Partner of Daly & Associates, LLC with help from special guest contributor Barbara Bel, CPA

The new stimulus bill sounds like a great deal: extra money the government is giving you, including your children, as long as your income is below certain thresholds. There’s just one problem: who does the IRS give the money to? To better understand the benefits and potential threats to parents, let’s examine what is in the American Rescue Plan Act of 2021.

Stimulus Funds – where is my money?

The Rescue Act is the third COVID bill to grant “stimulus funds” to individuals, and it’s the largest award yet: $1,400 per person, including children. There are, once again, caps – you may not receive any stimulus funds if your income is over $80,000 if you file Single, $120,000 if you file Head of Household, and $160,000 if you file married. The IRS is in charge of distributing these payments, and will do so based on your 2019 tax returns (unless you filed 2020 taxes). Like with the last set of payments, the IRS attempts to pay these funds by way of direct deposit.

This presents the first challenge for those who are recently divorced: what if you filed joint taxes in 2019 and/or 2020? Did previous stimulus funds get deposited into a joint account? Who has access to that account now? If one spouse received all of the funds and refuses to share those funds, what action you should take? To file a motion and recover those funds can cost you more than $1,400.

For each child or other dependents, you receive $1,400 (again, provided you meet the income requirements). If you are divorced, the IRS will not split the funds. Instead the IRS pays to whoever claimed the children as dependents. This could produce a windfall to one parent. It may not be worth filing a motion to recover the funds. If your dependents are eligible for all stimulus payments, that means for each child the IRS has paid $2,500 over the past year. If you have multiple children and all the payments went to a single parent, it may be worth filing a motion, although that’s still a costly decision to you.

Temporary Increase to Child Tax Credit set to cause havoc

If you thought the stimulus payments were difficult, they’re nothing compared to the new rules on child tax credits. Previously, qualifying individuals received up to $2,000 per qualifying child as a credit against taxes owed (up to $1,400 of the $2,000 was refundable if you did not owe). However, the Rescue Act changed the rules for tax year 2021 only. While this may not impact your 2020 taxes, how you file in 2020 may impact who receives money in 2021, so it’s important to start thinking of this issue now.

First, the maximum credit has been increased, and is also different depending on the age of your children. Assuming you meet income requirements, for each child up to 5 years old by December 31, 2021, you will receive a $3,600 credit, which is fully refundable if you do not owe taxes for 2021. For each child between the ages of 6-17 you will receive a $3,000 credit, also fully refundable if you have no income for only 2021.

The changes don’t stop there. The Biden Administration wants to get these credits out as soon as possible. They have thus directed the IRS to begin making monthly payments of up to ½ of the benefit amount beginning in July of 2021. In other words, instead of claiming a $3,600 credit for a 4 year-old child on your 2021 tax returns that you have to file by April 15, 2022, you will instead receive $300 per month for each month (July-December 2021), and then claim the additional $1,800 on your 2021 returns next year.

There are a number of issues with this new plan, the first one being logistical. The IRS has said they cannot guarantee the system will be up and running in July, so it is unclear whether or not the monthly payments will happen as planned. Now that the tax filing deadline is May 17th, this gives the IRS even less time after tax season to implement new programs. The bigger issue is with the money itself. It is customary in divorce cases that parents alternate the deduction, meaning that the parent claiming a child in 2020 is not the same parent claiming the child in 2021. When the IRS pays these advances, they will be paying the parent who claimed the child in 2020 meaning, in most cases, they may be paying the wrong parent.

There is also an issue because this is a “one time” change to the child tax credit. While the purpose of alternating the deduction is so that each parent gets the same benefits over a two-year period, the parent who is allowed to claim the child in 2021 may actually get more money assuming the advanced monthly payments are made to that parent, but again, it is probably not enough to make it worth the cost to file a motion.

In households with multiple children, the issue may be the amount of the credit now is different based upon a child’s age. It is common in a household with two children for each parent to claim one child each year. If one of those children are under 6, that parent may be receiving a higher amount for the tax credit than the other parent, when the plan was for the parents to receive an equal exempt amount.

