We join attorney DONALD P SCHWEITZER again in the studio with CNN's NANCY GRACE, as they discuss the case of the still missing Florida toddler, daughter of CASEY ANTHONY.

Intercepted phone conversations from the Florida jail reveal that family members of Casey Anthony believe she is lying about the disappearance of her two year old daughter. Listen in as Nancy Grace and Don Schweitzer discuss the incriminating phone conversations and other evidence known about this case.

Join attorney Donald P Schweitzer in Fox New's Studio B as he discusses the potential invasive practices of your neighbors using criminalsearches.com.

A two year old toddler is missing in Florida for more than a month before her mother makes a police report. When the police investigate the case, the mother tells them multiple lies about the little girl's disappearance. Today, the mother refuses to speak to the police, asserting her Fifth Amendment right against self incrimination. What is wrong with suspecting the mother of foul play in light of these facts?

Join attorney DONALD SCHWEITZER on CNN's Nancy Grace, as he discusses the case of the missing 2 year-old Caylee Anthony. Joining Don are host JANE VELEZ-MITCHELL, and CASEY ANTHONY's attorney, JOSE BAEZ. You be the judge after hearing the responses given by Ms. Anthony's attorney to Donald's cross examination. Click onto the above presentation to watch their discussion.

As a parent you may assume that you can claim your children as dependants on your tax returns. But what if you and the other parent do not live together and share custody of your child? In review of Anderson v. Commissioner, a recent case decided in tax court, we see that there are specific rules as to which parent is entitled to the dependency exemption. Rules that you may need to know before filing your taxes. Continue reading or click onto the above presentation for a detailed analysis of this case.

A Very Busy Man

We invite you to peer into the life of Albert Anderson and his busy work schedule. Albert was married to Angela in December, 2004. Albert and Angela did not live together during the year following their marriage, however. Albert was very busy as he worked two jobs, which may be one of the reasons why Angela did not move in with him. From 9:00 am to 5:00 pm Albert worked as a gas station attendant, and from 11:00 p.m. to 7:00 am he worked as a room service attendant at a casino.

As you can imagine, Albert had very little time to attend to personal matters, while moonlighting, and literally working night and day. With such a hectic schedule, Albert would go home for a few hours to sleep, and then he would wake up, eat, take a shower, and head back to work. Albert spent very few hours at home.

In May, 2004 Albert's personal life became even more complicated, when a woman named "Cynthia," gave birth to his son. After the baby's birth, Albert continued to live by himself. Cynthia and the baby lived about fifteen minutes away.

When Albert filed his 2004 federal tax return, Albert claimed head of household filing status, a dependency exemption for his son, and an earned income credit of $2,406. Obviously Albert believed he was entitled to the dependency exemption, since he was the child's father.

The Internal Revenue Service Comes Knocking

Unfortunately, the IRS had problems with Albert's tax return. The IRS sent Albert a deficiency notice taking the position that his correct filing status was single and that he was not entitled to either the dependency exemption or the earned income credit. According to the IRS, Albert's deficiency amounted to $2,406, the amount of the disallowed earned income credit. Albert subsequently petitioned the tax court for relief.

In tax court, Albert testified that although Cynthia and the baby did not live with him full-time, the two would come to his house every morning to be with him while he slept a little before going to work. According to Albert, Cynthia and the baby stayed at his house during the day while he worked at the gas station, and he would take them home when he went to his night job at the Casino.

Moreover, Albert argued that he was entitled to the exemption based on the amount of child support he was providing for the baby. As evidence of the support he provided for the baby, Albert submitted to the tax court receipts for things he bought the baby, such as food, clothing, diapers, and of course toys. However, Albert had not documented the total amount of money he claimed to have spent on the baby.

And the Tax Court Speaks . . . .

The tax court denied Albert's relief and held that he was not entitled to the dependency exemption. In rendering it's decision, the tax court reasoned that Albert would be allowed to claim the dependency exemption for his son only if he could show that he had furnished over half of the child's support for 2004 and had custody of him for more than half of the year.

In review of the evidence, the court further stated that Albert's testimony regarding his daily routine "strains credibility," but even if it were true it would not entitle him to claim the exemption because he failed to show that he provided over half of the child's support or had custody for more than half of the year. Furthermore, based on Albert's testimony, the court found that Cynthia had custody of the baby, and Albert failed to document the support he had paid.

As to Albert's request for the earned income credit, the court noted that a married person cannot claim the credit unless he or she files a joint return, which Albert had not done. Moreover, Albert would not be entitled to claim the credit if he was not entitled to claim the dependency exemption. Thus, all of Albert's requests were denied and the court held that he owed the government money.

