October 17, 2014

Colorado Child Support and Self-Employed Individuals

Pursuant to C.R.S. 14-10-115, the statutory section regarding establishment of Colorado child support, the primary financial factor leading to a calculation of support is a litigant's incomes. As discussed in prior postings, there are basic figures, such as income, number of children, and number of overnight visits per year the payor has with the children, that go into generation of a monthly child support amount. Child support is generally easily calculated when there are two people to the equation, both of whom have traditional jobs with readily discernable income. However, when one person is a business owner, or self employed, the analysis of what income figure should be used for that person becomes more complex. Likewise, challenges can arise related to collection of child support from that self employed person. This posting will address both issues as may arise in the legal arena.

As Denver area child support attorneys, we have seen almost any scenario imaginable related to child support. The one scenario requiring perhaps the most scrutiny relates to ascertaining income for a self employed person. This task can arise not only related to the other party's income, but also our own clients. As a starting point, C.R.S. 14-10-115(a)(1) sets forth definitions of what is or is not income for child support purposes. Subsection (D) states, "Payments received as an independent contractor for labor or services, which payments must be considered income from self-employment." Subsection (O) states, "Any money drawn by a self-employed individual for personal use that are deducted as a business expense, which money must be considered income from self employment." Subsection (W) states, "Income from general partnerships, limited partnerships, closely held corporations, or limited liability companies...." In essence, the funds one takes for personal use under any of these scenarios is considered income for child support calculation purposes.

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October 8, 2014

COLORADO DIVORCE AND SAME SEX MARRIAGE


On October 6, 2014, the United States Supreme Court declined to hear cases coming from various US Circuit Courts of Appeal regarding the issue of same sex marriage and rulings finding the bans of various states on same sex marriages to be unconstitutional. One (or more) of those cases came from the 10th Circuit Court of Appeals, located in the heart of our booming metropolis, that being Denver.

From a legal analysis standpoint, by declining to hear or weigh in on those case, the US Supreme Court effectively let stand the decisions that the various state laws at issue in the Courts of Appeals cases were null and void. Colorado, including, of course Denver, is part of the 10th Circuit, which also includes Kansas, Wyoming, Oklahoma, New Mexico, and Utah. The specific rulings which strike down the laws prohibiting or curtailing same sex marriages are applicable throughout the circuit.

The intent of this post is not to weigh in on the hot button topic of same sex marriage. We are lawyers, not politicians or political pundits. Any opinion will offend one side or other of the debate. We don't want to offend anyone. Whether same sex marriage if viewed by some as "right" and some as "wrong," the legal fact is that the greenlight has been given for counties throughout the state to start authorizing same sex marriage, or rather not blocking such.

As same sex marriages evolve in Colorado, so shall same sex divorces. With the 2013 passing of the Civil Union bill in Colorado, Denver area family law attorneys have already seen changes to the domestic relations law legal landscape. Contrary to what some might have anticipated, those changes have not had a significant impact on the courts or us, as attorneys. In the few months since the Bill became law, we have talked to clients, or potential clients, regarding dissolution of civil unions, and have litigated civil union dissolutions. Realistically, the process for dissolving a civil union is almost identical to dissolving a marriage. There is no reason to believe that dissolution of a same sex marriage will be any different.

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September 15, 2014

Colorado Custody and Relocation With Children (Part 2)

Part 1 of this posting, from June 2014, focused on the basics of relocation with children in a Colorado custody case, including analysis(es) related to situations which might arise either prior to a case being filed, or while a case is pending, as well as pre-final orders requests to move from Colorado with children, covered under a court case called Spahmer. Though various portions of statute and case law deal with the pre-final orders aspects of custody and relocation, there is a completely different legal standard for seeking permission to leave Colorado with the children after final orders have entered in a divorce or custody case.