While these changes currently only apply to 2021, there is already a strong push to make them permanent. Parents and attorneys must thus begin preparing for multiple future scenarios – scenarios such as what to do if the changes do become permanent, or do not. According to Barbara Bel, CPA and tax partner at PKF O’Connor Davies who helped with this article, the new Congressional changes impact cash flow in divorce and the negotiations on who gets the child exemptions.

Who claims the exemption and what happens as a result, are not an IRS problem. It will fall upon the divorced parents, and possibly their accountants and attorneys, to handle these issues. It is therefore essential to know what is in the new law, and what implications it can have for your clients. Here at Daly & Associates, we have worked with our network of outside advisors to understand how this new law will impact our clients, and we are ready to help you work through it as well.

If you have questions and would like to set up a consultation, call us at (973) 292-9222 or e-mail assistant@dalyfamilylaw.net. We’re working “Daly” for you!

Barbara Bell is a Tax Partner with PKF O’Connor Davies’ Harrison, New York Office and a Certified Public Accountant. See more at Barbara Bel | PKF O’Connor Davies (pkfod.com)

By Daniel Roche, CPA/ABV, ASA and Stefanie Jedra, CPA

The year 2020 may best be known for COVID-19, but it was also the Year of the SPAC.  Everyone has one now – from high powered Wall Street investors to celebrities like Shaquille O’Neal, Serena Williams and A-Rod.  But what are SPACs and why did they rise to such prominence in 2020?  The answers to these questions are not that difficult.  What may be difficult however is the valuation of these speculative investments and how that may affect our clients.

Special Purpose Acquisition Companies, better known as SPACs, have been around for decades.  They are basically publicly-traded cash shell companies (with no operations), with the ultimate goal of acquiring a privately held operating company.  Upon acquisition, this privately held operating company will then become a public company without having to go through the rigor of an IPO process – the IPO process for a cash shell company is much simpler.  Basically, a privately-held operating company either “reverse merges” or is combined with the public cash shell, and viola!, it’s a public company (slightly oversimplified).

The economics around SPACs are also very interesting.  Most SPACs are funded through sponsor investors.  These sponsor investors provide cash to the SPAC in return for “Units” in the SPAC.  Units typically consist of one (1) common share and one (1), ½ or ¼ of a common share warrant to buy shares in the SPAC in the future at a specified price.  Investor cash is then held in a trust earning interest during the period where the SPAC locates a target company to acquire.  The SPAC then has a finite amount of time to identify and acquire a privately-held operating company – this timeframe is typically between 21 months and 24 months.  If an acquisition is not made during this time period, investor cash (plus interest) is returned and the SPAC fails.  However if the SPAC does make an acquisition, significant returns on investment can be had. This is because, typically, SPACs look to acquire companies that are significantly larger (4x – 6x) their initial capital funding and will look to the private markets to raise capital once a target company is identified.  Therefore, SPAC sponsor investors, some of whom could be your clients, could reap significant returns on their investments if and when a successful acquisition takes place.  

While the shares of the SPAC are publicly traded, there is a time period between the IPO of the cash shell SPAC and the acquisition of a privately held company.  Between this time period, investors with significant influence, who may be your client(s), participate in due diligence and vote on any potential merger.  This process is not public and therefore the publicly traded shares will not reflect this activity.  However, the knowledge of this activity does exist.

As you’re probably now thinking, the valuation of equity and derivative investments in SPACs can be quite complex.  Let’s consider the impact on the valuation of SPAC investments in the divorce arena.  With the significant amount of SPAC IPOs in 2020 and 2021, it is likely that we, in the divorce community, will begin to see more and more of these investments sponsored by our clients – or the marital estate in which we are involved.  Since the success of a SPAC is ultimately rooted in a successful acquisition made by this SPAC, there can be significant amount of speculation around the ultimate returns of these investments.  This is where niche expertise comes in.  As always, the concept of known or knowable will be a primary issue in the valuation process as well as the rigor of any amount of due diligence done by the SPAC around a potential acquisition and the ability to acquire information related to these transactions. 

Marcum LLP is the #1 firm bringing SPACs to market.  Our practitioners have worked through vetting large amounts of external valuations of investments in SPACs and have significant institutional knowledge.  If you find that your clients have investments in SPACs or similar investment vehicles, please reach out to us for advice.