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Matrimonial Matters: Recent cases, issues dealing with family law

Sara Stout Ashcraft

Sara Stout Ashcraft

Over the past few months, some family law issues have been the subject of popular news stories. While the news outlets often tend to focus on the more lurid aspects of these issues, the issues themselves deserve attention by family law practitioners.

Frozen eggs and divorce

In a New Jersey divorce action, the wife is requesting the husband be responsible for paying $20,000 to cover the cost of having her eggs extracted and frozen, so that she can attempt to have another child after the divorce. During the marriage the parties underwent several attempts at in vitro fertilization, all of which ended in failure. The wife is claiming that that as this occurred during the marriage, it is part of the marital lifestyle and, as such, it should be maintained.

Unsurprisingly, New Jersey does not have any case law directly on point, but there are cases in other states regarding the custody and preservation of divorcing spouses’ frozen embryos. These types of issues are likely to become more common in divorces as the medical procedures become more widely available.

“Re-homing” adopted children

Reuters and NBC News recently released a series of reports concerning the transfer of adopted children from one family to another with little to no oversight or resort to legal procedures. The practice is termed “re-homing” and, according to the Reuters/NBC reports, typically involves children from foreign adoptions.

This under-the-radar practice is sometimes turned to by parents who cannot deal with their adopted child. Often the child suffers from emotional and behavioral problems, and with limited above-board options, the parents turn to the Internet for help. Unfortunately, the people offering to take the children into their homes are sometimes simply unfit.

As there is limited vetting regarding such transfers within a state, the new parents are free to make whatever claims they want as to the desirability of themselves and their homes in the attempt to assure the adoptive parents that the child will be well cared for. Under the Interstate Compact on the Placement of Children, the parents on both sides of an interstate transfer of a child are required to notify the authorities in both states — thus, hopefully, allowing the new parents to be vetted. However, the Internet provides a means of connecting the parents directly, so that people wishing to avoid government oversight may well be able to do so.

Reuters and NBC News have presented stories from re-homed children who say that their new parents were physically and emotionally abusive, and have uncovered evidence that in at least one instance, the re-homing parents had had their biological children removed by child welfare authorities.

Further, some of the children whose adoptive parents seek re-homing are described as being “special needs,” “sexually acting out” and/or substance abusers. These terms make them prime candidates for sexual predators, who frequently turn to the Internet to find their victims.

Same-sex marriage and taxes

Now for some good news for lawyers and their same-sex clients. Recently the U.S. Treasury and the Internal Revenue Service announced that married same-sex couples will receive the same federal tax benefits previously available only to heterosexual spouses.

This announcement follows the June decision from the U.S. Supreme Court (U.S. v. Windsor,  570 U.S. ___ [2013] [Docket No. 12-307]) striking down the 1996 federal Defense of Marriage Act, which barred federal authorities from recognizing same-sex marriages. In order to avail themselves of these benefits, the same-sex couple must be married — no domestic partnerships or civil unions.

However, even if the couple lives in a state which does not recognize same-sex marriage, if they were married in a state permitting same-sex marriage, the IRS will recognize it.

The IRS ruling affects the couple’s filing status, standard deductions, personal and dependency exemptions, earned income and child tax credits, and employee benefits. It is estimated that under DOMA, average same-sex married couples incurred a $1,000 a year “penalty” by being unable to file taxes jointly.

The ruling also allows a surviving same-sex spouse to avoid federal taxation on property inherited from the other spouse, a major issue in the case leading to the Supreme Court’s landmark decision.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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