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Unmarried Parents Are Still Parents

By Julie A. Dialessi-Lafley, Esq.

 

More and more frequently, people are opting not to get married, but are still desirous of having children and becoming parents, whether or not they are in a committed relationship with their partner. The decision to have a child or children creates a permanent connection to the other parent, regardless of the marital status of the parents.

Unmarried parents have various types of relationships. We see unmarried parents that live together, some have separate households but spend time together, and many are not together any longer and may have new relationships. The unmarried parents need to navigate how to bring up their child together while being apart. This requires that both parents understand that the other parent has a right to be in the life of the child. The law supports the idea that fathers and mothers both have the right to parent their children, even if unmarried.

Emotions of the parties often cloud their judgment when considering the role of the other parent in the life of the child. Did the parties break up? Has one person (or both) moved on? Was the relationship short-term without commitment and lacking a foundation between the parents? The history of the relationship is certainly impactful on the parent; however, first and foremost, parents need to be reminded that fathers need to be responsible, present, and cooperative with the mothers of their children, and mothers need to encourage, support, and accept the relationship a child has with their father.

 

The Child’s Best Interest

The standard in the Commonwealth of Massachusetts to determine a parenting plan and custodial relationship with children and parents starts with a best-interest standard. The presumption is that both parents should play a role in the life of a child unless it is not in the child’s best interest. It is often difficult for a parent to separate their feelings about the other parent when trying to determine the parenting relationship. It is clear, however, that simply because someone is not a good partner does not mean they should not be in the life of their child.

Julie A. Dialessi-Lafley

Julie A. Dialessi-Lafley

“First and foremost, parents need to be reminded that fathers need to be responsible, present, and cooperative with the mothers of their children, and mothers need to encourage, support, and accept the relationship a child has with their father.”

When parents are not married, the law provides that, absent an agreement or court order otherwise, the mother has sole legal and physical custody of the child. This is rebuttable and is not intended to prevent fathers from having equal footing in the lives of their children.

More times than not, with good communication, the parents can develop a parenting plan that provides for both parents to be involved in the legal decision making for the major medical, educational, and religious decisions of the child. This is what is known as legal custody. Parents can agree to share legal custody and make these major decisions together.

If they are unable to agree, a court may order shared legal custody if a history of the parents being able to work together to make these decisions can be demonstrated. Even if the court does not order shared legal custody, both parents still have the right by statute to have access to the medical and educational information and records of the child. It does not mean that a parent is excluded from knowing these things about their child.

There are always exceptions that need to be considered, such as domestic violence or history of restraining orders, which impact the ability of the court to grant certain relief if the parents are unable to agree.

It is worth reiterating that, if the parents are able to put their feelings about the relationship with the other parent aside and focus on the child, they can in most circumstances — if certainly not every one — develop a parenting relationship where both parents can be involved in the child’s life.

Parenting plans that deal with the actual parenting time the parties spend with the child should include the normal parenting plan, a holiday schedule, and vacation schedule, so that there is a clear plan for each parent’s time with the child. The location of pick-up and drop-off of the child, the specific time for exchange of the child, and who may transport the child are critically important in developing the parenting plan. Being clear and specific with these terms may create a plan that will reduce conflict between the parties when they may not both have the same philosophy about co-parenting with the other parent.

Parenting plans should also deal with child support, health insurance, uninsured medical expenses, extracurricular activities and payment of those expenses, education of the child, and the primary residence of the child, at a minimum.

The parenting plan also can include terms around communication. Communication is key, and throughout the child’s life, there are going to be countless times when the parents will need to discuss or exchange information with the other parent, make a decision together, or attend parent-teacher conferences, activities, or countless different life events.

A method of communication can be defined, such as through text, a parenting application which tracks communication, or through parent meetings on a scheduled basis. Regardless of the method, it is often key to successful co-parenting for there to be set rules as to where, when, and what the parents talk about.

By agreement, parents can include terms around phone calls or video calls with the child, as well as any other contact they want to have in between their parenting time. Language that fosters a positive and supportive parenting relationship between the child and the other parent can be included by agreement of the parents to prevent disparaging, disrespectful discussions.

 

The Court as a Last Resort

If the parents are unable to agree on how to develop a parenting plan, the court ultimately has the jurisdiction to make the decision. The court will do its job, but most every judge will encourage the parents to come to an agreement if they are able to do so, as they know their child better than anyone.

If the court is ultimately the decision maker, the court will consider the age and developmental stage of the child, the individual needs of the child, the history of the relationship between the parents, how close the parents live to each other, the parents’ work schedule, and problems such as substance abuse, domestic violence, child abuse, or a criminal record.

Naturally, this is not the exhaustive list, and the topics of this article are general. When navigating these issues, you should seek advice of an attorney in order to understand all the issues that need to be addressed and understand your rights as a parent.

