Articles were written by attorneys for attorneys and published in the “Family Law” issue of the printed publication, Communiqué (June-July 2017):
- “Helping Victims of Violence with new Civil Law Pro Bono Attorney Programs” by By Noah Malgeri, Esq.
- “Alleging Child Abuse/Neglect in Child Custody Cases: A Double Edged Sword” by Judge Mathew Harter
- “Divorce and Taxes: Important Tax Issues to Consider During Divorce Proceedings” by Robert D. Grossman, Jr., Esq. and Derek N. Hatch, Esq.
Additionally, CCBA President Tami D. Cowden takes a look at the impact of technology on the law in her message, You will be assimilated.
Included in the printed magazine are practical features and highlights for Nevada attorneys including:
- Senior Attorneys Sought for Peer Counselors of Trial By Peers Program
- Nevada Appellate Court Summaries By Joe Tommasino, Esq.
- Smooth Transition to New Local Rules for Family Court By Chief Judge Elizabeth Gonzalez
- Memories of CCBA Past President (’86) Mitch Cobeaga by Sal Gugino, Esq.
- Clark County Bar’s Active Members This Spring
- Sidebar: Bishop Family Law Conference
- 27th Annual Meet Your Judges Mixer
- Liberty Bell Awards 2017
- Books Behind Bars Program
- 2017 Doctors v. Lawyers Showdown
© 2017 The following articles were originally published in Communiqué, the official publication of the Clark County Bar Association. (June/July 2017). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
Helping Victims of Violence with new Civil Law Pro Bono Attorney Programs
By Noah Malgeri, Esq.
The gravest threat to family and community stability is violence. Victims of violence have difficulty holding down jobs and child victims of violence have difficulty focusing in school. The mental health consequences of suffering from violence adversely affect every part of a victim’s life. Fortunately, as attorneys, there are many opportunities available to make an impact by taking on representation in the myriad of related civil matters encountered by victims of violence. Such opportunities provide avenues to achieve justice for these vulnerable victims and create healthier and more stable communities.
This article provides an overview of how motivated Clark County Bar Association attorneys may make an impact in the lives of three particular groups of victims of violence: victims of domestic violence and other violent crime; survivors of human trafficking; and child victims fleeing from countries ravaged by war and unrest. Enabled by a grant from the Nevada Bar Foundation, Legal Aid Center is in the process of expanding its legal services to each of these groups through both staff and pro bono attorneys, including by the creation of new, targeted pro bono programs. Legal Aid Center will expand services offered to these groups by partnering with key community resources and, through successful outcomes, ensure that families and communities are able to heal and stabilize. Potential clients for volunteer counsel will be screened and identified in partnership with domestic violence shelters. Further outreach will be conducted at a new family justice center to be created later this year. Through steps like these our attorneys can make a huge difference in the lives of victims of violence.
Victims of domestic violence and other violent felonies
Sadly, family violence between spouses and partners remains prevalent in our communities. It is a disturbing distinction that Nevada consistently ranks first in the nation for domestic violence fatalities. Further, women in Nevada are 65 percent more likely to be shot and killed by an intimate partner than women nationwide. In fact, in Nevada, a woman’s chance of being assaulted by her partner at home are higher than the risk a police officer faces of being assaulted on the job.
Domestic violence within the immigrant community brings its own unique challenges. Undocumented immigrant victims fear the risk of deportation if they report crimes and cooperate with law enforcement in prosecuting their domestic violence charge. This reluctance is a particular factor when the victim has children and is therefore faced with the possibility of being separated from them. Thus, immigrant victims often hesitate to report crimes, leaving violent offenders on the street without fear of prosecution. These frustrating situations unfortunately create the additional danger of leaving some immigrants especially vulnerable to continuing violence.
As attorneys, we can help these victims to secure a life free from violence. Members of the Clark County Bar Association can make a powerful impact in the victims’ healing processes, by volunteering to provide legal representation to these victims to secure custody and support orders, Temporary Protective Orders, and immigration visas.