Once final, or "permanent" orders have entered, there are two scenarios in which relocation with children could become an issue. Prior to getting into an analysis of the law related to properly requesting a change in location, I will briefly address a situation we, as Denver custody attorneys, see from time to time. Though not common, there are instances in which one party to a custody case decides to leave Colorado, or the Denver metropolitan area, with the children and without seeking permission of the court or the other party. If there are parenting time orders in place, the expectation of any court is that they will be followed. If one party decides to just leave Denver, and abscond with the children without permission, the law affords various remedies to the other party. Of course any family law attorney should advise his or her clients that just leaving with the children can have tragic legal consequences.

When on party leave Colorado with the children such that he denies the other party his or her visitation, he or she becomes subject to relief under C.R.S. 14-10-129.5, which relates to enforcement of parenting time orders. Most certainly, he or she will ultimately lose actual physical custody of the children for leaving the state without permission. He or she will likely also be subject to contempt of court proceedings, which can include jail. C.R.S. 14-10-129.5 also contains contempt like provisions. Beyond these avenues for relief, the person wrongly leaving, when caught, can expect to have is or her visitation taken away and will likely have to endure supervised visitation for quite some time until he or she proves they are no longer a flight risk. The arm of the law within the United States is long. Should one elect to flee to another state, once found, it is likely the other side with take steps under the Uniform Child Abduction Prevention Act to get the children returned to Colorado. Finally, violating Colorado custody orders and fleeing the state, or area, with the children is technically a felony and can lead to serious criminal consequences, including potentially prison. Colorado family law courts do not like to see their orders regarding visitation violated and the penalties can be harsh. Of course, the "relocation", per se, discussed in this paragraph is the exception and the wrong way to go about things.

When a party determines that he or she wishes to move from Colorado, with the children, the proper route to go is to seek relief from the court pursuant to C.R.S. 14-10-129, the parenting time modification statute. C.R.S. 14-10-129(2)(c) specifically addresses the issues centered around a parent's desire to relocate with the children, including procedures, legal standards in terms of what the court is looking for in terms of information to make a determination, etc. Relocation cases are generally also viewed under a case called Ciesluk, 113 P.3d 135 (Colo. 2005), in which the court determined that a court should look at the best interest factors set forth in C.R.S. 14-10-124, as well as those enumerated in (2)(c). Unlike a Spahmer analysis, the reason for the move under Ciesluk matters more significantly.

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August 25, 2014

Recent Colorado Appellate Case Discusses Arbitration in the Divorce Context

Arbitration has become more and more popular in the last few years, as litigants opt to resolve their issues outside of the formal courtroom and in the more informal setting of arbitration. Although not as formal as a courtroom, the arbitrator's decision on the legal issues in front of him or her is generally legally binding. In fact, in some cases the reviewability of an arbitrator's decision is extremely limited.

broken-heart-1321733-m.jpgAlso, there are a few important limitations on an arbitrator's authority to decide legal issues. The Colorado Court of Appeals recently decided a case that required the Court explain how arbitration fits into the family law context, specifically divorce.

The Facts

The facts of the case are quite simple, actually. Husband and Wife got divorced and, as a part of the divorce, Husband was to pay Wife $4 million over the course of several years. The payments were structured so that Husband would pay Wife a monthly amount for several years and then, after all marital property had been liquidated, Husband would pay Wife the remaining amount in a lump sum. The final part of the deal was that Husband was entitled to some credits, according to expenses he incurred while selling the property.

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August 2, 2014

Modification of Spousal Support Orders in Colorado Divorces

In many Colorado divorce proceedings, the court will determine that one spouse must provide some form of support to another spouse. Often, this is because one spouse put his or her career or education on hold to care for the marital home, or because the income potential of one spouse is significantly higher than the other spouse.

family-with-baby-4-1046983-m.jpgHowever, it is important to know that even when a Colorado family court judge hands down a final order in a divorce proceeding, that order is not necessarily permanent. Almost all orders can be modified under certain circumstances, when required conditions are met. This is also true of spousal support orders.

Modifying a Spousal Support Order in Colorado

Spousal support orders, or spousal maintenance orders, can be modified in some instances. However, there is no hard and fast rule for when modification is appropriate. Instead, it is left up to the courts to determine when a modification of a spousal maintenance order is proper.

