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Posts Tagged ‘Creating Fair Settlements’

Property Division in “No Fault” Divorce?

Friday, October 9th, 2009

Even in “no fault” divorce states, fault is one of the factors which the court may consider in dividing assets. That said, most courts will divide assets and property evenly between the parties unless there is some overriding reason why a 50/50 division would not be appropriate. Generally the division will not vary by more than 10% based on reasons why the marriage broke down, or punishment for the spouse who caused the marriage to break down. The judge is concerned with dividing your assets according to the law, and in a way that’s fair to each of you. He or she is unlikely to be overly concerned about hurtful words, or even affairs, because such circumstances connote many marriages that fail. An experienced judge has heard innumerable tragic stories. Only an unusual or dramatic scenario captures the attention of most judges, a scenario that goes beyond an office affair or devastating argument.

The relative disinterest by the court in fault has changed drastically in the past 20 years. Previously, one of the main reasons for an unequal property division was fault. The reason that the marriage broke down was attributed to one party and the punishment for that was a lesser share of the marital property awarded that spouse. That scenario becomes less common over time.

By focusing on fault issues, you can lose your path toward your ultimate goal in the case. Trials and court procedures are not designed for vindication, revenge, or clearing ones name. They’re designed to divide assets fairly between two spouses, taking into account your individual circumstances. As unfair as it seems, fault rarely constitutes a reason in the court’s eyes for dividing assets unevenly. Accepting this now will save you much heartache later, as well as time and money. For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Working with Your Spouse
Posted in No Fault Divorce | Comments Off

Transfer of Property between Spouses

Tuesday, October 6th, 2009

The transfer of property between you and your spouse as part of your divorce is not a taxable event as long as the transfer takes place within one year after the date of your divorce. That means that all of the settlement issues you’re discussing in terms of who-gets-what won’t have any immediate tax consequences.

The non-taxability of transfers between spouses also applies to stocks, bonds, mutual funds, and any other property which you owned jointly and now one of you will own that same property separately.

Capital gains taxes and transfer taxes (in the case of real estate or other titled assets like (boats and cars) will apply if you later transfer that asset to a third party, either by sale or gift. Example: Bob and Jill jointly own a house which they purchased for $100,000, but is now worth $175,000. They also own stocks worth $50,000 which they bought for $30,000. Bob transfers the house to Jill and Jill transfers the stocks to Bob. Both assets have appreciated in value, as indicated above. Neither of these transfers triggers any tax.

Bob then sells the stock (to a third party) two weeks later to pay off some debts. He will owe capital gains tax on the $20,000 appreciation of the stocks, typically about 33%.

Jill sells the house two months later to a third party, as well. Because the appreciation is $75,000, she wouldn’t owe capital gains tax because the first $250,000 of appreciation is exempt from capital gains tax, but she would owe any transfer taxes which are assessed by her county or town.

For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Working with Your Spouse
Posted in Property Division | 1 Comment »

Creative Solutions with Your Mortgage

Friday, October 2nd, 2009

Let’s say your home is worth $100,000.00 and there is an $80,000.00 mortgage on the home, leaving $20,000.00 in equity. You and your spouse have agreed to divide your assets 50/50 and you are going to keep the house, but you are unable to pay your spouse for his or her $10,000.00 interest in the home. You agree to execute a mortgage in favor of your spouse that you will pay in a lump sum in 10 years. This mortgage will be documented by your attorney, who will draft the proper papers, and record them on the land records.

If, however, the housing market falls and your house is suddenly worth $70,000.00 when it comes time to pay this $10,000.00 mortgage, you must pay your spouse the $10,000 from the divorce agreement even though the value of the house is less than it was at the time of your divorce. This is also true even though the amount that you owe on the mortgages ($80,000 on the first mortgage and $10,000 on your spouse’s mortgage) may even be more than what you can expect to get for the house in the event you sell it. This is a risk that you take by not paying your spouse or dividing the asset immediately. Generally, real estate markets go up, but that isn’t always the case.

A creative way of dividing the equity in the house is for spouses to record a notice of equitable interest against the land records, which gives the spouse relinquishing his or her ownership interest in the house a right to a certain percentage of the equity in the house when it is sold. So, if you agreed that the house would be sold in 10 years and that each spouse would receive 50% of the equity, if the house was worth $70,000.00 in 10 years and the mortgage owed was still $70,000.00 in the example above, then your spouse would not receive any money, and you would not have to pay your spouse more than your house is worth at the time that the equitable interest becomes due.

