Co-Parenting During COVID-19 for Divorced or Separated Families

By: Melissa L. Exline, Esq.

Yes, this is an issue. We have seen an increase in situations where parents are worried for their children and the worry is whether to send the children over to the other parent for normal custodial exchanges during the pandemic. Is it safe? Are the children going to be exposed and bring something here? It is not easy.

In addition, many times, the parenting orders are written so that exchanges are set to take place before/after school. And plans for Spring Break – well, forget about it. All of that went out the window. Already strained communication could be more strained. Since you are reading this, you know this already and you are ready to not let this undermine how you handle the next messy parenting discussion.

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Parents Facing Custody Issues During Coronavirus Pandemic

CORONAVIRUS COVID-19

The pandemic has been especially hard on parents who share custody of their kids. One family attorney has some advice for parents facing the challenge of parental custody in the time of COVID19.

The pandemic has been hard on just about everyone, but especially for parents who share custody of their kids. One family attorney has some advice for parents facing the challenge of parental custody in the time of COVID19.

Surratt Law Practice family attorney Travis Clark, Esq.  says visitation rights have to be observed even with the stay-at-home order. "The problem we are getting right now is one parent disagrees with the other parent on how they are handling this crisis. That is the issue it boils down to," said Clark.

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Child Support Changes

Child Support Colorful Block With Bible And Hammer Over Wooden Desk In Courtroom

By Kimberly M. Surratt, Esq.

The new Nevada Child Support laws will go into effect on February 1, 2020.  The New Regulations in final form are R183-18.  The Regulations refer  to a “low income schedule”.  The Low Income Obligation (2019) will be used on February 1, 2020.

The Low Income Chart may be updated in March or April for the 2020 poverty numbers from the Federal Government.  If the chart changes the regs provide that the chart must be published by the Administrative Office of the Courts (AOC) on or before March 31 of each year.  The AOC will publish the chart in the same manner that they published the updated presumptive maximum chart under the old statutes at www.nvcourts.gov/AOC. (more…)

No Fault Divorce

By Rayna Brachmann, Esq.

Nevada is a “No Fault” Divorce State.  What that means is that one party must assert that the parties are incompatible in marriage, and they can no longer remain married.  The Court rarely, if ever, inquires further.  It is enough to say that we cannot be married anymore and the Court will make a finding that the parties are incompatible and grant a divorce.  This is not the case in every State.

I was recently in South Carolina attending a continuing legal education course taught by an attorney from Florida, who had also practiced family law in South Carolina.  She told me that South Carolina is a “Fault Divorce” State.

Specifically, in South Carolina, there are five grounds for finding fault to grant a divorce.  They are: (1) adultery; (2) desertion for a period of one year; (3) physical cruelty; (4) habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; or (5) on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year. A plea of res judicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground.

When the attorney was telling me about her practice in South Carolina, she said that as a matter of practice, the parties could not agree on the record as the “fault” grounds because that would be collusion by the parties, so it would have to be testified to under oath.  In other words, the parties cannot agree that spouse one was having an affair and they each knew about it.  That would not be sufficient in some courts for a Judge to find fault and grant a divorce.  So one spouse would need to be having an affair, and the other spouse would need to be unaware of the affair in order for it to qualify as “fault” for a divorce.

The attorney related another instance where the parties were using the one year of living apart as the grounds for divorce.  However, they both had to testify under oath as to the period of living apart that they had not had sex during that time.  If they had been physically intimate during the one year period, they would have to start the one year time clock over before the Court would grant them a divorce.

In Nevada, and indeed, in much of the West, we take for granted no fault divorce.  When a party is ready to end their marriage, they are not subject to the year separation with no sexual activity between spouses, nor the necessity to prove that one spouse has had an affair or an addiction, or engaged in physical cruelty.  It was a good reminder to appreciate the easier process for a person who is ready, for whatever reason, to end a marriage that is no longer working for them.

2020 Adoption Tax Credit

Happy couple with little adopted children eating popcorn while watching TV at home

By Kimberly Surratt, Esq.

