Archive for October, 2008

What is a two-parent adoption?

Two Parent Adoption Adoption Law

What is a two-parent adoption?

A child adopted by an unmarried couple is a two-parent adoption. This is the type of adoption often used by lesbian and gay couples in the handful of states that grant two-parent adoptions.

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How long must child support be paid?

How long must child support be paid?

The duration of this responsibility depends upon state law. All states require both parents to be financially responsible for their child during the child’s minority, generally through the child’s high school years. A few states have extended the time for financial responsibility beyond the minority of the child. Child support can be terminated in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting.

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What is a second-parent adoption?

Second Parent Adoption Adoption Law

What is a second-parent adoption?

A child adopted by the unmarried partner of the child’s legal parent is a second-parent adoption. This route has been successfully used (where permitted by state law) by lesbians and gay men.

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How do child care costs get factored in?

How do child care costs get factored in?

The cost of child care can likewise be apportioned between the parents. Because child care costs are incurred so that a parent is able to earn income, it means that a greater amount of combined income is available for the support of the child. Since both parents benefit from the cost of child care, this cost is divided between the parents (usually 50% each). The parent who actually pays the child care expense receives payment from the other parent.

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What is ‘equitable adoption’ or ‘adoption by estoppel?’

Equitable Adoption Estoppel Adoption Law

What is ‘equitable adoption’ or ‘adoption by estoppel?’

Equitable adoption (also called putative or constructive adoption) occurs in the situation where a parent makes certain promises or acts in a certain manner so as to create a contract between the parent and child. Equitable adoption occurs without a formal legal procedure, in other words, a parent can say or do certain things that result in the adoption of another person as his/her child even though there is no court order establishing the adoption. For example, a parent could take a minor into his/her home, and act as if s/he is the parent of the child for many years, all without ever going to court to formalize this arrangement. In such a situation there is no court order which formally states that the rights and obligations of the natural parents have been terminated and that the adoptive parents must assume these obligations and rights. Instead of being a matter of law, the principles of equity hold this parent as if s/he had formally adopted the child.

Adoption by Estoppels happens when a parent tries to deny equitable adoption. If a parent has taken a child into his/her home, and acted as the parent of that child for a number of years, even without a formal adoption procedure, that parent is prevented from then denying parentage by adoption by estoppels. Because the child was not legally adopted, s/he cannot seek action in court; however, adoption by estoppels is a remedy that is available to the child, to claim adoption by the parent.

The legal doctrines of equitable adoption and adoption by estoppels typically arise when a person who took care of a minor child for many years dies. The decedent (person who has died) may have died without a Will and the child presents a claim to all or part of the estate based on one of these doctrines. If the decedent died with a Will and the child was not mentioned in the Will, the child may still present a claim for a portion of the parent’s estate on the basis of being an omitted or pretermitted child.

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What other items do formulas consider?

What other items do formulas consider?

Time Spent With Child. Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula. Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the “custodial parent” (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the “non-custodial parent” (the parent without primary physical custody). Since the custodial parent spends more of his/her income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other.

Number of Children. Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common.

Special Circumstances. In addition, special circumstances may require a greater amount of child support to be paid. Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid.

Since there are a number of factors that go into the formula to determine guideline child support, some states have approved computer programs designed specifically for determining the amount of child support. Use of a computer program to determine the amount of child support is a very objective method for determining child support.

Proper analysis of all the factors can have dramatic effect upon the determination of the guideline child support amount. Depending upon the method that is used in a given state, seeking a lawyer’s professional advice can be well worth the cost.

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What is step-parent adoption?

Step Parent Adoption Adoption Law

What is step-parent adoption?

When a parent remarries after the death of a former spouse or after a divorce, the new spouse may desire to formally adopt the child or children of their current spouse. A step-parent may choose to formally adopt a spouse’s child from a prior relationship, but the natural parent must receive notice of the adoption proceeding. The natural parent must consent to the adoption or else must be determined “unfit” before a step-parent adoption will be finalized. A similar protocol applies when a child is born outside marriage, the birth parent later remarries, and the stepparent wants to adopt the child.

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How are support payments treated under federal income tax rules?

How are support payments treated under federal income tax rules?

Child support payments are typically not deductible from the income of the payer and are not included as taxable income to the supported spouse. Alimony or spousal support payments are tax deductible by the payer and taxable income to the supported spouse.

According to the Federal Internal Revenue Code, ” … any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payer spouse” is not considered alimony or a separate maintenance payment. Thus, such payments are a tax neutral event (they are non-taxable to the person receiving them and non-deductible to the person making them).

Federal Income Tax Regulations state:

“A payment is fixed as payable for the support of a child of the payer spouse if the divorce or separation instrument specifically designates some sum or portion (which sum or portion may fluctuate) as payable for the support of a child of the payer spouse. A payment will be treated as fixed … if the payment is reduced (a) on the happening of a contingency relating to a child of the payer, or (b) at a time which can clearly be associated with such contingency. … For this purpose, a contingency relates to a child of the payer if it depends on any event relating to that child, regardless of whether such event is certain or likely to occur. Events that relate to a child of the payer include the following: the child’s attaining a specified age or income level, dying, marrying, leaving school, leaving the spouse’s household, or gaining employment.”

Thus, under Federal income tax law, regardless of the label that is used, most child support payments are a tax neutral event, while most support payments provided to the other (former) spouse are deductible to the payer and included in the taxable income of the supported spouse.

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What is ‘adoption’ in a legal sense?

Legal Adoption Adoption Law

What is ‘adoption’ in a legal sense?

Adoption is the process through which the natural parents’ rights and obligations toward their children) are terminated, and the adoptive parents assume these rights and obligations. Once a child has been adopted, the natural or birth parents are no longer responsible for their child; the obligations that they have toward their child, likewise, cease to exist. It is as if the natural or birth parents become like any other third party with respect to the child. The adoptive parents become responsible for the child and all the obligations and rights between a parent and child are established between them.

Adoption is a process that is established by statutory law, and is treated in accordance with the laws established by the state in which the parent and child reside. The legal procedure by which a formal legal adoption occurs differs from state to state. An attorney will help you to determine the particular procedures of the state in which you live.

The primary obligation flowing from a parent to a minor child is to be responsible for his/her health, education and welfare. When a parent adopts a minor child, the parent must then provide for the needs of the child.

The primary right that a child obtains from a parent is the right of inheritance of the estate. Although this right of inheritance may be altered by a Will or Trust, or other disposition of property, in the event that a parent dies without a Will, the parent’s children are entitled to the estate (all the property that the parent owned as of the date of death). Generally, an adopted child has no rights to the estate of his or her biological parents.

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What about paying for college or private school expenses?

What about paying for college or private school expenses?

Whether parties in a divorce must pay the expenses of their child(ren)’s college education depends on the law in the state where the parents live and any agreement between the couple. Parents are not required to pay for higher education in some states while in others they are. Whatever the law may be, though, the spouses can agree work out educational costs as part of their divorce settlement.

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