Search This Blog

New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and The Family New York, 2d (9 volumes) (Thomson Reuters), is both a treatise and a procedural guide. The text analyzes every aspect of New York Family Law. Law and the Family New York Forms, 2d (New York Practice Library, 5 Volumes) provides practitioner-tested forms for New York divorce and family law matters.

Wednesday, March 21, 2018

Court of Appeals Establishes Guidelines for Disclosure Disputes involving Social Media Materials.




In Forman  v. Henkin, __NY3d__ (2018), a personal injury case, the Court of Appeals rejected the notion that the account holder’s so-called “privacy” settings govern the scope of disclosure of social media materials. It agreed with other courts that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable. It held that rather than applying a one-size-fits-all rule, courts addressing disputes over the scope of social media discovery should employ well-established rules, there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

The Court noted that in a personal injury case it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate, for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.

The Court observed that to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

Plaintiff suggested that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. The Court assumed for purposes of resolving the narrow issue before it that some materials on a Facebook account may fairly be characterized as private. It indicated that even private materials may be subject to discovery if they are relevant. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Second Department Holds Defective Acknowledgement in Prenuptial Agreement Can be Cured by Extrinsic Proof of Notary who took signature.


           
            In Koegel v Koegel, --- N.Y.S.3d ----, 2018 WL 736117, 2018 N.Y. Slip Op. 00833 (2d Dept., 2017), the Appellate Division observed that the Court of Appeals, in Galetta, left open the issue of whether a defective acknowledgment can be cured by extrinsic proof provided by the notary public who took a party’s signature, and held that under the circumstances of this case such proof remedied the defective acknowledgment.

            At the outset it pointed out that Matisoff v Dobi, 90 N.Y.2d 127, 681 N.E.2d 376, 659 N.Y.S.2d 209, (1997) was not controlling here. In Matisoff, a case involving a postnuptial agreement in which the parties waived any rights of election provided by the EPTL, “it [wa]s undisputed…that the document was not acknowledged by the parties or anyone else” (90 NY2d at 130). The case at bar differed from Matisoff since here, there were certificates of acknowledgment of the signatures of Irene and the decedent, but the certificates did not contain the required language for acknowledgment as currently required by the Real Property Law. Similarly, reliance on D’Elia was misplaced since the agreement in that case was not acknowledged at the time of execution. The statement in D’Elia that “[i]t is uncontroverted that the parties’ postnuptial agreement was not properly acknowledged at the time that it was executed” (14 AD3d at 478) was not referring to a defective acknowledgment, but instead, to the absence of any acknowledgment,

            In Galetta v Galetta, 21 N.Y.3d 186, 991 N.E.2d 684, 969 N.Y.S.2d 826 (2013) the parties executed a prenuptial agreement before different notaries at different times one week before their wedding took place in July 1997 (21 NY3d at 189). As here, it was undisputed that the signatures on the document were authentic and there was no claim that the agreement was procured through fraud or duress. The certificate of acknowledgment relating to the wife’s signature contained the proper language (see id. at 190). However, in the acknowledgment relating to the husband’s signature, the certificate failed to indicate that the notary “confirmed the identity of the person executing the document or that the person was the individual described in the document” (id.). The husband filed for divorce and the wife separately filed for divorce and for a declaration that the prenuptial agreement was unenforceable (see id.). The wife moved for summary judgment on her cause of action seeking declaratory relief, contending that the agreement was invalid because the certificate of acknowledgment relating to the husband’s signature did not comport with the Real Property Law requirements. The husband opposed the motion on the basis that the language of the acknowledgment substantially complied with the Real Property Law. He also submitted an affidavit from the notary who had witnessed his signature in 1997 and executed the certificate of acknowledgment (see id.). “The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband’s signature” (id. [emphasis added]). The Supreme Court denied the wife’s motion, finding that the acknowledgment substantially complied with the requirements of the Real Property Law. A divided Fourth Department affirmed the order albeit on the different ground that, although the acknowledgment was defective, the deficiency could be cured after the fact and that the notary’s affidavit raised a triable issue of fact as to whether the agreement had been properly acknowledged when executed (see 96 AD3d 1565, revd 21 NY3d 186)