Some Armchair Quaterbacking

It is always easier playing arm chair quarterback, but it seems to be a no brainer that Albert should have obtained the advice of a family law attorney or tax expert before filing his taxes.

According to the Internal Revenue Code, the custodial parent (defined as the parent with custody for more than half the year) is entitled to claim the dependency exemption.

However, there are a couple of ways to get around this rule. First, the non custodial parent may claim the dependency exemption if (1) the custodial parent signs a declaration that releases the claim to the exemption, and (2) the noncustodial parent attaches the signed declaration to the tax return for the year in question. Without this release, the noncustodial parent may not claim the exemption, despite the terms of a Judgment of Dissolution, or child custody or support order, and despite any written or verbal agreements between the parents.

It is important to note that the custodial parent does not have to use Form 8332 as long as the declaration conforms to its substance. However, the declaration requires certain information as specified by the Internal Revenue Code, which Form 8332 includes, so it is probably not a bad idea to use the form.

If the noncustodial parent is granted the dependency exemption for multiple years, the custodial parent may either sign a declaration each year or sign one release, with copies to be attached each year by the noncustodial parent. It is very important to know that the failure to attach the declaration to the tax return can be fatal, as the IRS takes no prisoners when it comes to this rule.

Another exception is when the family court orders the custodial parent to release the dependency exemption to the non custodial parent, which can happen in California and many other states. California has followed the majority view that state trial courts have jurisdiction to allocate federal dependency exemptions between parents when child support is at issue. Thus, in California, family courts often order allocation of the dependency exemption to the non custodial parent and order the other parent to sign the declaration, when it makes financial sense to do so. And it makes sense when reallocation of the exemption results in more child support to the custodial parent and more cash in the pocket of the parent ordered to pay child support.

In light of the intricate tax laws and where child or spousal support is involved, it does not make sense to proceed with filing your tax returns without the advice of an attorney or tax expert. In the instant case, we can see that Albert clearly was not entitled to the dependency exemption, but he may have been able to cure his problem by obtaining Cynthia's waiver (it never hurts to be nice to the other parent), or by going to family court to obtain an order.

Some Practical Advice

In summary, if you are a non custodial parent, paying child support, and you want to claim the dependency exemption on your tax return, consider the following:

1) Ask the other parent if he or she will agree to the release, and if so, be sure to have the declaration signed. Again, I would suggest you use Form 8332, so that you do not forget to include all of the information required by the Internal Revenue Code;

2) Be sure to attach the declaration to each year's tax return in which you are claiming the dependency exemption; and

3) If you cannot secure the custodial parent's cooperation, find out if it makes financial sense for you and the custodial parent to reallocate the exemption, and if so consider filing a request with the court that the exemption is reallocated to you. Obviously, there is no guarantee the court will agree with you, and you should consider the fact that the prevailing party may request and receive attorney's fees. Thus, it would probably be a good idea for you to speak to a competent family law attorney to help you decide if going forward with the motion would be in your interest. Written by Donald P. Schweitzer

We are proud to announce that on July 1, 2008, Donald Schweitzer was certified as a Family Law Specialist by the State Bar of California - Board of Legal Specialization.

The specialization process requires applicants to have had a specified amount of experience in handling family law cases, to have completed educational requirements pertaining to family law, as well as gathering recommendations from opposing attorneys and judges who have seen the applicant in action. In addition, the applicant must pass a rigorous examination, testing his or her knowledge and mastery of family law.

At the Law Offices of Donald P. Schweitzer we believe our clients deserve the best representation possible in handling their family law matters. As such, our staff is committed to meeting the highest of professional standards. Our experienced attorneys and paralegals are continuously trained and educated on the current issues of family law. It is our goal that by specializing and dedicating ourselves to family law cases, our clients will have the edge and benefit at every stage of their proceedings.

We congratulate Don on his dedication and commitment to earning this distinction.

If you would like to read more about the standards for certification for a family law specialist click here.

Posted by: Law Offices of Donald P. Schweitzer

Is it possible to be a widow, yet not a surviving spouse in the state of California? The answer is a resounding "yes," according to "Estate of McDaniels" (2008) 161 Cal.App.4th 458. Continue reading or click onto the above presentation for a detailed analysis of this case.

The facts of this case are interesting and tragic at the same time. Troy and Marie McDaniel were married in 2002. Unfortunately their relationship was volatile and dysfunctional due to the fact that Troy had a habit of abusing alcohol and losing his temper. It appears from the opinion that Marie filed for divorce following a domestic violence incident, which led to Marie obtaining a restraining order and Troy getting arrested.