Victims of human trafficking
Human trafficking exists in many forms and in different industries, including agriculture, domestic service, and sex trafficking. Nevada in particular is profoundly affected by the multi-billion-dollar, international sex trafficking industry. Common to all forms of sex trafficking is that force, fraud, or coercion is employed, or the crime involves child victims. Data reveals that the crime of sex trafficking has been increasing steadily in recent years, particularly involving victims who were minors when first trafficked. A recently-published nationwide study of minor sex trafficking from 2010 to 2015 revealed the following alarming information:
- A significant increase in minor sex trafficking cases from 2010 to 2015, with almost four times as many cases in 2015 as 2010
- The victims’ age at first exploitation ranged from age 4 to 17 with an average age of 15 years old
- The majority of the sex trafficking activities (sex acts) were in hotel rooms
- More sex traffickers were found to be exclusively victimizing only minor victims
- Physical violence, such as punching, kicking, hitting with weapons, and torture, was used in almost one-third of cases
- According to case reports, only 157 minor-victim sex traffickers were required to register as sex offenders during the period
Survivors of sex trafficking often encounter a multitude of challenges in recovery, including destroyed credit and criminal records hindering or even preventing survivors from securing desired employment. In addressing these and other imposing obstacles, Legal Aid Center and pro bono volunteer attorneys, in cooperation with community organizations, are able to provide tailored and free legal services to survivors. In preparation for this important work, in late 2017, Legal Aid Center will provide volunteer attorneys with specialized training on working with the unique issues of survivors of trafficking. This training will equip local attorneys to address some of the consequences survivors face in order to facilitate recovery.
Child victims fleeing from violence in a foreign land
Years of war and upheaval in many parts of the world have brought a new group of vulnerable victims to our communities – “unaccompanied minor” children, fleeing lands ravaged by war, lawlessness, and violence. Despairing parents and guardians, foreseeing their children becoming victims of gang violence or the drug trade, send their children to the United States in a desperate effort to avoid such fates. Nearly 600 unaccompanied minor immigrants have been released to sponsors in Nevada alone. Without help, they often have no choice but to attempt to represent themselves before an intimidating and unfamiliar immigration proceeding and in an unfamiliar language – a ludicrous proposition. Proceeding unrepresented increases the possibility of deportation back to a dangerous country where they may no longer have a primary caretaker, making them prime targets of sex traffickers and gangs. These children therefore reside in a legal limbo, both unable to secure educational and employment opportunities but ill equipped to remedy their own plight.
Fortunately, avenues of legal relief exist to assist these vulnerable victims, and in turn, stabilize their families and positively impact their communities. In coordination with Legal Aid Center staff resources, pro bono volunteers will have the opportunity of a lifetime to represent such children in their immigration proceedings in Las Vegas. The beginnings of this effort are already well underway. In March 2017, an intensive, three-session immigration practice training was delivered by the Director of the Immigration Clinic at the William S. Boyd School in cooperation with Legal Aid Center. This instruction culminated in a mock trial presided over by an active judge from the Las Vegas Immigration Court. Thirty-five pro bono counsel have already graduated from the training and 16 children have been assigned attorneys.
Despite this auspicious beginning, our community is still facing insufficient resources to serve all those in desperate need of services. Therefore, in cooperation with the Immigration Clinic at the William S. Boyd School of Law, Legal Aid Center will be sponsoring an additional series of on-site trainings at local law firms, which have volunteered to partner with us in this effort. During these trainings, firm attorneys will receive instruction from experienced practitioners, including in the areas of Special Immigrant Juvenile Status (SIJS) and asylum representation, for which they will receive CLE credit. Three such efforts have already been scheduled for this summer. Further, Legal Aid Center will team volunteers with experienced mentor practitioners to provide guidance as their cases progress. Through this effort, a cadre of trained pro bono volunteers will be equipped to take on cases to help such clients.