Yet, if in the future the house is worth $300,000.00, and the mortgage has been reduced to $70,000.00, then your spouse would be entitled to share in one half of the $230,000.00 profit, even though he or she hasn’t been cutting the lawn or making the mortgage payments.

Sometimes, in these circumstances, the spouse remaining in the house accrues a certain amount of credit for the fact that he or she has performed the maintenance and paid down the balance on the principal owed on the mortgage over time. You may also wish to make provisions with respect to repairs and maintenance on the house, having you and your spouse share expenses for big ticket items such as the furnace, water heater and roof. If both spouses are to share in the appreciation of the house (or depreciation), they could both share in the maintenance costs.

These kinds of situations can get sticky emotionally and are not as straightforward as simply refinancing or selling the house at the time of the divorce, but they may represent a creative solution that will help you settle your case. For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Your Responsibilites, Your Rights
Posted in Divorce and Your House | Comments Off

Executing the Mortgage in Favor of Your Spouse

Tuesday, September 29th, 2009

If you are not in a position to refinance the house or pay your spouse immediately, and there are not enough assets to offset your spouse’s interest in the home, you might consider giving your spouse a mortgage on the home, or securing your spouse’s interest in the home using an equitable interest notice.

If you have determined what the spouse will be paid for his or her interest in the home, and the terms of the agreement, your lawyer can prepare a mortgage document to secure the spouse’s interest in the home in the land records. That way, even if you die, your spouse’s interest is protected.

A negotiating point will be whether or not the mortgage secured against the home will bear interest. Sometimes, it makes financial sense to pay your spouse interest on the mortgage which can accumulate if he or she has to wait a long period of time for the money rather than having to immediately sell or refinance the house. Understand, however, that even if the house value falls, you will still owe the amount of money set forth in the mortgage.

For example, let’s say your home is worth $100,000.00 and there is an $80,000.00 mortgage on the home, leaving $20,000.00 in equity. You and your spouse have agreed to divide your assets 50/50 and you are going to keep the house, but you are unable to pay your spouse for his or her $10,000.00 interest in the home. You agree to execute a mortgage in favor of your spouse that you will pay in a lump sum in 10 years. This mortgage will be documented by your attorney, who will draft the proper papers, and record them on the land records.

The next question is whether this mortgage will bear interest for your spouse. Your spouse is waiting ten years to get $10,000.00. If she or he forced you to sell the house, he or she would get money immediately. Having to wait for the money may mean that your spouse is not able to buy another house or condominium immediately and has to make certain sacrifices. In such situations, having the mortgage pay interest is a desirable option.

If the market goes up, and in 10 years the $100,000 house is now worth $200,000, you are still obligated only to pay the $10,000 (plus interest, if negotiated) agreed upon in the original divorce agreement. Your spouse then gets $10,000 (plus interest, if negotiated) and you keep the $190,000 value (less any outstanding mortgages) of the house. If the value of the house skyrockets to $300,000.00, you would get to keep all of the extra equity by virtue of the house’s appreciation, and you would only owe your spouse $10,000.00. For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at

http://www.peace-talks.com/resources.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Dealing with Your Spouse, Your Responsibilities, Your Rights
Posted in Divorce and Your House | Comments Off

Arrangements for the Sale of Your Home

Tuesday, September 22nd, 2009

If you intend to sell your house, contact a neutral real estate agent who can give you trustworthy advice about preparing the property for a quick sale. Ask the realtor to tell you the minimum number of repairs and maintenance items needed to make the house easier to sell. Keep track of your expenses for the fix up, and keep track of who does all of the work. Don’t do anything fancy or major to the house unless it is absolutely necessary, or unless you and your spouse unequivocally agree that the improvement will be financially worthwhile. For example, painting the hallway is inexpensive and easy to do on your own, and if it will help your house sell faster, do it. If you and your spouse can cooperate in this effort, then do it together. If you can’t cooperate in doing this together, see if you can arrange to divide the tasks so that each of you can work on the house separately.