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July 23, 2014

Child Custody Laws for Same-Sex Couples in Colorado are Far From Certain

One of the most important aspects of any divorce proceeding is who is going to retain custody of the children. For opposite-sex Colorado divorces, there are rules that have been applied and defined over the years that create settled expectations. However, as more and more same-sex couples get legally married in other states, there is a question as to how Colorado law will treat these relationships.

i-love-my-child-1106732-m.jpgAs a starting point, the State of Colorado does not consider same-sex marriages entered into in other states to be legally binding in Colorado. So if a same-sex couple who was married outside the state splits up while in Colorado, Colorado law will apply and will not recognize their marriage.

This can lead to situations where, if the parents had been of the opposite sex, the law would be settled. However, since the couple is a same-sex couple, the law is unsettled. This creates a difficult situation for same-sex couples because there is no way to know what to expect when splitting up.

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June 23, 2014

What Constitutes Marital Property in Colorado?

When a marriage comes to an end, there must be a division of the assets that have been accumulated during the marriage. Generally speaking, states take one of two approaches when dealing with the division of marital assets. The more common of the approaches, and the approach taken by the state of Colorado, is "equitable distribution."

tracks-in-field-1435694-m.jpgThe concept of equitable distribution is exactly what it sounds like. The property in a marriage is not divided equally between the parties but in a manner that is fair, given a number of different factors. Before a court gets to the division of marital assets, however, the court must first determine what constitutes a marital asset and what is the individual property of the parties.

Marital Assets in Colorado

In Colorado, the general rule is that property owned by either party before entering into the marriage remains the individual property of that party. All jointly held property is marital property. In addition, even an increase of value in individual property during the marriage can be considered marital property, depending on the circumstances.

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June 9, 2014

Colorado Custody And Relocation With Children (Part 1)

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Though we can all look back to a time when people were born and raised in one town or one state, the reality is that today's society is both national and transient in nature. People work for national companies, with multiple locations. Job transfers to new areas of the country are a fact of modern day employment and the 21st century economy. People no longer stay put in one location. Aside from employment situations, people with children may have other reasons to move from Colorado, such as acceptance into an out of state university, military reassignment, or a desire to just be closer to a family support network somewhere else. When families or couples are together or intact, these moves are just part of life and everyone jointly rolls with the changes to come. However, things can be entirely different, and moving can be much more difficult, for people either going through an initial Colorado custody or divorce case, or those wanting to move at some point after final orders are entered. As a basic premise, one must keep in mind that obtaining court permission to move pre-decree or pre-final orders can be a much easier proposition than seeking to move at some point in the future after the initial phase of a case is done.

Prior to the entry of final orders in a Colorado custody case, or divorce with children, both parents have equal rights to children and there is no specific law, per se, that prohibits one party from just packing up and moving with the children. However, once a family law case involving children is filed, Colorado statute, either Colorado Revised Statutes section 14-10-107 or 14-10-123, precludes people from leaving the state with the children while the case is pending, absent agreement from the other party or an order of the court. If a case has not yet been filed and one parent moves from Colorado with the children, there is no statutory violation under sections 107 or 123. That being said, our courts, depending on the circumstances, have the power to order the party who left with the children prior to a case being filed to return them to Colorado. This might occur in situations in which a party just left Colorado with the children, absent an agreement or notice to the other party, and the other party timely files an emergency motion requesting their return. In such instances, the court may look at how long the party and children have been gone prior to filing, whether the other party knew of their whereabouts, or other logical factors tying into whether it is in the children's best interest to come back.

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May 21, 2014

DENVER DIVORCE AND "DISCOVERY" (Part 2)

Earlier this month, we posted the first part of this article, setting for the basics of what Denver area family law attorneys call "discovery." As previously indicated, discovery is generally issued in divorce, custody, or child support cases when one side believes more information is needed. This can include a heightened request for documents, generally financial in nature, or requests for questions to be answered, whether of a child related or financial nature. Discovery in a family law case will generally entail interrogatories (questions to be answered) or requests for production of documents. Your attorney can assist you with determining whether the specific facts and circumstances of your case warrant, or necessitate, the issuance of discovery.

