A Dash on Dependency (Exemptions)

I get many inquiries with this question: Who may claim the dependency exemption for income tax filings? The law is simple, but applying it can be complicated. Just like life itself, huh.

Here is the Colorado statute:

Dependency exemptions. Unless otherwise agreed upon by the parties, the court shall allocate the right to claim dependent children for income tax purposes between the parties. These rights shall be allocated between the parties in proportion to their contributions to the costs of raising the children. A parent shall not be entitled to claim a child as a dependent if he or she has not paid all court-ordered child support for that tax year or if claiming the child as a dependent would not result in any tax benefit.

There you have it.

You do need to make sure the correct forms are filed with the IRS. I have a case right now where the financial gain of receiving the exemption is nearly equal to the entire year of child support payments owed.

Spring break - no post next week.

Custody and the News

It was reported that James Cook, a dad who advocated for father's rights, recently passed away. Listen to a story about him here, where he is referred to as the father of joint custody, courtesy of National Public Radio. (The audio link runs 3:22 minutes.)

So, what about Colorado law? The first thing to know is that the law that applies in divorce cases no longer uses the term "custody." Custody has been replaced by two terms, representing distinct concepts, "allocation of parental responsibilities" and "parenting time." The new terms reflect the two concepts of law that previously constituted the one term "custody."

Allocation of parental responsibilities is decision-making on major issues for the child. That is, who will have the legal right to make major decisions. Will they be shared, or not. Major decisions typically are those regarding health, education, religion, and others.

Parenting time is simply a visitation schedule, and with whom the child will be, and when. It, of course, encompasses the idea of where the child will primarily reside, and when the non-primary residential parent will spend time with the child. These are the two issues, and terms, that will be used and applied in your divorce or custody case.

Colorado law has indeed changed over the years, thanks to James Cook and others, and is now more receptive to each parent sharing decision-making responsibility, and sharing parenting time with their children. In other words, joint custody.

Trial Judges Blink Too

How many of you have read Blink: The Power of Thinking Without Thinking by Malcolm Gladwell? This was a number one bestseller. If you didn't read it, you likely heard about it through the large amount of attention from the popular media.

Other than the fact that the ideas in Gladwell's book are interesting and thought-provoking, why mention it here among the ocean of other comments about it? Well, Judges are decision makers, and judges are people, but there is another reason. There is a scholarly article here that actually explores intuition (Gladwell), and the deliberative process, as applied to trial judge's decisions. Relevant for us, because in Colorado a trail judge will decide your family law case.

Consider this:

"Collectively, these results suggest that judges tended to favor intuitive rather than deliberative faculties. First, the judges had trouble with the CRT (the test), even though the CRT questions are not difficult. Most of the judges answered most of the questions wrong. Second, when judges erred, they generally chose the intuitive answer. Third, those judges who selected the intuitive (wrong) answer indicated the problem was easier than those judges who suppressed their intuition and provided a deliberative answer (and got it right.)"

From C. Guthrie, J. Rachlinski, A. Wistrich, "Blinking on the Bench: How Judges Decide Cases." Cornell Law Review. (Link provided above.)

(Take a look at the test questions yourself, and you will see they only required a moment to see that the most obvious, knee-jerk, superficial answer was wrong, and to then figure out the correct answer.)

This is a great topic, and I'm big-time glossing over the quite interesting debate regarding intuition versus deliberation. Also, what about the effect of fatigue, competence, personal problems, time limitations, administrative pressure, etc., that can also affect a judge? The truth is wrong decisions often are made despite the facts and have important real world consequences. Of course, no one wants to make a mistake but not wanting to doesn't change anything.

A couple posts ago, I mentioned the number of new filings in Douglas County, and encouraged you to consider the caseload of each individual judge. Safe to say trial involves significant risks, huh.

There is a relationship between Gladwell, a judge's caseload, and the article's study results - maybe stronger than some of us might have otherwise thought. If you dig around, every family lawyer would have a story to tell that reveals this relationship - I have a few.

(I personally made a snap judgment about Gladwell's book and consequently have not read it yet. I'm reconsidering.) ; -)

The Supremes, Guns, and Domestic Relations

You may have noticed the Supreme Court in the news last week for its ruling in United States v. Hayes - the briefs, oral argument, Justice Ginsberg's opinion, etc. are at this link. I reviewed this decision and then read some of the news reports and commentary. Wow, any law that involves firearms really gets the commentators fired up. The case involved application of a federal law that, among other things, bans possession of a firearm if a person commits a domestic violence misdemeanor.

In Colorado, the whole issue of banning firearms and domestic violence is a little confusing because the federal law and Colorado state law are different. They overlap, and both apply to persons in Colorado.

For all our sakes, let's skip the legal gumbo, mumbo-jumbo, and jambalaya. Just know this, the Colorado law that bans firearms has a broad reach, and can prohibit the possession, transportation, and ownership of firearms in many circumstances - including when there is no criminal charge filed. In a divorce, the most relevant and common incident where this law reaches is a Civil Protection Order. This type of protection order can be issued when a spouse, or ex-spouse, goes to court, asks for one, and provides good reason to obtain it. Don't need no police. Don't need no prosecutor. If a protection order is issued, after the restrained party has had an opportunity to present their side, the court can impose any condition it feels appropriate to help protect the safety of the alleged victim, including banning ownership and possession of firearms. (Such a civil order may, and can, meet the requirements of the federal law known as the "Brady Handgun Violence Prevention Act. Violating the order could be a felony under Federal Law.)

A Civil Protection Order issued in a case can have a substantial effect on a divorce case, well beyond the possession of firearms referred to in this note. But you know that.