If you are thinking about pursuing an adoption, make sure you start to start and document all of your expenses related to the process.  In the United States tax code provides an adoption credit for qualified adoption related expenses for each child adoption.  The IRS just released the 2020 adjusted through their Revenue Procedure 2019-44 report.  The maximum tax credit allowed in 2020 is set at $14,300 per child (in 2019 is was $14,080 and $13,810 in 2018).  In addition to a credit, the IRS does allow an exclusion from income for employer provided adoption assistance.

The tax credit is available for must adoptive parents.  However, the credit is not available if the taxpayer’s income exceeds certain values set by the code.  The tax credit begins to phase out for families with modified adjusted gross income in excess of $214,520 and is completely phased out for taxpayers with modified adjusted gross income of $254,520 or more.  The credit is nonrefundable but can be carried forward for up to five years.

The code states that the credit is allowed for “an adoption of a child with special needs”; however, the adoption can be either through private domestic private adoption, international adoption or through the foster care system so long as the child is under the age of 18, or is physically or mentally incapable of self-care.  In contrast, the adoption of your stepchild does not qualify as “special needs”.  The IRS has specifically declared that an adoption by a registered domestic partner who lives in a state that allows same-sex second parent or co-parent to adopt his or her partner’s child does qualify for the credit, as long as those expenses otherwise qualify for the credit.

The expenses that can be used for the credit and the exclusion (the “qualified adoption expenses”) are:

  • Reasonable and necessary adoption fees,
  • Court Costs and attorney fees,
  • Traveling expenses (including amounts spent for meals and lodging while away from home), and
  • Other expenses that are directly related to and for the principal purpose of the legal adoption of an eligible child.

In summary, keep all your receipts and track you any money spent in the process.  The IRS doesn’t require you to have a child identified before the expenses can be used.  Thus, if you start the process and you have had a home study, but you have not been matched with a child you will still be able to use the cost of the home study for your tax credit.  There are extensive rules about what year you can take the credit and they vary based on a domestic adoption versus a foreign adoption.  For more information, the IRS has a published report, Topic No. 607 that lists all of the intricacies to the credit.

How to Navigate Troubled Waters – Helpful Strategies in Dark Times

By Travis Clark, Esq.

There are times in everyone’s life where strife, sadness, depression, anger and grief are in abundance.  The question is not “if” this will occur, it is “when” it will occur.  In a room full of people, imagine who is standing or raising their hand after the questions below are asked:

Please stand, or raise your hand if you:

  • Lost a loved one to an illness, or random act of fate?
  • Experienced a divorce?
  • Had tragedy strike you or your family?
  • Failed at an interview, or test?
  • Ever had your heart broken?
  • Been the victim of infidelity?
  • Been bullied?
  • Lived through a natural disaster?
  • Struggled through infertility, or lost a child in birth?
  • Have you had to cope with suicide?

If you asked these questions to this hypothetical room, the entire room would be standing or raising their hands by the end.

What does this tell us?

That adversity does not discriminate.  If you are alive, you will experience adversity at some point.  If this is a universal truth, then what? Well, then the question becomes: How do we handle this? How do we deal with such adversity?

How to handle adversity is dubbed “resilience” research.  There are whole fields of study on this topic.  Experts in this area study how humans cope with great tragedy when it strikes them.  What causes some to succeed in overcoming their grief, while others do not?  The ability of one to cope with adversity may be inherent in some and not others, but it can be learned, it can be taught.

There are three activities suggested by experts, that any one of us can engage, to get us through our most trying times.  These simple activities are meant to reframe the mind and cause us to see the world through different eyes.  This reframing is powerful, and when practiced with regularity it becomes a bulwark against our darkest moments.

When you find yourself going through an acrimonious divorce, or any adversity, try these three things:

  • Accept, and understand, that suffering is a part of every human life. Terrible things happen to you, just like anyone else.  Understanding that you are not unique in your suffering, helps you not feel a victim of your circumstance and accept the events you are dealing with.
  • Count three good things, each day. Good things that happen to you, or that you are blessed with, or are thankful for.  Switch your mental focus to the good, not the bad.  This is called “benefit finding.”
  • Lastly, ask yourself: “Is what I am doing helping me, or hindering me?” For example, if you have gone through a divorce or heartbreak, it is easy to count all the things you will be missing out on.  You would say to yourself things like: “I will never get to see his/her dog again; we won’t be going on that trip to Hawaii; look at all our pictures together, we won’t be…. etc. etc.”   When you take action during your time of suffering, ask yourself, “are the actions I am engaged in, helping me? Or hindering me?”  A good way not to “fool” yourself is to look at the outcome of your action, e. g. is your action causing you to cry, or be joyful, are you happy or sad?  If the answer is negative, then you are hindering yourself.

