Montana Divorce Lawyer Marybeth M. Sampsel
+(406) 752-6373

Child Custody

15 Apr

Montana Child Support – The Basics

In ALL dissolution cases, parenting cases or separation cases involving minor children, the court must establish a Child Support and Medical Support Order for the support of the minor children.  By the time parties find themselves in District Court, they may already have an active child support case with the Montana Child Support Enforcement Division (CSED).    For example, individuals who receive public assistance under Temporary Assistance to Needy Families (TANF) are automatically referred to CSED.    If parties already have an Order through CSED, the court may simply refer to the Child Support and Medical Support Order established by CSED and acknowledge that it is valid.   If you are already receiving services from CSED or if you are receiving public assistance under the TANF program, you must notify CSED that you are filed for dissolution of marriage, a parenting plan, or a legal separation.

If CSED has not already established a Child Support and Medical Support Order, the District Court will issue a Child Support Order based on the Montana Child Support Guidelines.  The Guidelines are a set of uniform child support guidelines adopted by the Department of Health and Human Services that make it possible to have consistent, predictable child support obligations in family law cases.

Many family law attorneys, as well as most self-help law programs, have a computer software program that does the complicated calculations automatically.  The parties each provide basic financial information using the Montana Child Support Guidelines Affidavit (which can be found online at: http://www.dphhs.mt.gov/csed/packet/financialaffidavit.pdf).  The information on each parties’ Financial Affidavit is plugged in and child support is calculated by the program.

The major factors considered in determining child support are the following:

1.  How many days per year the child(ren) spends with each parent;

2.  The cost of daycare:

3.  The financial resources available to each parent and the child(ren);

4.  The standard of living the child would have had if the parents were still together:

5.  The child(ren)’s emotional, educational, physical/medical needs; and

6.  The age of the child(ren).

Along with a Child Support Order, the court must issue a Medical Support Order addressing how the parents will cover the cost of medical insurance and medical expenses for the minor child(ren).  Generally, if a parent has medical insurance available through his/her employer at a reasonable cost, that parent must provide health insurance cover for the child(ren).  If both parents have access to health plans, they may both be required to provide coverage.

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12 Apr

Montana Divorce Tax Issues

With the deadline to file 2009 taxes looming, many divorced and separated couples are in the process of determining how they will file their taxes and which parent will claim the children for tax purposes.  Though I am not an accountant and I highly encourage everyone with tax questions to discuss them with a tax professional, here is some basic tax information to keep in mind this tax season.

First, your marital status for tax purposes is set as of the last day of the calendar year.  If you are legally married as of December 31st of a given year, you must file as “married.”  If your marriage has been dissolved or invalidated as of December 31st of a given year, you must file as “single.”  

If you are filing as married, you must make the decision whether to file “married, filing jointly,” or “married, filing separately.”  Many couples will see a tax benefit by filing jointly, even if they are living separately.  As such, I always encourage my clients to explore both options with an accountant before making the decision how to file. 

Another major issue for separated or divorced couples is determining which parent is entitled to claim the exemptions for the minor children.  Dependency exemptions and the corresponding child tax credit can be traded back and forth.  However, the IRS assumes that the parent who has the children the majority of the time is entitled to the exemptions, so parties must use IRS tax form 8332 if they will be trading the exemptions back and forth.  

Unlike the dependency exemption and child tax credit, the Earned Income Credit and day care credit go to the parent who has the children in their care more than half the time.  The Earned Income Credit is also only available if the parent claiming the credit has an income of under a certain amount.  Check with a tax professional if you are unsure if you qualify.  

Tax exemptions can be a major issue in divorce cases, as claiming minor children can provide a huge tax benefit to one or both parents.  Because tax exemptions can also affect child support, I encourage clients to discuss all the options with an accountant.

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12 Apr

Summary Dissolutions – the Quickie Divorce?

Montana’s 1991 Legistlature created a simplified process for couples to more quickly and easily end their marraige.  Summary dissolutions are reserved for those couples who are in agreement about ALL aspects of their divorce from property distribtuion to parenting.   In addition, you and your spouse must meet the following statutory requirements:

1.         You or your spouse have lived in Montana (or either of you was a member of the armed services stationed and residing in Montana) for at least 90 days before the filing of the action;

2.         Irreconcilable differences have caused the irretrievable breakdown of the marriage, and you both agree that the marriage should be dissolved;

3.         The wife is not pregnant AND (a) there are no children from the relationship; or (b) you have agreed-upon and executed a parenting plan and child support and medical support has been determined;

4.         Neither of you has any legal interest in real property such as homes, land or buildings.  This provision does not apply to a lease on a residence which is occupied by either spouse as long as the lease does not have an option to buy and the lease terminates withint one year from the date the Petition for Dissolution is filed;

