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Divorce Attorney Limitations, Asking Your Attorney About Tax Matters and Estate Planning

A divorce attorney may or may not wish to become involved in regard to the preparation of estate planning documents for a client or giving tax advice or assist with the preparation of income tax returns for a client. In a divorce case, including with respect to the tax concept of an “innocent spouse” and/or “income due to forgiveness of indebtedness," a divorce attorney should never handle legal matters with respect to which he or she is not competent.

If there are tax issues in regard to a dissolution of marriage proceeding, and the divorce attorney is not comfortable giving tax advice or taking any action regarding taxes, then there may be a referral to competent tax counsel, or an accountant or tax return preparer, to assist in that aspect of the case, including in regard to recommendations and action to be taken. “Innocent spouse” issues can arise with respect to unfiled tax returns and/or evasion of taxes whereby the party responsible for timely filing accurate tax returns has not done so for one or more years. Innocent spouse relief is generally not available if the spouse received benefits as a result of amounts not paid as taxes by the other spouse including, but not limited to, in regard to house payments being made, expenses for food, shelter costs even at a time when the spouse did not know that the other spouse was not timely filing accurate tax returns and paying tax liabilities. “Income due to forgiveness of indebtedness” has to do with relief in the form of forgiving all or part of a debt and how the act of forgiving all or part of a debt may result income to the party whose debt is forgiven. If only one of the parties was responsible for the debt, then if the debt is forgiven and if the debt triggers income due to forgiveness of indebtedness, that would only impact the party whose debt was forgiven, and not the other party to the divorce proceeding.

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Either or both parents may be ordered to pay reasonable and necessary child support, without regard to marital fault or misconduct. If the official Illinois guidelines are not appropriate, the court considers the financial resources and needs of the child, the standard of living the child would have enjoyed if the marriage had endured, the physical, emotional, and educational needs of the child, and the financial resources, needs, and obligations of both the non-custodial and the custodial parent. Support payments may be ordered paid directly to the court.
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