Even if your spouse won’t participate, such tasks still need to be accomplished. Perhaps you and your spouse can agree on hiring a painting company or maintenance service person to do the work for you, and splitting the cost. Even if you have to do all of the work yourself, do it. A speedy sale for a higher price benefits both of you. It is silly to let a home deteriorate, or let a sale slip through your hands by refusing to fix a roof, because your spouse won’t help pay. Keep a list of everything you do, so that if your case needs to be tried you can tell the judge about it later, but try to remain practical and pragmatic for now. Continue to work towards a solution rather than create an impasse, irrespective of your spouse’s behavior. Don’t lose sight of the benefit you will bring to yourself by putting up with some inconvenience in the short term. For some information on how to sell your house quickly, see http://www.ourfamilyplace.com/homeseller/prepare.html. Also see, “How to Sell Your House Quickly in Any Market, http://ezinearticles.com/?How-to-Sell-Your-House-Quickly-in-Any-Market!&id=1750273.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Dealing with Your Spouse, Your Responsibilities, Your Rights
Posted in Divorce and Your House | Comments Off

Negotiations Once the Value of the House is Set

Friday, September 18th, 2009

Negotiating once the value of the house is set is a process that demands creativity and flexibility. Determine your priorities in advance of the negotiating process. In settling your case, you and your spouse can develop a plan that works for both of you. Generally, judges will approve any agreement which is basically fair to both parties. That means that you can be as creative as you wish with respect to the timing and provisions for the sale of the house and division of the equity.

Reasons To Sell

cannot afford mortgage payments
too much upkeep
too much money tied up in equity
too many memories
money owed to others (such as family loan for down payment) makes refinance or buy out impossible

Reasons Not To Sell

stability for yourself and children
ability to refinance or buy out spouse
sufficient diversity of assets, i.e., in addition to house equity you also have kept some liquid assets for emergencies and/or sufficient retirement funds given your age and employment
ability to maintain house
ability to make mortgage payments
tax considerations (deductibility of mortgage payments and capital gains)

If You Decide Not to Sell: Joint Versus Sole Ownership

You and your spouse have two choices concerning the ownership of the house. You can continue to own the home jointly, or one of you can own it in one sole name. Although joint ownership may continue after a divorce, in practice this is sometimes inconvenient. It keeps one spouse from mortgaging or selling the property without the other spouse knowing, but it also can create friction between divorced spouses who may have different priorities with respect to the upkeep and maintenance of the home.

If one spouse retains ownership, that spouse is entitled to make all decisions concerning the property, free from any interference from the other spouse. While this may not seem like a benefit initially, five, ten or fifteen years later the benefit of having autonomy with respect to the home ownership becomes more tangible.

Ownership of the house is different, or can be different, than the responsibility for paying the mortgage. If both you and your spouse have signed the bank papers to be responsible for the mortgage, merely signing the title of the house over to one spouse does not relieve the other spouse of his or her responsibility to continue paying the mortgage. Refinancing the home mortgage in the sole name of the spouse keeping the house is the safest way to protect the spouse who won’t be occupying the home. If refinancing is impossible or impractical, your lawyer can help you build language into the agreement to protect the spouse who has relinquished his or her interest in the house from having to pay the mortgage. For some excellent resources on dividing the marital home in divorce, see http://www.womansdivorce.com/marital-home-and-divorce.html. Also see the Peace Talks resource center at http://www.peace-talks.com/resources.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Dealing with Your Spouse, Your Responsibilities, Your Rights
Posted in Divorce and Your House | Comments Off

Determining the Value of the House

Monday, September 14th, 2009

Determining the value of your house may help you make the decision about whether or not to sell. Determining its essential value is easy if the house is on the market for sale, and a willing buyer offers a price that both you and your spouse feel is fair. The ultimate value of your house is what someone is willing to pay you to buy it. At the closing, the mortgage and any liens are paid off, you pay the realtor’s fees, and the leftover money is the net equity. That’s the amount you and your spouse divide.

If you are not going to sell your house, or you are uncertain, you can have it professionally appraised. Since the 1980s real estate boom and crash, few people have a realistic idea of what their home is worth. Their sentimental attachments interfere with their ability to accurately assess its value.

Real estate agents may offer to appraise your home for free, but beware. These same agents may realize that you are divorcing, and may want the listing on the house in the event that it’s sold. In order to entice you to do that, they may artificially inflate the value of the home, in an effort to woo you into listing the property with them.