            With respect to the issue of whether the certificate of acknowledgment accompanying the husband’s signature was defective, the Court of Appeals determined that without stating” to me known and known to me,’” the certificate failed to indicate either that the notary knew the husband or had ascertained through some form of proof that the husband was the person described in the prenuptial agreement (21 NY3d at 193). The Court noted that: “At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife’s signature: before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same’” (id. [footnote omitted]). The Court pointed out that the” to me known and known to me to be the person described in the document’” language “satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document” (id.). It also observed that” [t]he clause beginning with the words and duly acknowledged’ established that the signer had made the requisite oral declaration” (id.). Given the failure to include this language in the acknowledgment of the husband’s signature, the Court of Appeals agreed with the Fourth Department that the acknowledgment did not conform with statutory requirements (see id. at 194).

            Since the Court of Appeals determined that the certificate was defective, it then turned to address the question of “whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife’s favor” (id.). However, in looking at the proof submitted by the husband, the Court of Appeals stated that it “need not definitively resolve the question of whether a cure is possible because, similar to what occurred in Matisoff, the proof submitted here was insufficient” (id. at 197).

            The Court of Appeals analyzed in detail the affidavit of the notary submitted by the husband in opposing the wife’s summary judgment motion. The Court pointed out that the notary only recognized his own signature and had no independent recollection of notarizing the subject document (see id.). Given these statements, the Court found that the husband could not rely on the notary’s custom and practice to fill in the evidentiary gaps because “the averments presented by the notary public in this case [we]re too conclusory to fall into this category” (id.). Further, the Court stated that if the notary had recalled acknowledging the husband’s signature, “he might have been able to fill in the gap in the certificate by averring that he recalled having confirmed [the husband's] identity, without specifying how” (id. at 198). However, since the notary did not recall acknowledging the husband’s signature and was attempting to rely on custom and practice evidence, the Court stated that “it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used — and proof of that type is absent here” (id.).

            In Koegel, the Appellate Division found that the situation at bar was akin to the hypothetical described by the Court of Appeals in Galetta, where the notaries here, the decedent’s law partner and Irene’s attorney, actually recalled acknowledging the signatures at issue. In such a situation, the Court of Appeals explained that the confirmation of the identity of the signer, through an affidavit, is sufficient without having to explain how the identity was confirmed (see id.). Although, in support of her motion, Irene submitted the prenuptial agreement with the defective acknowledgments to demonstrate that the agreement was invalid, the Surrogate’s Court properly declined to dismiss the petition on the basis of documentary evidence in light of John’s submission in opposition to her motion. To supplement the allegations of the petition, in opposition, John submitted affidavits which showed that the petition may be meritorious in spite of the documentary evidence. In response to the assertion that the prenuptial agreement was invalid as improperly acknowledged, the affidavits of Donovan and Jacobsen specifically stated that each observed the document being signed, took the acknowledgment in question, and personally knew the individual signer signing before him. In so doing, the defect in the acknowledgment was cured in order to give vitality to the expressed intent of the parties set forth in the prenuptial agreement. Accordingly, the Surrogate’s Court properly denied Irene’s motion pursuant to CPLR 3211(a)(1) and Domestic Relations Law §236(B)(3) to dismiss the petition. Therefore, the order was affirmed.
 

Second Department Joins First and Third Department Holding Presumption of legitimacy applicable to Same-Sex Marriages




New York has a strong policy in favor of legitimacy. Matter of Anonymous, 74 Misc.2d 99, 104, 345 N.Y.S.2d 430 [1973].  At common law there is a rebuttable presumption that the child, a child born to a married woman, is the legitimate child of both parties. Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 [1930]. The presumption that a child born to a marriage is the legitimate child of both parents ‘is one of the strongest and most persuasive known to the law.” State of New York ex rel. H. v. P., 90 A.D.2d 434, 437, 457 N.Y.S.2d 488 [1982]; Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 [1930].