5.         There are no unpaid, unsecured obligations in excess of $8,000 incurred by either or both of the parties after the date of their marriage.  “Unsecured” debts are those that are not secured by a specific piece of property.  For example, a credit card debt is generally unsecured debt;

6.         The total fair market value of your and your spouse’s assets, excluding secured obligations, is less than $25,000.  Assets include all things of value such as vehicles, personal belongings, furniture, etc.;

7.         Both of you have signed an agreement agreeing to the division of property and who will be responsible for any bills or obligations.  Signed documents, title certificates, bills of sale, or other evidence of transfer or agreement should be presented to the court at the time of your hearing to confirm the division and responsibilities;

8.         Both spouses  give up their individual right to maintenance (also known as alimony or spousal support);

9.         Both spouses give up their individual right to appeal the terms of the dissolution and your right to move for a new trial once the marriage is formally dissolved by the court;

10.      Both spouse have read and state that you understand the contents of this summary dissolution booklet; and

11.       Indicate to the court that you want the court to end the marriage.

While the steps can seem a bit cumbersome at first glance, the summary dissolution process is usually signficantly faster, easier and cheaper than the full dissolution process.   Forms for the summary dissolution process can be found online on the Montana Courts website.

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03 Mar

Information for those considering divorce in Kalispell and the greater Flathead Valley

On March 6, 2010 a panel of local experts will provide a free seminar on the emotional and legal aspects of troubled marriages at the Whitefish Public Library, from 9:00 am until 12:00 pm. “MARRIAGE IN CRISIS: Resources For Making Difficult Changes” is sponsored by the HeartWorks Mediation Center in Whitefish.

A variety of free professional services will be available to registered attendees in the afternoon. Experienced family law attorneys and therapists will be offering free sessions of 15-20 minutes to those who register in the morning. These brief sessions will provide an opportunity to make initial assessments and get specific answers to legal questions. It is recommended that participants write down their questions in advance.

The panel includes District Court Judge Katherine Curtis, Columbia Falls psychotherapist Anne Scott-Markle, Whitefish family mediator Brian Muldoon, and Marybeth Sampsel, a Kalispell divorce lawyer. Presenters also include Kandy Satterlee of the Self-Help Law Center and Jolie Fish, Director of Family Court Services.

“We have asked some of the leading local experts to provide the kind of information that people need when contemplating divorce,” said Muldoon, the founder of the HeartWorks Mediation Center. “These issues include the psychological and emotional aspects of divorce as well as the legal part of the process. Getting the right information is a good place to start.”

FOR FURTHER INFORMATION CONTACT:

Brian Muldoon

HeartWorks Mediation Center

525 Railway Street

Whitefish, MT  59937

406-862-9292         or      heartworks@montanasky.com

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02 Mar

Libby MT Divorce Lawyer

One Aspect of my practice that surprises my clients is that I often represent clients in Libby, MT and the rest of Lincoln County.  Understandably, being over an hour away, it may seem like this would be a major inconvenience.  However, the nature of Montana divorces and family law cases means that most of them settle without ever setting foot inside a court room.  That, combined with the advantages and flexibility of technology like email, phone conferencing, and computer scanners allows me to work with out of town clients as easily and productively as those located more locally.

The end result is that many of my Libby clients see little or no extra charge.  Of course, each case is unique and, as I’ve discussed before, I make no guarantees or predictions about final costs.  That being said, many of my clients are from Libby and have decided that hiring me was their best option.

Whether you are from Libby or anywhere else in Montana, if you are facing divorce or any other family law issues, please consider calling myself or another attorney in order to discuss your case.

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23 Feb

The Benefits of Negotiating a Parenting Plan in Montana

As a Kalispell divorce lawyer, I can tell you that for many divorcing Montana couples, negotiating a parenting plan is the most financially, emotionally and physically exhausting part of the process. Furthermore, a lengthy battle over a residential schedule can result in long-term consequences for the minor children involved.

Parents who are able to negotiate a parenting plan for their children without significant court involvement will often reap the benefits. First, by avoiding a trial or hearing on parenting, a parent will likely maintain more control over the future of their relationship with their children. Additionally, divorcing couples may find that they are able to have an amicable relationship moving forward when they have avoided the heated battle of a trial. And perhaps most obviously, a divorce client will likely save thousands of dollars in attorney fees and court costs.

The best way to prepare yourself for negotiating a Parenting Plan is to set aside the negative feelings you have towards your soon-to-be-ex-spouse and focus on what is in the best interest of your children. If you are unable to reach an agreement together, consider attending mediation.

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19 Feb

A Child’s Guide to Divorce

One of the most difficult tasks for a divorcing couple here in Motnana is breaking the news to their minor children. It can be tricky to explain such an adult concept to children, particularly when many divorcing couples cannot explain to each other what went wrong. Luckily, there are many resources aimed specifically at children that parents can utilize during this difficult time.