How to select an appraiser with your spouse

If possible, select an appraiser with your spouse. Ask for a referral from a trusted real estate agent, friend who has recently sold or purchased a house, or your lawyer. If you each know an appraiser but cannot agree on which appraiser to use, you may ask your appraisers to make a recommendation. If you can agree on an appraiser, you can split the cost, which poses an obvious advantage. By choosing one appraiser, rather than each hiring your own, you avoid “dueling appraisers” who testify against each other at a trial, a time-consuming and expensive approach.

If you cannot agree on one appraiser, and each hire your own, choosing a respected appraiser who assigns a fair value to your home is generally the best strategy. If your case proceeds to trial, you’ll need an appraiser who is respected in the professional community and who has experience testifying in court. An unscrupulous appraiser who assigns a disproportionately high or low appraisal value to your home to please you may not be able to justify that value in court. Judges do not take kindly to parties who try to unduly bias the Court in their favor. Such shading of the truth then undermines your case.

Once you have a fair appraisal, you can then work with the value of your home in further dividing your assets. For some terrific resources about selling when getting a divorce, see http://homebuying.about.com/od/sellingahouse/qt/0307DivorceHome.htm. Also see the Peace Talks divorce resource center at http://www.peace-talks.com/resources.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Dealing with Your Spouse, Your Responsibilites, Your Rights
Posted in Divorce and Your House | Comments Off

Sell or Keep the House?

Thursday, September 10th, 2009

One of your first big decisions in your divorce is whether or not you can afford your house or apartment after the other spouse moves out, and if so, whether you want to continue to live there. The last thing that you and your spouse need is an unmanageable property that neither of you can afford. By the same token, don’t make any rash decisions. You can always give up an apartment or sell a house later, but you probably won’t be able to re-rent the same apartment or re-buy the house after you give it up.

Even if you can afford the house and want to live there, can you mow the yard and do the necessary repairs without your spouse to help? Is there too much space? Are there too many memories? Are you able to afford it, but it will take so much of your monthly income that you won’t be able to do anything besides pay the mortgage or rent and buy groceries? Is that a lifestyle you can accept? For an excellent article on whether to see your house, see http://parenting.ivillage.com/mom/structure/0,,t7f,00.html.

When Edith got divorced, she wanted the house. She and Charles had renovated it themselves over the last 10 years, and she’d personally picked out all of the details, from the paint color to the door knobs. When Charles said he was leaving, she felt the house was her only solace. It was a comfort to her, but only for a time. Within two years she realized she was rushing home from her job every day to mow the yard, wait for the washing machine repairman, and to clean. She barely had enough money left every month to go to the movies, and most of her “savings” were tied up in equity in the house. Two years ago, the house had been a comfort. Now it was a liability! She sold the house and moved to a condominium, and now has free time and money to enjoy herself.

If either you or your spouse can afford to stay in the home, and there is a sentimental reason or attachment to the home, or you want your children to stay there, you will need to begin thinking about who will be staying in the home. Once the decision about who is staying in the home is made, then the question becomes how to divide the equity in the home. For a good practical article, see http://www.divorce360.com/divorce-articles/debt-and-credit/mortgage/need-to-sell-your-house-in-divorce.aspx?artid=899.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Dealing with Your Spouse, Your Responsibilites, Your Rights
Posted in Divorce and Your House | Comments Off

Dissipating Assets

Tuesday, September 8th, 2009

With respect to stocks, bonds, mutual funds and other related cash assets, refrain from spending until after the divorce. If you suspect that your spouse may dissipate assets, write a letter to your broker, bank or financial institution immediately informing them of your impending divorce, and that you will not authorize withdrawals on any accounts without both signatures verified against the original signature cards at the institution. Once you’ve initiated the divorce, seek a court order freezing the assets in all of your accounts except for day-to-day living expenses. In some states, like Connecticut, these orders are automatic upon the filing of the divorce.

You are under the court’s microscope with respect to dissipating assets. If you need to use any of your savings to pay bills, make sure there is not a court order already in place prohibiting you from doing so. If there is, and you need to use some of the frozen monies, you must first obtain the Court’s permission. If you are permitted to use your assets to pay ordinary and necessary living expenses, keep records of how the money was spent, as well as a record of why the living expenses were ordinary and necessary. If the judge perceives you as dissipating assets, you may have a real problem at subsequent court proceedings or a trial. For a good article on dissipation of assets, see http://www.divorcedex.com/divorce/Dissipation-of-Assets-321.shtml.