After Troy was charged with committing domestic violence against Marie, she filed her Petition for divorce. Troy filed his Response in April, 2005 and the parties began work on a Marital Settlement Agreement. Troy and Marie signed Interspousal Transfer deeds to one another; concerning two properties they held in joint title. In addition, they signed a Stipulated Judgment of Dissolution that contained provisions to divide their community property and debt, waivers of spousal support, and waivers of their right to appeal.

The Judgment of Dissolution was filed with the court in June, 2005, and the family court promptly entered the judgment. The judgment provided that the parties' marriage would not be dissolved until October, 2005, which was six months from the date that Troy filed his Response (based on the cooling off period written into our divorce law).

In spite of the fact that Troy and Marie signed and submitted their Judgment of Dissolution, they were attempting to reconcile their marriage. The parties attended counseling and Marie accompanied Troy while he went to alcohol anonymous meetings. Troy and Marie also signed an agreement where Marie agreed to request that her restraining order against Troy be quashed and they agreed that would continue their marriage with love and respect, and that they would keep their divorce open but acknowledged that they could dismiss the action at anytime before October. Troy and Marie also signed a judicial counsel form, requesting the dismissal of the divorce, but they held off on filing it. According to Marie, they decided not to file the request until Troy made a court appearance concerning the domestic violence charges filed against him.

Based on the facts as presented in the opinion, there is no question that Troy and Marie were attempting to reconcile their marriage. Sadly, however, Troy died in a motorcycle accident in September, 2005. Troy was interstate at the time he died, meaning he had not prepared a will or trust concerning the distribution of his estate at the time of his death.

Probate Court's Findings

Since Troy died Intestate, his estate had to be distributed in probate court and in accordance with the probate code's manner of handling intestate cases. In probate court, Troy's mother filed a petition for entitlement of distributions, claiming that she and Troy's father were entitled to Troy's estate. Marie then filed an opposition, arguing she was entitled to Troy's estate as the surviving spouse because the dissolution was not final.

Marie lost in probate court. The probate court judge determined that Marie was not a "surviving spouse," per Probate Code, Section 78, subsection (d), which provides that:

"A person who was a party to a valid proceeding that ended in an order terminating all marital property rights does not qualify as a surviving spouse."

The Court of Appeal's Ruling

Marie filed an appeal, and argued to the appellate court that per Family Code, Section 2339, she was a surviving spouse since she was still married at the time Troy died. Family Code Section 2339 provides:

"A dissolution judgment does not terminate marital status until earlier of six months after date of service or six months after filing of Response."

Unfortunately for Marie, the Court of Appeal affirmed the probate court's ruling that she was not a surviving spouse. The Court held that even though Marie was technically married, she was not a surviving spouse per Probate Code, Section 78, subsection (d), based on the fact that the Judgment filed and entered in their case divided property and debt, waived spousal support, and waived the right to appeal. In rendering the decision, the Court cited the Estate of Lahey (1999) 76 CA4th 1056, where the parties had been legally separated at the time of the husband's death, and the wife was determined to not be a surviving spouse based on the terms of the Judgment of Legal Separation.

Should I get a Will?

One of the important lessons we can take from this case, is that parties should consider getting wills or possibly modifying their wills, during the dissolution of their marriage, which is permissible in California. Parties going through dissolution proceedings should also consider changing the way in which they hold joint title with their spouse.

In the instant case, we will never know if Troy would have wanted Marie to have all or a part of his estate. From the facts of this case we know that Troy and Marie were headed for a divorce. We also know, however, that they were seriously trying to reconcile their marriage. Thus, it is very possible that Troy would have wanted Marie to have taken his entire estate.

When I give advice to my clients I never tell them how to run their lives or make decisions for them concerning their personal affairs. I believe it would be improper as an attorney to tell my client that he or she should get a will during the pendency of a divorce, because it is a highly personal decision. It is important, however, that all of my clients understand the possible consequences of not having a will.

After reading this article, I hope you have learned that there can be real consequences for not having a will during the process of a divorce. If you have any questions about your rights to obtain or modify an existing will during your divorce, be sure to speak to a competent family law attorney.

Posted by: Law Offices of Donald P. Schweitzer

Millions of lives have been sacrificed for our right to vote. The right to vote is perhaps the most precious constitutional right we have. A right that should never be taken for granted. Yet, a teenager was recently caught trying to sell his vote on e-bay. Local law enforcement officers caught the young man and he has been charged with a law that has not been used in almost ninety years. The teenager claims he was only joking. The cops are not laughing and take the position that his acts were serious enough to warrant criminal charges. Have the authorities gone too far? What would the consequences be if people were allowed to sell their votes on e-bay? Join Attorney Donald Schweitzer in Studio B as he debates this issue with criminal defense attorney John Dolan. Posted by: Law Offices of Donald P. Schweitzer

A federal court has ordered the giant of all Internet companies - Google, to hand over documents concerning YouTube's viewing data to another media monster - Viacom. Viacom and Google are currently entangled in a no-holds barred lawsuit, concerning allegations of intellectual property rights infringements. Continue reading or click onto the above video presentation for a detailed analysis of this issue.