The presumption of legitimacy as codified in Domestic Relations Law §24 is that a child “born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid”, is the legitimate child of both birth parents. See also Family Ct Act § 417.

In Matter of Maria-Irene D. (Carlos A. v. Han Ming.), 153 A.D.3d 1203, 1205 (1st Dept., 2017) the Appellate Division, first department held that the “presumption of legitimacy”, applies to a child born to a same-sex married couple. There the court applied the presumption of legitimacy to a married gay male couple, one member of whom wanted to vacate the adoption of their child by the other man’s new partner.

            In Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op 00495, *5-6 (3d Dept., 2017) the Third Department held that the “presumption of legitimacy” applied to a a married lesbian couple and that, therefore, a paternity petition filed by the male sperm donor must fail. The court pointed out that typically the presumption is rebuttable in the law” upon clear and convincing evidence excluding the [spouse] as the child’s [parent] or otherwise tending to prove that the child was not the product of the marriage,” quoting Matter of Beth R. v. Ronald S., 149 A.D.3d at 1217. In cases involving opposite-gender spouses, the rebuttal happens, for instance, with “proof that a husband did not have ‘access to’ his wife at the time that she conceived a child and he acknowledged that he was not the biological father, combined with testimony that the child was conceived during a trip with the putative father with whom his wife was in a monogamous relationship,” citing Matter of Beth R. v. Ronald S. But applying case law on rebuttal to same-gender spouses is “inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically the product of the marriage,” and the “changing legal and social landscape requires reexamination of the traditional analysis governing the presumption of legitimacy.”

            In Matter of Joseph O. v Danielle B. ,2018 NY Slip Op 01192 (2d Dept., 2018) the Appellate Division, Second Department observed that it is an established legal presumption that every child born during a marriage is the legitimate child of both spouses (see Domestic Relations Law § 24[1]; Family Ct Act § 417) and that the respondents correctly contended that because the child was conceived and born to the lesbian respondents during their marriage, there was a presumption that the child is the legitimate child of both respondents (see Domestic Relations Law § 24[1]; Family Ct Act § 417; Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op 00495, *5-6; Matter of Maria-Irene D. [Carlos A.-Han Ming T.], 153 AD3d 1203, 1205). The presumption of legitimacy is rebuttable (see Matter of Findlay, 253 NY 1, 7), and thus its application alone did not warrant the summary denial of a paternity petition brought by the sperm donor. However, the Appellate Division found that the respondents were entitled to dismissal of the paternity petition on the ground of equitable estoppel and it was not necessary to determine if the presumption of legitimacy was rebutted.

Table of Effective Dates of Changes to Poverty Income Guidelines Amount, Self-Support Reserve, Combined Parental Income Amount and Income Cap Since 2003.



Table of Effective Dates of Changes to Poverty Income Guidelines Amount, Self-Support Reserve, Combined Parental Income Amount and Income Cap Since 2003.


The maintenance and child support provisions of Domestic Relations Law §§ 236 and 240, and Family Court Act §§ 412 and 413 refer to “income cap” with regard to maintenance and temporary maintenance awards, and “combined parental income” with regard to child support awards.  These statutes also refer to the terms “self-support reserve” and the “poverty income guidelines amount for a single person.”

For purposes of Child support awards pursuant to Domestic Relations Law § 240 the poverty income guidelines amount, self-support reserve, and combined parental income amount change yearly on March 1. For purposes of Maintenance and Temporary Maintenance awards pursuant to Domestic Relations Law § 236[B][5] and [B][5-a] the Income Cap for Maintenance and Temporary maintenance changes yearly on January 31. Different versions of Domestic Relations Law §§ 236 and 240 apply in matrimonial actions depending upon the date of the commencement of an action, and different amounts apply depending upon the date of the application.  The following table has been created to enable counsel to quickly find the amount applicable to actions commenced since 2003 and is available for download, with footnote references and links to charts, on our website at www.nysdivorce.com

Table of Poverty Income Guidelines Amount, Self-support reserve, Combined Parental Income and Income Cap amounts since 2003.