The fact is adversity happens to all of us.  Instagram, Facebook, and social media are NOT reality, life is not butterflies and rainbows all of the time. Life is messy and difficult.  Being resilient means understanding that you are not being singled out when tragedy strikes.  It means that you are normal and experiencing life just like everyone else.  Keeping this mind frame will help you navigate your troubled waters and know that good times are just around the corner.  My moto: “This too, shall pass.”

For more see: “The three secrets of resilient people.” by Lucy Hone, Ph.D. and author– TedX Talk

How to Handle Holidays in a Divorce

5 years old boy sits in front of the fireplace and is sad with Christmas gifts.

By Rayna Brachmann, Esq.

For lots of parents, while many things about divorce are extremely difficult, one of the most heart wrenching is the thought of spending holidays apart from their children.  There is no way around it, being away from children on the holidays can be heartbreaking.  Unfortunately, for most people going through a divorce, it is a reality.  While some lucky families are able to reach a place where they share holidays together with their children, the majority of divorced families divide the holidays and the children transition between parents’ homes.

There is no one “right” way to design a holiday schedule.  What works for some families will not work for others.  Some families prefer to exchange children on major holidays so that children spend time with both parents on the holiday.  Other families agree to alternate holidays so that one parent has Thanksgiving while the other has Christmas, with the holidays flipped the following year.

Many parents cannot abide the idea of not seeing their children on Christmas and agree that one parent will have Christmas Eve until late that evening, with the other parent having the children from late on Christmas Eve and waking up on Christmas morning in that parent’s home.  Some families add another exchange in the afternoon on Christmas Day for Christmas dinner.  While parents are free to agree on a schedule like this, as a family lawyer, I don’t recommend a holiday schedule structured in this way.  First, multiple exchanges in a short time period are difficult for children, and place stress on everyone during an already stressful period of time.  Children of divorce often reflect that this type of schedule puts them in a position where they cannot relax and enjoy Christmas with one parent because they feel (real or perceived) pressure to hurry up and get to the other parent’s celebration.  Smaller children will often want to stay and play with the new toys and gifts they get at one parent’s home rather than packing up and heading to the other’s parent’s home.  This can cause unnecessary pressure and make difficult transitions more so, even though no parent intends this when they agree on this type of schedule.

An additional issue many parents don’t consider at the time of divorce is what happens in the future when one or the other parent has a new partner.  What if the new partner has family out of town?  Or likes to travel for the holiday?  A split Christmas schedule ensures that a divorced parent will never be able to take their children to Disneyland or another family celebration out of town unless they have an agreeable former spouse or give up their holiday with their children.

Clients always get to decide for themselves what holiday schedule works best for them.  However, I recommend that parents not split holidays and instead alternate major holidays.  So if Dad has Thanksgiving this year, then Mom gets Christmas and Christmas Eve.  In 2020, Mom has Thanksgiving and Dad has Christmas and Christmas Eve.

There is no magic to December 25th.  If children celebrate Christmas with one parent on the actual calendar day, that does not diminish their special holiday celebration with the other parent on December 28th.  I often tell clients children don’t generally know if one parent has an extra day or two of time with one parent here and there.  But they definitely do know if Mom and Dad are constantly battling about every minute of time the other parent has with the children.  They will pick up on conflict between parents far more than they will feel slighted by a second Christmas a few days after the calendar designated holiday.

5 Important Things to Do Before Informing Your Spouse You Want a Divorce

Busy woman trying to work while babysitting two kids

By: Melissa L. Exline, Esq.

