After A Divorce, Who Gets The Stimulus? Hoboken Lawyer Answers

HOBOKEN, NJ — Couples who separated or divorced years ago never could have forseen the coronavirus pandemic — and it's causing rancor in some families over who gets stimulus checks for children's expenses. Without clear instructions in the legislation for how the money is to be divided in a split family, some have trouble resolving the issue when it comes up.

The discussions come at a time when people's living situations, jobs, and finances have been changing. The checks were dependent on tax forms filed a year ago, which can also cause some confusion.

Among the lawyers dealing with questions about this situation, Karen Kirchoff Saminski, a former Jersey City judge who has family law offices in Westfield and Hoboken, said she has been getting calls about it. She said that there isn't one answer for everyone, as each family is different.

With the most recent stimulus payments, individuals earning less than $75,000 per person in adjusted gross income got $1,400 per person in stimulus, which obviously each person gets to keep. But who keeps the $1,400 per child, meant for past or future expenses related to the children?

Financial situations, medical situations, payments toward childcare and camp, and job situations have changed in the past year. And some parents have had to spend more money on food and supplies while their kids have been home on remote learning. Others have lost jobs and gained more or less money from unemployment.

Saminski noted that in some divorces, parents switch off who gets to claim the children on their taxes each year. But early stimulus checks were based on returns for 2019.

"The Family Court is a court of equity (fairness)," Saminski said last week. "It really depends on the individual family situation and there is no one size fits all. The easiest thing would be each party gets theirs and the children’s share is shared by the parents or used toward an agreed-upon expense, provided they are both supporting the child." But, she noted, "That is not always the equitable remedy because each family is different and therefore what is ultimately fair in each case can be different."

There may also be situations in which one parent didn't pay certain mandated amounts for child support, extracurricular activities, or something else.

"If the parties are living together and one party is paying for all of the expenses, it can be argued that the stimulus be used towards regular and recurring monthly expenses," Saminski said. "It’s hard to argue that either party gets to spend the stimulus on discretionary non-essential items when the rent/mortgage is late, the utilities are not paid in full, the supporting spouse/parent is now collecting unemployment."

She noted that the cost of going to court may be higher than the cost of a check. It may be best if families work this out amicably on their own or with help. But there are ways to resolve the issue without court.

"Sometimes a simple letter from an attorney explaining how the person holding the funds is not being equitable and pointing out that counsel fees can be ordered if the court finds bad faith, will resolve the issue," she said.

A party can also file a motion without an attorney by using the forms on the New Jersey Judiciary website, she said.

"If the parties are married not living together, each spouse should get half," she said. "That is relatively straightforward. This is true even if one party is paying alimony."

She said, "The situation often arises where the funds (including those for the child(ren) go to one former spouse because the parties divorced after their last tax return and the last return was joint. If the parties never married, the child’s portion can go to the parent who last claimed the child. In NJ it is very typical for a child support order to include a provision that the tax benefits for children be alternated annually on the parents’ tax returns, so the stimulus checks are going to the party who claimed the children in 2019 since many parents did not file their 2020 returns before the most recent checks were issued."

She said, "Often, there are other issues that can be can be joined if a court-filing is necessary, such as child support arrears or failure to pay court-ordered expenses. For enforcement and for issues such as bad faith, counsel [legal] fees can often be recovered from the other party."

(Saminski can be reached for a consultation at saminskifamilylaw@gmail.com or 201-653-0300.)

Recent domestic violence situations

Unfortunately, a spouse may be intimidated out of asking for a fair share. Back in March, a fight over the stimulus resulted in a situation in Indianapolis in which a man was suspected of killing three adults and a child over a fight regarding the last round of stimulus checks.

Officials have said that domestic violence incidents have the potential to ramp up during the pandemic.

The National Domestic Violence Hotline can be reached at 800-799-7233 or via the website (click here), which allows for chatting and texting options. In an emergency, call 911 or consult your local police.

For general information about the legal definition of domestic violence in New Jersey, frequently asked questions (FAQs), and resources for victims available statewide, go to https://www.njsp.org/division/operations/domestic-violence-info.shtml.

Related story: What People Are Asking NJ Divorce Lawyer During Pandemic

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