Table I.  Poverty Income Guidelines Amount, Self-support reserve, and Combined Parental Income

April 1, 2003

The poverty income guideline amount for a single person as reported by
the United States Department of Health and Human Services was $8,980. The
self-support reserve was $12,123. The Combined Parental Income Amount was $80,000.


April 1, 2004

The poverty income guideline amount for a single person as reported by
the United States Department of Health and Human Services was $9,310. The
self-support reserve was $12,569. The Combined Parental Income Amount was $80,000.
           

April 1, 2005

The poverty income guideline amount for a single person as reported by
the United States Department of Health and Human Services was $9,570. The
self-support reserve was $12,920. The Combined Parental Income Amount was $80,000.
           

April 1, 2006

The poverty income guideline amount for a single person as reported by
the United States Department of Health and Human Services was $9,800. The
self-support reserve was $13,230. The Combined Parental Income Amount was $80,000.

April 1, 2007

The poverty income guidelines amount poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services was $10,210. The self-support reserve was $13,783. The Combined Parental Income Amount was $80,000.


April 1, 2008

The poverty income guideline amount for a single person as reported by
the United States Department of Health and Human Services was $10,400. The
self-support reserve was $14,040. The Combined Parental Income Amount was $80,000.
                       

April 1, 2009

The poverty income guideline amount for a single person as reported by
the United States Department of Health and Human Services was $10,830. The
self-support reserve was $14,620. The Combined Parental Income Amount was $80,000.


April 1, 2010

The poverty income guideline amount for a single person as reported by
the United States Department of Health and Human Services was $10,830. The
self-support reserve was $14,620. As of January 31, 2010, the Combined Parental Income Amount was $130,000.


April 1, 2011

The poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services was $10,890. The self-support reserve was $14,702. The Combined Parental Income Amount was $130,000.


April 1, 2012

The poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services was $11,170. The self-support
reserve was $15,080.  The combined parental income amount was $136,000.

April 1, 2013

The poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services was $11,490. The self-support reserve was $15,512. The Combined Parental Income Amount was $136,000.

April 1, 2014
The poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services was $11,670. The self-support reserve was $15,755.  As of January 31, 2014, the Combined Parental Income amount was $141,000.
           
March 1, 2015

The poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services was $11,770. The   self-support reserve was $15,890.  The Combined Parental Income amount was $ 141,000.

April 1, 2016

The poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services was $11,880. The self-support reserve was $16,038. The Combined Parental Income Amount was $143,000.

April 1, 2017

The 2017 poverty income guidelines amount for a single person was $12,060.  The 2017 self-support reserve was $16,281. The Combined Parental Income Amount was $143,000.

Table II. Income Cap

October 12 2010

DRL § 236[B][5-a], Temporary Maintenance Guidelines - Income Cap on Temporary Maintenance   The “income cap” on temporary maintenance was $500,000.

January 31, 2012

As of January 31, 2012, the “income cap” of the maintenance payor for temporary maintenance was up to and including $524,000 of the payor’s annual income. DRL § 236[B][5-a] [b][5].

January 31, 2014

As of January 31, 2014, the “income cap” of the maintenance payor for temporary maintenance was up to and including $543,000 of the payor’s annual income. DRL § 236[B][5-a] [b][5].

January 23, 2016

As of January 31, 2016, the “income cap” of the maintenance payor for temporary maintenance was up to and including $178,000 of the payor’s annual income. 

As of January 23, 2016, the “income cap” of the maintenance payor for post-divorce maintenance was up to and including $175,000 of the payor’s annual income.

October 25, 2016

As of October 25, 2016, the “income cap” of the maintenance payor for temporary maintenance   was up to and including $178,000 of the payor’s annual income.

