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  1. #11
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    Oct 2006
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    Default Re: A Question of Case Law, There Must Be Some Somewhere

    Quote Quoting Taxing Matters
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    I disagree with the other responses you received. The situation, as you describe it, effectively amounts to gifts from him to her. And while gifts are not income for tax purposes, in Kentucky they are income for child support purposes. As the Kentucky Supreme Court stated:

    In the present case, the trial court determined Appellee's gross income by inferring that she had additional income from gifts, her gambling, and ticket scalping from the court's conclusion that “her lifestyle and property reflected an income greater than her W–2's and tax returns indicated.” Certainly, these types of undocumented income, while not susceptible to documentation, are nevertheless income which, if proven, a trial court should consider when determining a party's gross income.

    Schoenbachler v. Minyard, 110 S.W.3d 776, 784–85 (Ky. 2003). The reason the state includes gifts is that:

    There are no cases in Kentucky construing what is meant by gifts in this context. The definition of “gift” in Black's Law Dictionary is “a voluntary transfer of property to another made gratuitously or without consideration.” Black's Law Dictionary 688 (6th ed.1990).

    In Petrini v. Petrini, 336 Md. 453, 460, 648 A.2d 1016, 1019 (1994), the Maryland Court of Appeals found that a father who had received rent-free housing and payment of expenses from his mother should have those items credited as gifts which increased his income for child support determinations. The court found that if a parent is relieved of some basic living expenses through outside contributions, it may be appropriate under certain circumstances to increase the parent's actual income to account for such contributions. Petrini v. Petrini, 336 Md. 453, 460, 648 A.2d 1016, 1019 (1994). The court acknowledged that these benefits may have the effect of freeing up other income that may not have otherwise been available to pay a child support award. Id. We agree with the Maryland court that by having these expenses paid for him, it frees appellant's other sources of income for payment to his child.

    Stewart v. Burton, 108 S.W.3d 647, 648 (Ky. Ct. App. 2003). Therefore I would take the position that the gifts, if you can prove them, are countable in determining the parent's income.
    I am sorry TM but they are still married, so its a husband supporting his wife. If it was her parents giving her money like that it would be a different story. Then it really would be gifts, but a husband supporting his wife is not giving her gifts. None of the case law has anything to do with a spouse supporting someone either.

  2. #12
    Join Date
    Nov 2013
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    6,662

    Default Re: A Question of Case Law, There Must Be Some Somewhere

    Quote Quoting llworking
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    I am sorry TM but they are still married, so its a husband supporting his wife. If it was her parents giving her money like that it would be a different story. Then it really would be gifts, but a husband supporting his wife is not giving her gifts. None of the case law has anything to do with a spouse supporting someone either.
    You miss the point. I will leave TM to argue his own point. But in Kentucky when an Ex spouse remarries and her support by a new husband changes her financial circumstances by 15%, it is grounds for reconsideration.

    KRS 403.250 provides in relevant part as follows:

    (1) . . . (T)he provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable . . .

    In Wilhoit v. Wilhoit, Ky., 506 S.W.2d 511 (1974), we defined "unconscionable" as used in KRS 403.250(1) to mean "manifestly unfair or inequitable."
    https://scholar.google.com/scholar_c...en&as_sdt=4,18

    There are 4,249 cases left to read.

    And you are incorrect in saying that the new husband's support is not a change in circumstances.

  3. #13
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    Default Re: A Question of Case Law, There Must Be Some Somewhere

    Quote Quoting budwad
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    You miss the point. I will leave TM to argue his own point. But in Kentucky when an Ex spouse remarries and her support by a new husband changes her financial circumstances by 15%, it is grounds for reconsideration.



    https://scholar.google.com/scholar_c...en&as_sdt=4,18

    There are 4,249 cases left to read.

    And you are incorrect in saying that the new husband's support is not a change in circumstances.
    Bud, that was about alimony, not child support. That becomes clear if you read the case.

  4. #14
    Join Date
    Oct 2014
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    7,616

    Default Re: A Question of Case Law, There Must Be Some Somewhere

    Quote Quoting llworking
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    I am sorry TM but they are still married, so its a husband supporting his wife. If it was her parents giving her money like that it would be a different story. Then it really would be gifts, but a husband supporting his wife is not giving her gifts. None of the case law has anything to do with a spouse supporting someone either.
    Not everything given from one spouse to another is support. The husband is not living with the wife and not sharing expenses of her household. The husband also apparently has no court ordered support, so what is the basis for any support obligation here? If there is no enforceable support obligation then the payments being made are gratuitous — i.e. gifts.

  5. #15
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    Oct 2006
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    Default Re: A Question of Case Law, There Must Be Some Somewhere

    Quote Quoting Taxing Matters
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    Not everything given from one spouse to another is support. The husband is not living with the wife and not sharing expenses of her household. The husband also apparently has no court ordered support, so what is the basis for any support obligation here? If there is no enforceable support obligation then the payments being made are gratuitous — i.e. gifts.
    They are MARRIED. The husband's income is marital property. There has never been a child support case where the other spouse's income has been tapped for child support unless 1) the obligated spouse is un or under employed and the other spouses income is looked at in determining how much income to impute to the obligated spouse, or two, the obligated spouse is separated and is being supported under an order of alimony/maintenance/child support.

    Yes, there have been cases where gifts from a parent (if regular and consistent) have been treated as income for child support purposes. But marital income being used to pay a spouse's expenses is never a gift.

  6. #16
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    Oct 2014
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    Default Re: A Question of Case Law, There Must Be Some Somewhere

    Quote Quoting llworking
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    But marital income being used to pay a spouse's expenses is never a gift.
    Can you cite me a Kentucky case that says exactly that? If you are simply going by the fact that you have never seen it then I say that's not enough to hang your hat on. Absent a case that says that, if I were representing him I'd be willing to make the argument that because she and her husband are evidently SEPARATED that she is getting gifts. If they weren't separated it'd be a harder argument to make.

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