Although violence, in its many forms, continues to wound our communities there is good news: motivated attorneys have never had more opportunities to provide desperately-needed legal assistance to victims, and in turn, to make a huge positive impact. For those interested in volunteering or training opportunities, please contact Noah Malgeri, Pro Bono Project Director at Legal Aid Center of Southern Nevada, at (702) 386-1429 or firstname.lastname@example.org.
Noah Malgeri, Esq. is the Pro Bono Project Director with Legal Aid Center of Southern Nevada. Attorneys interested in volunteering may visit www.lacsnprobono.org or contact Mr. Malgeri at email@example.com or (702) 386-1429.
Alleging Child Abuse/Neglect in Child Custody Cases: A Double Edged Sword
By Judge Mathew Harter
You have an initial interview with a prospective client regarding modifying child custody. The client alleges amidst the interview that she believes the child might be subject to abusive/negligent treatment at the co-parent’s residence. What is your advice or next move? Your reaction/non-action thereafter could potentially result in: 1) sanctions; 2) a Child Protective Services (“CPS”) complaint against the client; 3) a bar complaint and/or malpractice claim against you; and/or 4) criminal action against both you and/or the client. Those who “dabble” in Family Law, please pay particularly close attention. The timeless legal adage of “ignorance of the law is no excuse” is still applicable. Mayenbaum v. Murphy, 5 Nev. 383, 384 (1870).
I. Definition of abuse/neglect
“Abuse or neglect of a child’ includes (a) physical or mental injury of a nonaccidental nature, (b) sexual abuse or (c) negligent treatment or maltreatment of a child caused or allowed by a person responsible for the welfare of the child under circumstances which indicate that the child’s health or welfare is harmed or threatened with harm.”
NRS 432B.020. (Emphasis added.)
NRS 432B.090 sets forth a detailed list of actions which constitute physical injury, such as “temporary disfigurement” (e.g., marks from spanking). “‘Mental injury’ means an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of the child to function within a normal range of performance or behavior.” NRS 432B.070.
“‘Negligent treatment or maltreatment’ of a child occurs if a child has been subjected to harmful behavior that is terrorizing, degrading, painful or emotionally traumatic, has been abandoned, is without proper care, control or supervision or lacks the subsistence, education, shelter, medical care or other care necessary for the well-being of the child because of the faults or habits of the person responsible for the welfare of the child or the neglect or refusal of the person to provide them when able to do so.”
These definitions purposefully have a wide breadth and depth. The safety of a child is a paramount concern of the State. NRS 432.011; Harrison v. Harrison, 376 P.3d 173 (2016) (citing NRS 432B).
II. Duty to report
“[An attorney] who . . . in his or her professional or occupational capacity, knows or has reasonable cause to believe that a child has been abused or neglected shall report the abuse or neglect of the child to an agency which provides child welfare services or to a law enforcement agency . . . not later than 24 hours after the person knows or has reasonable cause to believe that the child has been abused or neglected.”
NRS 432B.220(1). (Emphasis added.)
Reasonable cause to believe is defined as:
“[i]f, in light of all the surrounding facts and circumstances which are known or which reasonably should be known to the person at the time, a reasonable person would believe, under those facts and circumstances, that an act, transaction, event, situation or condition exists, is occurring or has occurred.”
The specific methods of reporting are set forth in NRS 432B.230.
III. Professional aspects
NRS 432B.225(2)(b) states: “Nothing in this section shall be construed as relieving an attorney from complying with any ethical duties of attorneys as set forth in the Nevada Rules of Professional Conduct [‘NRPC’].” A lawyer is expected to comply with the law. NRPC 1.6(b)(6). A lawyer is required to reveal information he believes is likely to cause substantial bodily harm. NRCP 1.6(d). Attorneys are provided both civil and criminal immunity if a CPS report is made in good faith. NRS 432B.160. This author has astonishingly witnessed attorneys attempt to take the blame for their client’s negligence in this area of law. Why?! The client and attorney have separate and distinct reporting duties; neither can absolve the other. Practice tip: The simplest way to fulfill each person’s duty is to immediately make the report conjointly at the initial interview via speakerphone. Finally, a judge is tasked with the unfortunate duty to report an attorney for any known misconduct. NCJC 2.15.