January 31, 2018

As of January 31, 2018, the “income cap” of the maintenance payor for temporary and post-divorce maintenance is up to and including $184,000 per year.


The Tax Cuts and Jobs Act of 2017


            The Tax Cuts and Jobs Act of 2017 (“Act”) repealed the deduction for alimony and maintenance payments and made other changes to the Internal Revenue Code which will affect the negotiation of separation agreements as well as maintenance and child support awards made after January 1, 2018. The provisions of the Act which effect the tax aspects of maintenance and child support, and are of interest to matrimonial lawyers are discussed in this brief summary of the changes.

Alimony Deduction

            The most significant change is that the (“Act”) repealed the deduction for alimony payments for any divorce or separation instrument executed or modified after December 31, 2018. [1] 

             Under existing law [2] alimony and separate maintenance payments made pursuant to a divorce or separation instrument are deductible by the payor spouse and includible in income by the recipient spouse.[3]

            The Tax Cuts and Jobs Act of 2017, [4] eliminated the deduction by the payor spouse for alimony and separate maintenance payments. The Internal Revenue Code provisions that specify that alimony and separate maintenance payments were included in income were repealed. 

            The repeal is effective for any divorce or separation instrument executed after December 31, 2018, or for any divorce or separation instrument executed on or before December 31, 2018, and modified after December 31, 2018, if the modification expressly provides that these amendments apply to the modification.[5] Alimony payments made pursuant to a divorce or separation instrument made on or after December 31, 2018, are no longer deductible by the payor or includable in the income of the recipient. Payments under existing orders continue to be deductible to the payor and are includable in the income of the recipient.
             IRC. § 215, “Alimony, etc., payments” was repealed.[6] It formerly provided, in part: “ In the case of an individual, there shall be allowed as a deduction an amount equal to the alimony or separate maintenance payments paid during such individual’s taxable year.”[7]  For purposes of this section, the term “alimony or separate maintenance payment” was defined to mean any alimony or separate maintenance payment (as defined in section 71(b)) which is includible in the gross income of the recipient under section 71.[8]
          Some ot the conforming amendments are discussed below.
         IRC § 71 [9] “Alimony and separate maintenance payments” was repealed. It formerly provided the general rule that gross income includes amounts received as alimony or separate maintenance payments.”[10] It defined “alimony or separate maintenance payments” as any payment in cash if--(A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument, (B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215, (C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and (D) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.[11]  A “divorce or separation instrument” was defined as (A) a decree of divorce or separate maintenance or a written instrument incident to such a decree, (B) a written separation agreement, or (C) a decree (not described in subparagraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse.  [12]   
     
IRC § 61[13] “Gross income defined” which contains the general definition of “gross income” was amended by striking paragraph (a) (8) titled “Alimony and separate maintenance payments” and by redesignating paragraphs (9) through (15) as paragraphs (8) through (14), respectively.  It had provided: “(a) General definition. -- Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items: (8) Alimony and separate maintenance payments;
           IRC § 62 [14]  “Adjusted gross income defined” was amended by striking paragraph (a) (10) which defined “adjusted gross income”  in the case of an individual, to mean gross income minus the following deductions:  … (10) Alimony.--The deduction allowed by section 215.”[15]

Child Support

            Child support payments pursuant to a divorce or separation instrument are not treated as alimony.[16] The treatment of child support has not changed under the Act.