The assumption is that you have fully evaluated your emotional state and you are sure, 100%, that you want a divorce.  If that is the case, and you know this is something you have on the horizon, it is better to take some steps before you actually have the very hard and realistic discussion about the fact that, yes, indeed, you are seeking a divorce.  These 5 things being done in advance can make a difference or prevent issues from cropping up in the divorce process:

1. Learn About the Ways to Get a Divorce:

You will want to know your options.  This requires you having an understanding about yourself and your soon-to-be-ex-spouse.  If you have the ability to get along, and you can agree that you don’t want to burn the marital estate down while trying to divorce (after all, that only makes lawyers more money and costs you money), then there are other ways.  This could include pre-litigation negotiation, mediation, or collaborative divorce to get you to a joint agreement before you even come close to the courthouse steps.  If, on the other hand, there is very little chance for amicable discussions, or a “grown up” way of handling things, then you may be forced into litigation in order to protect yourself.  The key here is doing some research online or attending a local workshop on divorce.

2. Know What You Have and What You Owe:

It comes up regularly – oh, that cash that was in the safe – it’s gone, and it has been gone for years (or so claims one spouse over the protests of the other).  Rather than relying on what you each think you know, go through the safe and have evidence of what is in there.  Take pictures, make copies of financial records (or download them all onto a thumb drive or other method of taking the information) and generally have an understanding of what is included in both the martial estate and the potential separate property claims of each side.  If you have debts, be aware of how extensive this is (i.e. tax debts, car payments, credit cards and 401(k) loans, to name just a few).  Make a detailed list and have the records to back this up for every asset and every debt for items in either party’s name and joint accounts.  Know which accounts are joint or not as well.  Indeed, a nice spreadsheet given to your lawyer is always a welcome organizational tool.

3. Think About What Custody Should Look Like:

First, be aware, in Nevada, the best parent is “both parents.” As such, sharing the custody 50/50 is the typical starting point unless there are significant issues.  Wanting more time, or even feeling like you have a decent case for more time, is often not enough.  There are a lot of sample schedules online to give you an idea on how to share your time with the children.  You must be ready for push back on your ideal choice and listen to the input of the other parent on why one schedule might not be as workable as you first thought.  Having a plan A and then be willing to go to plan B or even C, can make a world of difference.

4. Make a Budget:

Based on where you will be living, you need to make a plan on how much it will cost you to live.  This is extremely important and one of the things lawyers often spend time with clients going over.  If you have explored this in advance, it will save you money and time.  How much does your new house or apartment cost?  What is the deposit to get in?  Can you make it? Do you have enough for living there with your car payment, food expenses, insurance, utilities, phones, etc.?  Download a basic budget and have these numbers ready.  Bring this with you to your first meeting with your lawyer and have documents in your hands that back up the likely expenses you noted in your budget.

5. Consult an Experienced Family Law Attorney:

It helps to have a plan and discuss things that you think might come up after you inform your spouse that you want a divorce.  The attorney can make suggestions and go over things you find worrisome.  Moreover, the attorney can address things with you that you might have missed when doing steps 1-5 above.  Do research on your lawyer options and it cannot hurt to meet with more than one.  It can seem expensive but having a good fit with your personality is important in this process and rushing in with the first name suggested to you could be something that does not work for you down the road.  Overall, get good advice on your financial situation and custody options and explore your child support or alimony options.  Having information helps you make better decisions.

If you are looking at telling your spouse you want a divorce, don’t just jump right in and hope all the information gathering works out after-the-fact.  This is a big deal.  Your children’s lives and your financial well-being are at stake.  Take some time to make sure you are prepared before jumping head-first into the deep waters of divorce.

ABLE Accounts and Special Needs Children receiving child support after aging out.

Young Downs Syndrome Couple Baking In Kitchen At Home

By Travis Clark, Esq.

Parents who contend with the issues presented when a child has special needs, are Heroes.  Many parents and families who care for a sibling or child with special needs face a multitude of pitfalls, and legal traps.  This article seeks to shed light on the issue of child support which is ordered after the child reaches the age of 18.

Under Nevada Law, NRS 125B.110, parents of children with special needs may petition the court with jurisdiction over the child, for child support to continue past the date they reach the age of majority.

When a disabled child becomes an adult, he or she usually qualifies to apply for Social Security Disability Income (“SSDI”) and Medicaid.  These Federal Benefits are calculated to the individual based on their “income” or “resources” which must be less than $2,000 in a calendar year! 42 U.S.C. § 1382(a)(1)(B) and (a)(3)(B).  What counts as income or a resource is defined in 42 U.S.C. §§ 1382a and 1382b.  Interestingly, 1382b does not state what a resource is, it states what a resource is not.  It is not a model of clarity.