Don’t plan on being tricky by closing accounts and then diverting the money to an untraceable account. All a judge needs to see is a bank statement with, say, $5000 two days before you filed divorce papers, and then a $5000 withdrawal two months after, with no disclosure concerning the whereabouts of the money, to determine that you’re a money-hider. If a judge believes you’ve hidden even a small amount of money, the next question will be “how credible are the rest of this person’s representations?”

Because you are under a microscope during your divorce, keeping a paper trail of how you spend your money is important. Keep a notebook in which you record all major financial transactions, including receipt or payment of child support, medical bills for the children, any savings that you utilize or any accounts that you cash out, bank statements, credit card statements, and so forth. You aren’t necessarily going to need these records, but if you do need them, you aren’t going to want to have to dig around the bottom of a shoe box or call MasterCard in order to find them. You can always throw the paper trail away later if you do not need it. Another terrific article on dissipated marital assets appears at http://www.womansdivorce.com/dissipated-marital-assets.html.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Your Responsibilities, Your Rights
Posted in Dividing Assets | Comments Off

Cash, Stocks and Other Assets in a Divorce

Tuesday, September 1st, 2009

Also consider tax ramifications. When cash assets such as stocks gain in value, that added value becomes taxable as capital gains. The tax becomes due in the year that you sell the asset. If you bought IBM stock at $25 per share, and now it’s worth $75 per share, the taxable gain is $50. At a 33% federal tax rate, that is a tax of $16.50, so your $75 stock is really worth $58.50. Tax ramifications make a great impact on the true value of an asset, and should influence your choices. Contact an accountant if your lawyer cannot answer your tax questions. You may want to speak with a divorce financial planner, see https://www.institutedfa.com/ReferralSearchPage.aspx.

Cash in the checking or savings account, CDs in the bank, stocks, bonds, and mutual funds, 401k contributions and pension funds are subject to scrutiny and possible division by the court. Consider how you hope to use these assets in the future before deciding how and when they are divided. If you need to put a security deposit down on an apartment, you’ll want to have access to this money quickly. If you are saving for retirement, you won’t need the money now, and it would be desirable to invest it. Your goals should dictate how important issues such as liquidity, immediate and long-term tax ramifications, and the safety of certain investments are to you.

Liquidity

When you are dividing up stocks, bonds and cash assets, keep in mind that some investments are more liquid than others. Some may be available more easily than others in the event of an emergency. Your house and pension may be the least liquid of all of your assets. Be sure that you understand the ramifications of your choices for the mix of assets you are dividing, in terms of their liquidity.

Do Not Make Knee Jerk Decisions

Emotions can take over decision making during the upset of a divorce. Don’t squander assets or make foolish investment decisions during this critical period. Preserve your money so that the courts can help you and your spouse divide your assets appropriately. You can spend the rest of your life determining how best to invest your money, and what purchases to make.

Now is not the time to make big monetary decisions about how you want to live your life after the divorce. Too many clients exclaim, “well, if my spouse gets the house, then I want a house that’s just as nice, and just as big.” That same client immediately buys a house which is just as nice and just as big, using every available dollar to do so, taking on a huge mortgage. What if your feelings change a few months after the divorce is over, you decide to pursue a job in another state, or meet someone new who already owns a house? No matter what you’re thinking about where and how you want to live after the divorce, those thoughts and feelings will likely change over time. Read up on the effects of divorce in the years to come in one of the many excellent books on the topic, see http://www.peace-talks.com/books.php.

For more information contact Peace Talks www.peace-talks.com
(C) 2008 Peace Talks Mediation Services, Inc.

Tags: Creating Fair Settlements, Divorce Financial Planning
Posted in Dividing Assets | Comments Off

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Posts Tagged ‘Creating Fair Settlements’

Property Division in “No Fault” Divorce?

Transfer of Property between Spouses

Creative Solutions with Your Mortgage

Executing the Mortgage in Favor of Your Spouse

Arrangements for the Sale of Your Home

Negotiations Once the Value of the House is Set

Determining the Value of the House

Sell or Keep the House?

Dissipating Assets

Cash, Stocks and Other Assets in a Divorce