Enhancement of child tax credit through 2025 and new family credit

  Under 2017 law an individual may claim a tax credit for each qualifying child under the age of 17. The amount of the credit per child is $1,000. A child who is not a citizen, national, or resident of the United States cannot be a qualifying child.[17]
            IRC § 24 (h) was added effective January 1, 2018 [18] and is titled “Special Rules for Taxable Years 2018 through 2025”.[19] Under the Act the aggregate amount of child credits that may be claimed is phased out for individuals with income over certain threshold amounts. [20] The otherwise allowable child tax credit is reduced by $50 for each $1,000 (or fraction thereof) of modified adjusted gross income (“AGI'') over $75,000 for single individuals or heads of households, $110,000 for married individuals filing joint returns, and $55,000 for married individuals filing separate returns. For purposes of this limitation, modified AGI includes certain otherwise excludable income earned by U.S. citizens or residents living abroad or in certain U.S. territories. [21]
      The credit is allowable against both the regular tax and the alternative minimum tax (“AMT''). To the extent the child credit exceeds the taxpayer's tax liability, the taxpayer is eligible for a refundable credit (the “additional child tax credit'') equal to 15 percent of earned income in excess of $3,000 (the ‘earned income'' formula). [22]

          Families with three or more children may determine the additional child tax credit using the ``alternative formula,'' if this results in a larger credit than determined under the earned income formula. Under the alternative formula, the additional child tax credit equals the amount by which the taxpayer's Social Security taxes exceed the taxpayer's earned income credit (“EIC''). [23]

          Earned income is defined as the sum of wages, salaries, tips, and other taxable employee compensation plus net self-employment earnings. At the taxpayer's election, combat pay may be treated as earned income for these purposes. Unlike the EIC, which also includes the preceding items in its definition of earned income, the additional child tax credit is based only on earned income to the extent it is included in computing taxable income. For example, some ministers' parsonage allowances are considered self-employment income, and thus are considered earned income for purposes of computing the EIC, but the allowances are excluded from gross income for individual income tax purposes, and thus are not considered earned income for purposes of the additional child tax credit since the income is not included in taxable income. [24]

           Any credit or refund allowed or made to an individual under this provision (including to any resident of a U.S. possession) is not taken into account as income and is not be taken into account as resources for the month of receipt and the following two months for purposes of determining eligibility of the individual or any other individual for benefits or assistance, or the amount or extent of benefits or assistance, under any Federal program or under any State or local program financed in whole or in part with Federal funds. [25]
 
          The child tax credit is temporarily increased from $1000 to $2,000 per qualifying child.[26]

          The credit is further modified to temporarily provide for a $500 nonrefundable credit for each qualifying dependent, [27]  other than a qualifying children. The provision generally retains the present definition of dependent. [28]

            The maximum amount refundable increases to and may not exceed $1,400 per qualifying child.[29] Additionally, in order to receive the child tax credit (i.e., both the refundable and non-refundable portion), a taxpayer must include a Social Security number for each qualifying child for whom the credit is claimed on the tax return. For these purposes, a Social Security number must be issued before the due date for the filing of the return for the taxable year. This requirement does not apply to a non-child dependent for whom the $500 non-refundable credit is claimed.[30]

      The present age limit for a qualifying child is retained. Thus, a qualifying child is an individual who has not attained age 17 during the taxable year. [31]

      Finally, the adjusted gross income phaseout thresholds are modified. The credit begins to phase out for taxpayers with adjusted gross income in excess of $400,000 (in the case of married taxpayers filing a joint return) and $200,000 (for all other taxpayers). These phaseout thresholds are not indexed for inflation. [32]

       In 2026 the rules for the child tax credit revert to the rules in effect in 2017 with a maximum credit of $1000 for a qualifying child and lower phaseouts. The provision for enhancement of child tax credit and new family credit is effective for taxable years beginning after December 31, 2017 and expires for taxable years beginning after December 31, 2025. [33]
 
Personal and Dependent Exemptions
 
            The personal exemption for tax year 2017 remains as it was for 2016: $4,050.  However, the exemption is subject to a phase-out that begins with adjusted gross incomes of $261,500 ($313,800 for married couples filing jointly). It phases out completely at $384,000 ($436,300 for married couples filing jointly.) [34]
The Act suspended the personal and dependent exemptions from 2018 through 2025.[35] Taxpayers will be able to claim personal and dependent exemptions again in 2026.
Standard Deduction
               The standard deduction for married filing jointly is $12,700 for tax year 2017, up $100 from the prior year. For single taxpayers and married individuals filing separately, the standard deduction rises to $6,350 in 2017, up from $6,300 in 2016, and for heads of households, the standard deduction will be $9,350 for tax year 2017, up from $9,300 for tax year 2016. [36]
 