KidsHealth.org has an online “Kid’s Guide to Divorce” that explains divorce in age-appropriate terms and stresses that children are not the cause, nor can they be the savior, when a couple decides to divorce. The site has additional information for children who may be living with a new stepparent or will be moving away.

There are also several children’s books for parents and children to read together while coping with divorce. Most of the books provide a simple, clear way to explain to children that they are still loved by both parents. I recommend the following:

  • Dinosaurs Divorce: A Guide for Changing Families by Marc Brown
  • It’s Not Your Fault, Koko Bear by Vicki Lansky
  • Two Homes by Claire Masurel
  • Standing on My Own Two Feet by Tamara Schmitz
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18 Feb

100% Free Legal Advice!!! A warning…

In the age of the internet, information and answers seem to be one click away. But if you are a legal consumer attempting to get their questions answered – BEWARE! Sites are popping up all over the internet that promise free legal advice, 3 Step Divorces, and an answer to every legal question you have ever had. While I encourage individuals to consider all of their options, it is impossible for any lawyer to answer specific legal questions without more information than you can provide on those sites. You will truly get what you pay for.

There is a reason that most lawyers, including many of those in Kalispell, Whitefish, Columbia Falls, Bigfork, Libby, and Polson charge for an initial consultation. In order to answer your specific questions, they must first gather a great deal information regarding your finances, family and children and incorporate it into their analysis. You will usually find that a good consultation takes time, because the lawyer must get all of their questions answered before they can answer yours.

This advice also applies to those individuals that call up a lawyer for a quick piece of information. Remember that you cannot get adequate advice if you do not give adequate background information. It is worth your time and money to make sure you go into a divorce, or any other legal matter, with all the facts.

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18 Feb

Groundbreaking Decision by The Montana Supreme Court

Michelle Kulstad and Barbara Maniaci adopted two children during their 10 year committed relationship. Because Montana adoption law does not allow a homosexual couple to adopt a child, Ms. Maniaci legally adopted the children as a single person, but the couple jointly raised the children during their relationship. In 2006, the couple decided to separate and in January 2007, Ms. Kulstad filed a lawsuit to ensure she would be able to continue parenting her children and to receive her share of the property the couple accumulated during the time they were together.

A two day trial took place in May 2008 and a court-appointed expert testified strongly in Ms. Kulstad’s favor, indicating the children had formed a strong bond with Ms. Kulstad and that denying her time with them would be detrimental. The trial court found that Ms. Kulstad had a parent-child relationship and that it was in their best interest to maintain that relationship. Thus, the court granted Ms. Kulstad visitation rights to the children.

Ms. Maniaci appealed the decision to the Montana Supreme Court and oral arguments were heard on behalf of both Ms. Maniaci and Ms. Kulstad. The Montana Supreme Court upheld the decision of the trial court 6 – 1 and upheld the Montana law that recognizes parent-child relationships that arise outside of biology and adoption when certain criteria are met.

Though this case happened to involve a lesbian couple, such a decision could affect many heterosexual couples in Montana. For example, a person who has acted as a parent to a girlfriend/boyfriend’s child may have continuing rights to act as a parent to the child even after the relationship has ended.

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16 Feb

IRS Procedure Changes Tax Treatment of Dependents

Generally speaking, the IRS does not allow the non-custodial or parent with the least number of parenting time (in Montana divorce terms) to claim the children as dependents for the purposes of the dependency tax exemption. If a non-custodial parent plans to claim a child, Internal Revenue Section 152(e) requires the custodial or parent with the greatest number of days of parenting time to provide a written declaration that he or she will not claim the child as a dependent for a given tax year. The non-custodial must provide a copy of the declaration to their tax return. For those in Montana, attaching a copy of the Parenting Plan that deals with claiming the tax exemption may suffice.

In August 2008, the IRS released a new procedure that will treat a child as a dependent of BOTH parents under certain circumstances, particularly those relating to medical expenses, medical insurance and certain employee benefits. Internal Revenue Procedure 2008-48 allows a parent to claim a child as a dependent (with the declaration from the other parent) for the following purposes:

  • Exclusions from gross income for employees for certain employer-provided medical reimbursements, including expenses incurred by employees for medical care of a spouse and dependent children (Code Section 105(b));
  • Exclusions from gross income for contributions made on behalf of employees, their spouses and dependent children to an accident or health plan (Code Section 106(a));
  • Exclusions from gross income for “no-additional cost services” that an employer provides to employees, their spouses and dependent children as fringe benefits or qualified employee discounts (Code Sections 132(a) and 132(h)(2));
  • Deductions for medical expenses, including medical expenses of a taxpayer’s spouse or dependent children (Code Section 213(a)); and
  • Exclusions from gross income for distributions from Archer Medical Savings Accounts and Health Savings Accounts that are used to pay for qualified medical expenses of the beneficiary, the beneficiary’s spouse and dependent children (Code Sections 220(f)(1) and 223(f)(1)).

For more information, speak to a tax your tax professional.

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