IV. Criminal act
When there is a failure to report by attorney, it a misdemeanor for the first time and a gross misdemeanor for every time thereafter. See NRS 432B.240. Many attorneys further seem oblivious that unless a case is sealed, it is a crime (gross misdemeanor) to include any information concerning CPS reports and investigations in their motion, which become public record once it is filed. NRS 432B.280; NRS 432B.290(10). As for the prospective client, under NRS 200.508(2):
“A person who is responsible for the safety or welfare of a child pursuant to NRS 432B.130 and who permits or allows that child to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect” can result in a gross misdemeanor or even a felony, depending on the level and type of abuse/neglect.
V. Motions to modify custody
Family Court judges have been directed to “not lightly grant applications to modify child custody.” Ellis v. Carucci, 161 P.3d 239, 242 (2007). Adequate cause to modify custody arises when the moving party presents a prima facie case for modification. Rooney v. Rooney, 853 P.2d 123 (1993). Reasonable cause (defined above) and probable cause are synonymous, very low burdens of legal proof. Ortega v. Superior Court, 135 Cal.App.3d 244 (1982). A motion to change custody employs an elevated preponderance of the evidence burden of proof. Mack v. Ashlock, 921 P.2d 1258 (1996). Purely as a legal strategist (mandatory reporting aside), why not begin a process that employs a lower burden of proof and/or have an investigative agency (CPS) assist/build your case for you?
Family Court is a court of equity.
“He who comes into court must do so with clean hands. The clean hands rule is of ancient origin and given broad application. It is the most important rule affecting the administration of justice.”
Padgett v. Padgett, 199 Cal.App.2d 652, 656 (1962).
The prospective client can be found with unclean hands if the abuse/neglect was never reported, yet included in a filed motion. This scenario is so pervasive at Family Court this author truly believes there is a misconception that filing a motion containing abuse/neglect allegations equates to adequate reporting. Another common excuse is an attorney or party will proclaim their unfulfilling, prior experience(s) with CPS. Please re-read the unambiguous, mandatory reporting requirements. Filing a custody motion or having a prior, poor experience are not delineated exceptions. Ponder for a moment a pure outsider’s perspective. An attorney takes the time and effort to draft a formal motion and file it subject to the obligations in NRCP 11; yet they choose not to abide by the simple, mandatory reporting protocol which carries serious professional and/or criminal ramifications? Simply astonishing!
Once you are aware of circumstances requiring a CPS report, you must follow the law whether you ultimately accept the case or not. Carefully advise the client. If the prospective client is improperly advised and fails to report, they may be charged with failure to protect and then may come back after you for failing to properly advise. Liability for an attorney in this area is unquestionably daunting. However, remember you have sworn a duty to uphold the law. Thus, always err on the side of caution.
Judge Mathew Harter is a native Nevadan (Bonanza H.S. 1984) elected to District Court, Family Division, Department N in 2008. Before sitting on the bench, he clerked for Judge Gerald Hardcastle and then went into private practice with a focus in Family Law. He also served for years as an Arbitrator for District Court.
Divorce and Taxes: Important Tax Issues to Consider During Divorce Proceedings
By Robert D. Grossman, Jr., Esq. and Derek N. Hatch, Esq.
“Am I liable for my ex-spouse’s tax debt?” This question, among many other tax related questions, often arises before, during and after a divorce. More often than not, clients come in after the fact with large tax problems that could have been mitigated with relatively simple tax planning. This article provides a general outline to help identify tax related issues that frequently arise as a result of divorce proceedings.
What is my filing status?