The Standard deduction is increased from 2018 through 2025. The standard deduction amounts are $12,000 (single person), $18,000 (head of household) and $24,000 (married filing jointly).[37]
Medical Expense Deduction
Medical expenses remain deductible. For 2017 and 2018, medical expenses are deductible to the extent they exceed 7.5% of AGI. In 2019, the threshold will increase to 10% of Adjusted gross income (AGI).[38]






[1] IRC §24

[2] IRC §§ 61, 71, and 215.

[3] IRC §§ 215(a), 61(a)(8) and 71(a).

[4]  Public Law No: 115-97.

[5] Sec. 11051. Repeal of Deduction for Alimony Payments.


[6]  Former 26 U.S.C.A. § 215

[7] Former I.R.C. § 215 (a)

[8] Former I.R.C. § 215 (b)
[9] Former 26 U.S.C.A. § 71, I.R.C. § 71. 
[10] Former I.R.C. § 71(a).
[11] Former IRC § 71 (b)(1)
[12] Former IRC § 71 (b)(2)

[13] Former 26 U.S.C.A. § 61, I.R.C. § 61

[14]  Former 26 U.S.C.A. § 62, I.R.C. § 62 (a)

[15] Former 26 U.S.C.A. § 62, I.R.C. § 62 (a) (10)

[16] IRC § 71(c).

[17] Public law No. 115-97. (2017) See Conference Report at http://docs.house.gov/billsthisweek/20171218/CRPT-115HRPT-466.pdf

[18] Act Sec. 11022 (b).

[19] Act Sec. 11022 (a).

[20] Act Sec. 11022 (a). Increase in And Modification of Child Tax Credit, amending IRC § 24 by adding at the end new subsection ‘‘(h) SPECIAL RULES FOR TAXABLE YEARS 2018 THROUGH 2025; Applicable in case of a taxable year beginning after December 31, 2017, and before January 1, 2026.  Act Sec. 11022 (b) provides that the amendment made by this section shall apply to taxable years beginning after December 31, 2017.

[21] Public law No. 115-97 (2017). IRC §24(h). See Conference Report at http://docs.house.gov/billsthisweek/20171218/CRPT-115HRPT-466.pdf

[22] Public law No. 115-97 (2017). IRC § 24(h)(6).

[23] Public law No. 115-97 (2017). IRC § 24(h).

[24] Public law No. 115-97 (2017). IRC § 24(h).

[25] Public law No. 115-97 (2017). IRC § 24(h).

[26] Public law No. 115-97 (2017). IRC § 24(h)(2).

[27] As dependent is defined in IRC § 152,

[28] Public law No. 115-97 (2017). IRC § 24(h)(4).

[29] Public law No. 115-97 (2017). IRC § 24(h)(5). The Act uses an indexing convention that rounds the $1,400 amount to the next lowest multiple of $100.

[30] Public law No. 115-97 (2017). IRC § 24(h)(7). Additionally, a qualifying child who is ineligible to receive the child tax credit because that child did not have a Social Security number as the child's taxpayer identification number may nonetheless qualify for the non-refundable $500 credit.

[31] Public law No. 115-97 (2017). IRC §24(h).

[32] Public law No. 115-97 (2017). IRC §24(h)(3).

[33] Act Sec. 11022 (b). Public law No. 115-97 (2017). IRC §24(h)(7).

[35] See Act Sec. 11041. Suspension of Deduction for Personal Exemptions.
[37] Public law No. 115-97 (2017). See Conference Report at http://docs.house.gov/billsthisweek/20171218/CRPT-115HRPT-466.pdf

[38] Act Sec. 11022 (a). Public law No. 115-97 (2017). See Conference Report at http://docs.house.gov/billsthisweek/20171218/CRPT-115HRPT-466.pdf