In the case where a parent or guardian moves for child support to extend past the age of 18, we have an issue where federal benefits may, or most likely will, be reduced based on the support obligation issued by a State court.

How do we fix this?  The first and most widely known remedy is a first person, special needs trust, that qualifies under 42 U.S.C. § 1396p(d)(4)(A); these trusts, at least in Washoe County, are usually drafted by the Guardianship Court, or an officer of the Court, and requires that the trust pay back Medicaid upon the death of the beneficiary of the trust.  With this conduit, child support can be paid to the trust and are not counted as a resource for the individual such that their federal benefits will be reduced.

The second, lesser known option is to open an ABLE account.  ABLE stands for Achieving a Better Life Experience.  These tax-advantaged savings accounts came into being with the 2014 ABLE Act.  They are still relatively new vehicles for the protection of resources for disabled individuals.  Relatively few practitioners know of their existence or utilize this viable tool.

ABLE accounts in Nevada can be researched at: ABLE Nevada, or https://savewithable.com/nv/home.html.  The benefit of these accounts is multifaceted in that they are relatively easy to set up, provide tax advantages and are easy to maintain.

Tax advantages include tax-deferred and tax-free status on investments, if they are used for qualified disability expenses.  Qualified expenses can be discussed with a local agent, or found on their website.   Non-qualifying expenses may be subject to taxes and penalties.

Accounts can be opened with as little as $25, but accounts have a cap of $100,000.00.  If the amount in the account exceeds $100,000.00, SSDI will be suspended until the amount is reduced.  Each individual is limited to one account.   Those who wish to contribute to the account may do so, however, contributions are limited to $15,000 annually in the aggregate, with some exceptions for earned income versus unearned income.

There are other fees which apply, however, the use of an ABLE account is an easier way for families to plan and assist their special needs children who reach adulthood.

If you or your family members are in such a circumstance, please consult a professional to assist you with working through the issues of child support as it extends past the age of majority.  Maximizing the Federal benefits, which are minimal each month, while providing additional resources for your loved one is essential to provide and maintain a quality life for those in need.

Co-Parenting From Separate Homes

I love you, dad! Handsome young man at home with his little cute girl. Happy Father's Day!

By Rayna Brachmann, Esq.

Every parent going through a divorce worries about the impact it will have on their children.  And with good reason.  Divorce is difficult for everyone in the family, and for the children of divorce, they are without control and the impact of the changing family dynamics can be magnified as a consequence.  Every parent going through a divorce wishes to do what they can to minimize the impact and disruption on their children.  Unfortunately, many parents, despite their best intentions, simply are unable to act consistently in their children’s best interests.  Particularly when the divorce is ongoing and the dynamic between parents is negative.

One of the best things divorcing parents can do is work as hard as humanly possible to remain on the same page with the other parent, despite the divorce.  When parents are able to present a united front to their children on parenting issues, despite their interpersonal differences, the impacts of divorce on their children are lessened.   Not eliminated, but less damaging to their children.  And because parents love their children enormously, this is a gift of love a divorcing parent can give to their children.

Concrete examples include reinforcing discipline in both homes.  If a child loses a privilege in one home, the other parent should also restrict that privilege.  If a child has lost the use of his phone in mom’s house for two weeks, the two weeks should be continuous, and dad should also restrict phone access on his custodial time.  If dad has decided that a new driver is restricted from accessing the car because the child broke driving safety rules, mom should also ensure the child doesn’t drive during mom’s custodial time.  This type of united front among parents with their children will make a child’s transition between homes easier and less jarring and will also prevent a child from seeing one parent as the hero while the other is the enforcer.  This type of co-parenting requires a concerted, ongoing effort by both parents, which can be challenging.  But it pays dividends over time and children will have less opportunity to play parents or households against one another.  This is of particular significance as children becomes teenagers and test boundaries more as they try to define themselves in opposition to their parents.  If parents remain on the same team as far as parenting goes, the children will be less likely to have opportunities to exploit the differences between their parents and will be better adjusted despite their parents’ divorce.

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