“How should I file my taxes this year?” is probably the most common tax-related question family law practitioners will be asked by their clients during divorce proceedings. If your client is married, he/she can file married filing joint or married filing separate. If taxpayers are divorced, they are confined to single individual or head of household. However, the confusion sets in for a client when determining what the term “married” means. Under the Internal Revenue Code (“Code”), a taxpayer is unmarried for the whole year if: a) he/she (hereinafter called “he”) has a final divorce decree or decree of separate maintenance by the last day of the tax year; or b) the marriage is annulled. It should be noted that the Internal Revenue Service (hereinafter “IRS”) does not view interlocutory decrees as “final” for purposes of determining marital status. See, Marcia W. Seaman v. Commissioner, TC Memo 1970-284; IRS Pub. 504.
For a taxpayer to claim head of household filing status, he must: 1) be unmarried or “considered unmarried” (as set forth below) on the last day of the year, 2) have paid more than half the cost of keeping up a home for the year, and 3) have had a “qualifying person” lived with him in the home for more than half the year (except for temporary absences, such as school).
A taxpayer is “considered unmarried” on the last day of the tax year if he meets the following tests: 1) he filed a separate return (this can include married filing separately, single, or head of household), 2) he paid more than half the cost of keeping up the home for the tax year, 3) his spouse didn’t live in the home during the last six months of the tax year, 4) the home was the main home of the child, stepchild, or foster child for more than half the year and 5) he is able to claim an exemption for the child. The benefit to claiming head of household status allows clients to claim a larger standard deduction than single or married separate, along with additional credits and deductions that are not available when filing married separate.
Can I claim my child?
The next most common question asked by a divorce client is whether she can claim a child as a tax exemption on her tax return. For purposes of claiming children as exemptions on tax returns, the general rule is that the custodial parent is the taxpayer who gets to claim the child. The reason for this is that the child must have lived with the taxpayer for more than half of the year in order to meet the residency requirement of the “qualified child” test.
However, a child will be treated as the qualifying child of a noncustodial parent if all four of the following statements are true: 1) the parents are either divorced or legally separated under a decree of divorce or separate maintenance, are separated under written separate agreement, or lived apart at all times during the last six months of the year, whether or not they were married; 2) the child received over half of his or her support for the year from the parents; 3) the child is in the custody of one or both parents for more than half of the year; and 4) the custodial parent has transferred the right to claim the child. As for the last requirement, the year that the decree went into effect will determine whether Treas. Form 8832 (or other similar declaration) must be submitted with the tax return or if the underlying agreement will suffice. If the decree is 2008 or before, the taxpayer can submit pages of the decree or agreement. If the decree is 2009 or after, the taxpayer must submit Treas. Form 8832 or similar statement. Lastly, the form or statement must release the custodial parent’s claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.
Am I liable for my ex-spouse’s tax debt?
Another common tax related divorce question that tax practitioners hear is “Am I liable for my deadbeat spouse’s tax debt?”. The answer is it depends. Generally, married couples who file a joint federal income tax return are jointly and severally liable for the tax reported or reportable on the return. Code § 6013(d)(3). However, Code § 6015 allows a spouse to obtain relief from joint and several liability in certain circumstances. Code §
§ 6015(b) – Traditional innocent spouse relief
Traditional innocent spouse relief grants clients relief from additional tax the client owes because a spouse or former spouse failed to report income, reported income improperly or claimed improper deductions or credits. Code § 6015(b) provides that a taxpayer will be relieved of liability for an understatement of tax if: (1) a joint return was filed for the taxable year in question; (2) there is an understatement of tax attributable to erroneous items of the nonrequesting spouse; (3) the taxpayer requesting relief “did not know, and had no reason to know, that there was such understatement” when he or she signed the return; (4) taking into account all of the facts and circumstances, it would be inequitable to hold the taxpayer liable for the deficiency attributable to such understatement; and (5) the taxpayer elects to have section 6015(b) apply within two years of the initial IRS collection action. See, Scott v. Commissioner, TC Memo 2015-18.