Some examples of when discovery might be needed would be in a situation in which the wife has handled all of the family finances or, perhaps owns a business. In such an instance the husband might be in the proverbial dark as relates to the family finances, past or present, and may be in need of further information for purposes of assessing a divorce settlement or preparing for court. Interrogatories may be a useful tool for purposes of ascertaining the other side's position as relates to custody issues, or perhaps for purposes of boxing them into specific written answers which can be used in court. As indicated in the prior posting on this subject, when one side issues formal discovery, it is extremely likely that the other side will do the same. Set forth below are some common rules or pointers for both issuing discovery, as well as responding to it.

1. Pursuant to the Colorado Rules of Civil Procedure, discovery must be issued 63 days before a hearing. Generally, this would be the final divorce or custody hearing. In some instances, there may be interim hearings set, such as a temporary orders hearing. Discovery can be issued less than 63 days before these interim hearings, but one must be aware of that 63rd day prior to the final disposition of the case. Though courts can sometimes be flexible or lenient with deadlines in a family law case, the technical rule would be that discovery issued within that 63 days is issued improperly. When faced with improperly issued discovery, one should look at filing an objection to the request within the time frame allotted.

2. Discovery may not be issued prior to the initial status conference in any case. Pursuant to C.R.C.P. Rule 16.2, parties must first attend the mandatory touch base conference with the court prior to issuing discovery. Some counties may even issue case management orders indicating that permission must be sought from the court prior to issuing discovery. Parties should be aware of the provisions set forth in their case management orders. From time to time, we do even see attorneys issuing discovery early, or late. In those instances, and objection is also appropriate.

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May 5, 2014

COLORADO DIVORCE AND FILING FOR BANKRUPTCY (PART 2)

wedding-rings---african-american-1384052-m.jpgThe first part of this discussion on bankruptcy gave an overview of the bankruptcy process and how it applied to couples who were still married. The second part will discuss the impact of bankruptcy when a couple separates or divorces.

What Happens If a Couple Separates?

In some respects, if a couple separates but remains married, the effect of one spouse filing for bankruptcy is not much different than if they lived together. Assuming the debtor spouse filed individually, the nonfiling spouse might find that certain marital property was considered part of the bankruptcy estate. While the debtor spouse could wipe away a substantial portion of his or her debts, the nonfiling spouse would still be responsible for his or her separate debts.

The above may depend upon how long the couple has been living apart. If the debtor spouse waits several years after the separation to file for bankruptcy, it is more likely that the bankruptcy court and trustee will view the nonfiling spouse's property as separate property, not marital property that is part of the bankruptcy estate.

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April 25, 2014

COLORADO DIVORCE AND FILING FOR BANKRUPTCY (PART 1)

wedding-ring-1415307-m.jpgWhen Denver couples divorce, few anticipate that one of the parties will file for bankruptcy, or that the bankruptcy could have such an impact on both of their lives. That is because there is a lot of confusion about bankruptcy in general: who applies for bankruptcy, what it involves, and its long-term impact.

This blog will look at bankruptcy as it relates to Denver couples who separate and divorce in two parts. The first part will discuss bankruptcy in general, and what happens when one member of a still-married couple files for bankruptcy. The second part will discuss potential problems a couple encounters when they separate and one party files for bankruptcy, or when one party files during or after divorce proceedings.

What Is Bankruptcy?

When individuals or couples file for bankruptcy, it is usually because they are looking to clear away debt. Their house might be "underwater" -- meaning it is worth less than they owe on their mortgage -- and they may have several large debts, such as for credit cards. In these situations, creditors will act aggressively to either pursue the debt or, if applicable, to foreclose or repossess the property. A family's lives might be filled with threatening phone calls and letters. People in this situation typically file for bankruptcy because they have no other choice: they cannot make a deal with the credit card companies or afford to make their current mortgage payments.