Viacom wanted the viewing data to help it determine the extent to which YouTube's success was built on the popularity of copyrighted clips that were illegally posted to the site. Google contended that YouTube's viewing data should be kept from Viacom to protect the privacy of its users.

Unfortunately for the millions of people who view YouTube videos, the judge granted Viacom's request. The court's ruling has caused many advocates of privacy rights to cry foul.

For the following reasons, I believe the federal judge was correct in ruling against Google:

The Court's powers to access records cannot be denied.

Like millions of Americans and other people around the world I love Google. I can say without a doubt that Google has been very good to me and my family law practice. And if Google wants to be viewed by it's customers as the champion of privacy rights, so be it. But, let's get real . . . , the court's access to private records under appropriate circumstances cannot be denied.

We cannot let people hide behind their computers to commit crimes or torts. It would be absurd, for example, to give a child molester safe haven to either post or view child pornography. It would be equally absurd to give a person safe haven to infringe upon the property rights of another, to commit defamation of character, or to violate someone's privacy rights.

No right is absolute!

The fact that the federal court did not buy into Google's privacy right argument comes as no surprise to those of us who go to court for a living and who know that the right of privacy is not absolute. Our courts are vested with the power to issue search warrants and subpoenas to allow lawyers access to private records. On every work day throughout America, judges are granting motions similar to the one filed by Viacom.

Within my family law practice, for example, I serve subpoenas for personal and employment records almost on a daily basis. Personal records frequently lead to hard evidence concerning the opposing party's true income for the purpose of paying child and spousal support. Likewise, data collected from the opposing party's computer usage can also lead to damaging evidence concerning the issues of child custody, community property, or domestic violence. Thank goodness for those incriminating little e-mails. There is nothing like cross examining a perpetrator of domestic violence as to why he thought it was necessary to send 40 messages to my client concerning her new boyfriend!

In case this information is beginning to scare you, keep in mind that our legal system allows parties the right to object to invasions of their privacy. In California, for example, before a subpoena for personal or employment records can be served, the attorney serving the subpoena must give notice to the opposing party and wait numerous days before sending the subpoena out for service. In addition, there are special rules when it comes to any attempt to obtain medical records, in which case the court is usually going to scrutinize the request for said documents. So if your ex is trying to get your phone records to obtain your friend's phone numbers, there are certain hurdles that need to be cleared before the court will release such records.

Can you say . . . , "protective order?"

There is nothing new about the possibilities of an attorney or party releasing confidential information. In the cruel world we live in, people misbehave and private information is often dispensed to people who have no right to the records. I'm sorry if I've just burst your bubble, but this happens all the time, especially in divorce cases.

Fortunately, the court has a pretty strong remedy to this problem. Courts issue "protective orders" that forbid the release of private documents to third parties and impose huge sanctions on people for violating such orders. And let us not forget the fact that an attorney's license could be in serious jeopardy for intentionally releasing such information, which is a pretty strong incentive for not violating the court's order.

Again, borrowing from my experience in litigating family law cases, I often find it necessary to obtain protective orders on behalf of my clients. In one case, where my client was an attorney who owned his own law practice, his wife demanded copies of all the records pertaining to his client's files. She purportedly wanted the records to assist her forensic accountant in determining the value and cash flow of his law practice. Obviously my client was concerned about the confidentiality of his client's files, especially since his wife was on the war path to destroy him. We could not get into court quick enough to obtain a protective order, which was granted without hesitation!

What about Viacom's underlying motives?

For the purpose of this discussion, Viacom's motives are irrelevant. Viacom has the right to our system of justice as any other company or person. It is, after all, the court's responsibility to ensure that Viacom does not release the information to third parties. If Viacom violates the court's protective orders, well, look out for an astronomical monetary sanction.

Be careful!

The bottom line is that the information obtained by Viacom will be safeguarded by a protective order restricting access to the data to outside lawyers or others. The lawyers representing Viacom will probably make sure the protective order is obeyed. Nevertheless, it behooves all of us to think twice about the sites we choose to view within the privacy of our homes. After all, the right to privacy is not absolute, and you never know who may get their hands on your records.

Posted by: Law Offices of Donald P. Schweitzer