 

Julie A. Dialessi-Lafley is a shareholder with the law firm Bacon Wilson, P.C. and chairs the firm’s Family Law department. She is a certified family law mediator, a member of the Springfield Women’s Leadership Council, a member of the United Way of Pioneer Valley board of directors, and is licensed to practice law in both Massachusetts and Connecticut; (413) 781-0560; [email protected]

 

Accounting and Tax Planning

And Why Does it Matter to My Business?

By Colleen Berndt, CPA

 

State tax nexus refers to the amount and type of business activity that must be present before the business is subject to the state’s taxing authority. Every state has its own set of tax laws and required filings. In recent years, the whole concept of state nexus for sales tax and income tax has dramatically changed.

Traditionally, state tax was based on more of a physical presence test. Thus, if your business did not employ people and property in a particular state, then most often the business would not be required to register or file in that state.

As with many laws, it takes time for states to address issues and make changes for how business is transacted in the modern world. How we conduct business is changing at a faster and faster pace. The COVID-19 pandemic generated unprecedented e-commerce growth in various economies across the globe and is anticipated to continue to grow at a rapid pace.

Colleen Berndt

Colleen Berndt

“While the Wayfair decision did not directly impact income-tax nexus, the removal of a physical presence requirement for sales-tax nexus has definitely encouraged more states to enact a sales threshold as an indicator for income-tax nexus.”

The pandemic also resulted in millions of people across the world to become remote workers, creating another major shift in how modern-day business is conducted. Remote working has become the ‘new normal,’ almost overnight.

 

The Wayfair case – a major shift in state taxation

On June 21, 2018, the United States Supreme Court ruled in South Dakota v. Wayfair Inc., et al, that states can require an out-of-state seller to collect and remit sales tax on sales to in-state consumers even if the seller has no physical presence in the consumer’s state. 

In doing so, the court overruled 50 years of its own precedent. The decision allows states to define a sales threshold (either by dollar amount or the number of transactions) that will trigger a sales tax collection requirement.  

Since the Wayfair case, Massachusetts enacted legislation to change the state’s economic thresholds to $100,000 in sales with no transaction threshold. Most states now employ a dollar and/or a number of transactions threshold for sales tax collection and remittance. The frequency in which the tax must be remitted also varies greatly from state to state.

While the Wayfair decision did not directly impact income-tax nexus, the removal of a physical presence requirement for sales-tax nexus has definitely encouraged more states to enact a sales threshold as an indicator for income-tax nexus.

The increase in states employing an economic nexus standard, combined with the change in how business is transacted, has opened the door for a migration toward market-based sourcing. Market-based sourcing is the idea of taxes being imposed on where the service is consumed, rather than the location where the service was performed.

Under Massachusetts law, “doing business” includes every act, power, right, privilege, and immunity exercised or enjoyed in the Commonwealth, as an incident or by virtue of the powers and privileges acquired by the nature of such organizations, as well as, the buying, selling or procuring of services or property. In addition, Massachusetts will presume that a business’s corporation’s virtual and economic contacts subject the corporation to the tax if the volume of the corporation’s Massachusetts sales for the taxable year exceeds five hundred thousand dollars. Again, each state has its own unique set of rules to determine nexus.

 

Remote employees’ impact on nexus

Generally speaking, a remote employee will create nexus for the employer for tax purposes. Many states provided relief for pandemic-related circumstances, but most of those provisions have since expired. Nexus created by remote-working employees can create significant tax liabilities in new jurisdictions, especially for income tax purposes where the company has significant receipts from the state and the state apportions using a single sales factor formula, as many do. Massachusetts still utilizes a three-factor formula (sales, payroll and property) for most businesses. Most states have transitioned to sales as a single factor to determine apportionment.

 

The impact on recordkeeping

In order to ensure state tax compliance, businesses must keep records that perhaps were not required in the past. Thankfully, most businesses have a computerized accounting system, however, it may require more detailed information then previously needed to determine filing requirements.

For instance, the number of transactions by state may not have been a standard reporting item in the past. Another consideration is that the invoicing state may not necessarily be the state where the product is being consumed. If that is true, then the shipping records must become integrated into the accounting records to provide accurate sales-by-state reports. Given the digital footprint left by any type of transaction, states are aggressively pursuing businesses looking for some type of economic presence requiring the business to register and pay various tax types.

Also, employers must keep track of employees who work remotely by state. This can be especially challenging for hybrid employees who may reside in a different state than which the employer is located. The record-keeping requirements and then complying with all state filings (employment, sales, income, gross receipts, and franchise taxes) can be complex, costly, and overwhelming for small businesses.

Not only can it be very complicated and costly to ensure that a business is complying with all state filing requirements, the rules are complex and subjective in nature. This is why it is always best to consult with your tax advisor.

 

Colleen Berndt, CPA is tax manager with Lapier, Dillon & Associates PC; (413) 732-0200.