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April 14, 2014

DENVER DIVORCE AND "DISCOVERY" (Part 1)

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In any Denver area divorce or custody case, each side is going to be required to complete and exchange regular financial disclosures pursuant to the Colorado Rules of Civil Procedure, Rule 16.2. Normal financial disclosures will include drafting what is called a "Sworn Financial Statement," which is a document essentially setting forth a party's income, assets, debts, and expenses. In addition to the Sworn Financial Statement, parties will also be required to provide various other documents, such as the last 3 year's tax returns, last 3 month's pay stubs, and current bank, credit card, insurance, retirement, and various other financial statements. The purpose behind this exchange to make sure that each party has the financial information he or she needs to make assessements as to various financial issues, whether income related to child support or alimony, or what property there is in a divorce case and how it will be divided.

The normal C.R.C.P. Rule 16.2 financial disclosures tell part of the picture, but sometimes don't give enough information for people to make informed decisions or prepare adequately for a court hearing. As such, the Rules of Civil Procedure also authorize various other mechanisms for gathering information from the other party. Specifically, there are various rules which allow depositions, requests for admissions or inspection, interrogatories, and requests for production of documents. In general, this body of requests that can be made is called "discovery." As Denver area divorce and family law attorneys we generally see the "discovery" issued, or received, in the form of the the latter two: interrogatories and requests for production of documents. In theory, discovery should be issued in instances when the financial disclosures just don't tell enough, or more information is sought, such as might relate to the children or job search efforts. Other instances in which our attorneys might issue discovery might be when the other party is self employed or owns an interest in a business, or perhaps has been the one who primarily, or solely, dealt with the parties' finances.

Discovery can be a useful tool in both a divorce or custody case. As a general rule of thumb, and keeping client funds and costs in mind, discovery should only be issued when needed. Issuing and responding to discovery bring certain additional costs and challenges. Sadly, there are attorneys out there who issue it "just because" or as a matter of course. In these instances, there is not much one can do, as each party has the right to request more information. Inevitably, when one party issues discovery, the other side will almost certainly return the favor. Though this might sound childish, the legal world can be very tit-for-tat.

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March 28, 2014

COLORADO CHILD SUPPORT AND DAY CARE EXPENSES

Over the course of the last few decades, it has become more common place for both mothers and fathers, whether married or just parents of a child or children, to work. In fact, Colorado statute related to child support presupposes that both parents work and creates a duty, absent an exception, for each parent to be employed full time to the best of his or her abilities. In any two-income, intact household with little children, the reality is that some sort of child care will be needed for both parties to work, unless of course they work opposite schedules and never see each other. When a family unit splits up and a divorce or custody case is filed, the need for day care doesn't go away. Fortunately, C.R.S. 14-10-115, the main statutory section related to Colorado child support, sets forth certain provisions regarding day care expenses and how such will be paid among the parties.

C.R.S. 14-10-115(9) indicates that the cost of work related, education related, and job search related child care incurred for a child of the case shall be split among the parties proportionate to their gross incomes. Thus, if there is $1000 per month incurred for day care, and mother makes $100,000 per year and father makes $50,000 per year, statute would have mother paying approximately two-thirds of the monthly child care obligation and father paying approximately one-third. Statute does not make specific mention as to which party is paying the actual cost directly to the child care provider, nor preclude both parties from contributing directly to the provider. Likewise, statute does not necessarily indicate that the parties even have to use the same daycare. It just indicates that costs shall be split proportionate to adjusted gross incomes of the parties.

For purposes of minimize conflict related to payment of or reimbursement for child care, C.R.S. 14-10-115(9) also indicates that the child care costs incurred for any of the three endeavors shall be "added to the basic support obligation." This is generally accomplished by adding the monthly daycare figure into the child support worksheet, or software used for calculating the monthly child support amount. The software used by Colorado family law attorneys will take the monthly child care amount, or amounts, incurred, and apportion it proportionately to the parties' incomes listed on the child support worksheet. The actual monthly child support figure shall then go up or down according to whom is paying what amount for daycare. For example, let's say that a monthly child support obligation of $500 exisits with mother paying father. Let's say that no daycare has been factored in to arrive at that calculation. Due to changes in the parties' schedules, a need for work related child care arises to the tune of $1000 per month. Using the same family set forth in the paragraph above, lets say father, making $50,000 per year, or 1/3 of the combined income, is the one who pays the actual funds to the provider. In this instance, the approximately $667 per month of the day care costs which are allocatable to mother would be added to the $500 child support figure and mother would then be required to pay approximately $1167 per month in child support. Conversely, if mother were paying the actual child care to the provider, the child support owed to father should, in theory, go down by roughly $333 per month. These are approximate figures and do not factor in various adjustments or an adjustment pursuant to statute based on the federal income tax credit for child support.