§ 6015(c) – Separate liability election
Under Code § 6015(c), a divorced or separated spouse may elect to limit liability for a deficiency on a joint return to the portion allocable to him or her. A taxpayer can make a valid election under this section only if: 1) the taxpayer is no longer married to, is not part of the same household of, or is legally separated from his or her spouse; 2) the taxpayer makes a timely election; 3) the IRS does not demonstrate that the taxpayer had actual knowledge at the time the taxpayer signed the return of an item giving rise to a deficiency; and 4) the claim for this protection occurs no later than two years after the Secretary commences collection activities with respect to that taxpayer. Relief under this section often hinges on the requesting spouse’s knowledge. To prove actual knowledge of fictitious or inflated deductions on the tax return, the IRS must prove the requesting spouse actually knew that the expenditure was not incurred or not incurred to the extent claimed. Treas. Reg. § 1.6015-3(c)(2)(i)(B)(2). This knowledge limitation disqualifies only items giving rise to the deficiency that are not allocable to the requesting spouse. Consequently, in these situations, the IRS must prove the requesting spouse had actual disqualifying knowledge of the items attributable to the nonrequesting spouse. See, Kellam v. Commissioner, TC Memo 2013-18.
§ 6015(f) – Equitable relief
Equitable relief may apply when your client does not qualify for innocent spouse or separation of liability for something not reported properly on a joint return and generally attributable to your client’s spouse. A taxpayer may also qualify for equitable relief if the amount of tax reported is correct on their joint return but the tax was not paid with the return. The IRS may grant equitable relief from joint and several liability under Code § 6015(f) if it finds that, taking into account all of the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or deficiency. Unlike relief requests made under Code § 6015(b) and (c), a request for equitable relief is not time barred by the two (2) year limitation on initial collection action by IRS. Factors considered by the IRS under this section include economic hardship, knowledge or reason to know, abuse by the nonrequesting spouse, legal obligation, significant benefit from the unpaid taxes, subsequent compliance and mental or physical health.
§ 66(c) Community property states
Nevada is a community property state, and under Code § 66, married couples who do not file joint tax returns “generally must report half of the total community income earned by the spouses during the taxable year” unless an exception applies. See, Treas. Reg. § 1.66-1(a). Consequently, this means where there is a gross disparity in earnings between husband and wife, in the year of divorce, the lower earning spouse will have a substantial tax liability for the one-half of all community income earned by the higher earning spouse up until the dissolution of the marriage. Fortunately, Congress recognized this potential disparity and enacted Code § 66(c).
In order to qualify for relief under Code § 66(c), the following must be true: 1) the spouses must live apart at all times during the calendar year; 2) they must not have filed a joint tax return for that year; 3) they must have earned income which is community income; 4) no assets were transferred between the spouses as part of a fraudulent scheme by the spouses; 5) the requesting spouse did not knowingly participate in the filing of a fraudulent joint return; and 6) the income tax liability from which the requesting spouse seeks relief is attributable (either in full or in part) to an item of the nonrequesting spouse. If these conditions are met, then the earned community income will be reportable by the party who earned the income rather than one-half being allocated to the non-earning spouse under community property laws.
More complex tax issues can and do arise in many divorce proceedings. However, the above questions are those that are most frequently encountered.
Robert D. Grossman, Jr. is a tax attorney at Tax Law Center, LLC.. Mr. Grossman has a J.D. from the University of Florida, and an LL.M. in taxation from NYU. Formerly a senior trial attorney for the IRS, Mr. Grossman has been in his own law practice for the last 40 years, where he represents taxpayers before the IRS and in tax planning.
Derek N. Hatch is an attorney at Tax Law Center, LLC and represents clients before all federal and state tax agencies, including the IRS and Nevada Department of Taxation. Mr. Hatch received his law degree from Chapman University School of Law, and also holds an LL.M. in taxation.
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