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March 9, 2014

Will Amendment 64 Affect Colorado Child Custody Cases?

flowering-cannabis-plants---hydroponics-indoors-1431036-m.jpgAs most Colorado residents know, recreational marijuana use was approved via Amendment 64 last fall. The status of marijuana in noncriminal matters, however, remains ambiguous. How will Amendment 64 be implemented? A task force was set up to recommend positions that lawmakers should take about marijuana regulation. The force did not offer a recommendation about how marijuana use should be handled in a child custody case. This could prove problematic in certain cases, but for the most part child custody cases will continue to function as before.

If a parent is not participating wisely in parenting a child, his or her poor decisions will affect the custody arrangements made by the court irrespective of whether marijuana use has influenced those decisions. For example, if a father is too busy with a grow operation and getting high to make sure a child is getting to school or taking his or her medications, his parenting decisions will be scrutinized irrespective of marijuana's legality.

Medicinal marijuana has actually been an issue in family law cases for several years. Many parents have reported another parent's marijuana use to the court in order to get the second parent in trouble. It seems clear that many people do feel marijuana use by a parent is more of a problem than drinking a glass of wine or smoking a cigarette, even though marijuana is now legal. Denver Judge Karen Ashby has noted that medical marijuana has been treated no differently over time than other substances. A parent who smokes a joint after dinner may not be treated differently than a parent who drinks a glass of wine over dinner. Both marijuana and alcohol are likely to be considered on a case-by-case basis now that both are legal substances.

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February 16, 2014

Colorado Divorce and Income Tax Ramifications

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A Colorado divorce case can have many facets to it, whether financial or child related. The financial aspects of a divorce case can include property division, alimony (properly termed "maintenance"), and child support. With those financial aspects come various nuances and intricacies of which your expercienced Colorado family law attorney should be aware. One category of nuances tied into the financial aspects of a divorce case relates to taxes.

Most Denver area divorce attorneys have a basic understanding or knowledge of tax implications tied into a divorce case. Because the Internal Revenue Code is a volumious and shifting literary compilation, most family law attorneys are hesitant to give concrete tax "advice" to their clients. That does not mean that we cannot import general tax information or knowledge to our clients with the caveat of, "you should follow up with an accountant to be certain." In essence, family law attorneys are not tax experts. Despite the lack of expertise as relates to taxes, set forth below are some of the basic topics in which tax issues can arise in a Colorado divorce case and basic information related to such.

MAINTENANCE:

"Maintenance" is the proper term for what people might often call alimony in Colorado. Alimony is essentially spousal support. Colorado statute and case law indicate that depending upon financial circumstances, one spouse may have a duty to financially support the other, for a certain period of time, during and after a divorce case. The issue of taxes arises in an alimoy situation in that the Internal Revenue Code allows the party paying alimony to deduct the payments he or she makes from his or her income on the tax return. This can include temporary maintenance paid while a divorce case is pending, maintenance paid after the divorce is done, or sometimes "unallocated" support that is not necessarily defined, so long as that "unallocated" support is not classified as child support. When one is in an alimony paying situation, it becomes important to speak with a learned accountant to find out specifically your rights, obligations, and what documentation you may need, from an IRS stand point, to be able to claim the deduction. An accountant can also strategize with you in terms of making sure you handle your tax affairs in proper fashion as relates to alimony. The tax code is tricky and subtle deviations in how you pay or what you pay can have an effect. For example, the IRS may allow you to deduct the $2000 in alimony you pay on a monthly or "periodic" basis, but might disallow the deduction if you pre-pay for the year in a lump sum. The primary point is that as an alimony payor, you need to be informed as to the tax benefits and consequences tied into your court orders.

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