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Yours Alone or Community Property

Tuesday, August 25th, 2009

If a business increased in value because the businessperson devoted time, skill, and expertise, then the business will be considered community property. Examples include an interior decorating business, software development, and other labor-intensive businesses.

Professional licenses are not subject to division, but can warrant alimony orders to even-out the earning power of the spouses.

To the extent that you intend to prove that an asset is your separate property, or that although an asset was purchased while you were married it was purchased with separate property, be prepared to present documentation which traces the source of the funds used to acquire the asset. If you have kept your property separate, you have a good chance of it remaining separate property for purposes of a community property state divorce. If you’ve intermingled separate property with community property, the court may find that you intended to give a gift of that separate property to your spouse, or that, at best, you’re entitled to reimbursement (without interest) for your separate property’s contribution to community property.

For instance, if you owned a rental property prior to your marriage and kept the rental income separate from any marital funds, in a bank account in your sole name, and used only the rental income to improve the rental property, then the rental income will be considered to have remained separate property, even though it accumulated during your marriage.

While the details of property division can become a bit confusing, keep sight of the initial premise: if it accumulated during your marriage, it’s probably community property. If you intend to claim otherwise, be prepared to prove it.

If property accumulated during your marriage, it’s probably community property and will be divided 50/50. If you intend to claim otherwise, be prepared to prove it. If you have questions, you may choose to meet with a divorce financial planner. See https://www.institutedfa.com/ReferralSearchPage.aspx. For resource on the financial aspects of divorce, see http://www.peace-talks.com/finformation.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, Your Responsibilites, Your Rights
Posted in Property Division | Comments Off

Community Property States

Friday, August 21st, 2009

The remaining nine states are Community Property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. This means that, with a few exceptions, only property which was accumulated during the marriage will be divided, and that property will be divided 50/50, asset by asset, whenever possible. Wages, income and bonuses are community property, as is credit obtained during the marriage. Therefore, homemakers are not penalized by not working outside the home, and claims of “I earned all of the money, so all of the property is mine!” aren’t considered by the court. Property which accumulated to either of you prior to the marriage, or during the marriage through a gift or inheritance, or by virtue of appreciation or rents from other pre-marital property is considered “separate property” and is not subject to division by the court (again, with some exceptions).

In Community Property states, the main exceptions are:

when one spouse receives a community property-funded education, the community property used to fund that education will be reimbursed for the educational expenses, unless both spouses received a community property funded-education, more than 10 years has passed since the education was completed, or the marital community has benefitted in some other way. Any educational loans taken out for educational expenses are the responsibility of the person who received the education.
when liabilities exceed assets.
when one spouse has misappropriated family assets. Oddly enough, this does not include excessive gambling debts, as all debts incurred during the marriage are considered marital debts, irrespective of whether one spouse had the permission of the other spouse to incur the debt.
lawsuit liabilities for injuries. For lawsuit liabilities, who has to pay depends on whether the accident happened in the course of “marital business”. For example, if you are involved in an accident while driving to the store to buy groceries, then the liability is paid from community assets. If you get in an accident while on your way to meet a friend for a social outing, the liability is paid from your separate property.

For people with children and a family home, the family home may be awarded to the custodial spouse, and the other spouse may receive other assets to compensate for giving up an interest in the home.

Businesses started prior to the marriage present a special problem. The division depends upon whether any increase in the business value is due to the nature of the business, or the businessperson’s special efforts. If the business has increased in value because of the nature of the business, then the business is generally separate property. The leading case in this area of law is VanCamp, pertaining to the divorce of the VanCamps of pork & beans fame. Their business value increased drastically during World War II just because of the nature of the business, i.e., canned food during wartime. Such a business was maintained as separate property.

For a host of free divorce information, see http://www.peace-talks.com/resources.php. A list of other resources is available at http://www.peace-talks.com/divorceinformation.php.

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

Tags: Divorce Basics, Working with Your Spouse, Your Responsibilities, Your Rights
Posted in Property Division | Comments Off

Distributing Property in an Equitable Division State

Tuesday, August 18th, 2009

If you had substantial property prior to your marriage, or you inherited substantial property during the marriage, you may be able to preserve this property as your own, separate property even in an equitable jurisdiction state. Be prepared to prove ownership and how you acquired the property, and be sure to give this information to your attorney early in your case.

The following is a checklist of facts and factors for distributing property in an equitable division state:

age
health
education
ability to earn income in the future
ability to accumulate assets in the future
special needs of children
parenting needs of children
contribution to assets
separate property
inheritances, gifts, and family loans
appreciation of joint and sole assets over time
liquidity of funds
tax ramifications
pre-marital contributions
non-monetary contributions

The better prepared you are, the more likely you are to feel that your settlement is fair. For a list off good books on the divorce process, see http://www.peace-talks.com/books.php. Also, be sure to 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, Divorce Basics, Working with Your Divorce Lawyer, Your Res, Your Rights
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Other Factors Influencing Property Division

Wednesday, August 12th, 2009

Other factors that can influence property division are how long you have been married, how old each of you are, what your health is like, what your educational backgrounds are, your prospects for future income, whether or not the judge thinks that the spouse ordered to pay child support and spousal maintenance will actually pay the orders, and a variety of other factors. Inheritances and money that each spouse contributed to the marriage are often important as well. Be sure to bring these matters up with your lawyer and discuss what they mean in your particular case, given your state’s laws. While each case is decided individually by the court, your lawyer can give you an idea of how judges in your state would consider each factor, and how that would translate into property distribution in your case.

Courts recognize non-monetary contributions to families just as they do monetary contributions. Housewives, stay-at-home moms, stay-at-home dads, and spouses who contributed to the family in non-monetary ways are recognized along with spouses who contributed to the home with salary, inheritance, or savings.

Don’t expect the court to do a dollar-for-dollar accounting of all money earned and spent by each spouse.

Most courts will assume that while you and your spouse were married, you made certain decisions together in the best interests of your family as a whole. The Court will not second guess those decisions by punishing one spouse for not working, or for not earning as much, unless those are material issues in your case. For example, if the reason your spouse didn’t work is because he or she had a drug problem, the Court will likely consider that unfavorably toward your spouse in the property settlement. If your spouse didn’t work because he or she stayed home with the children while you advanced your career, the Court will view that spouse as an equal contributor to your family assets, even though his or her contribution was not monetary. It is not the Court’s purpose to unravel every financial transaction during your entire marriage to decide who contributed exactly how much money, who purchased which item of furniture, and who worked the most hours, thereby creating a disparity in earnings. It may be helpful for you to work with a divorce financial planner. To find one near you, see https://www.institutedfa.com/ReferralSearchPage.aspx. See the financial section on the Peace Talks website at http://www.peace-talks.com/finformation.php.

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

Tags: Creating Fair Settlements, Divorce Basics, Working with Your Divorce Lawyer, Working with Your Spouse, Your Responsibilites, Your Rights
Posted in Property Division | 1 Comment »

Property: Equitable Division of States

Monday, August 10th, 2009

Forty-one of the fifty states are Equitable Division states (i.e., every state except Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin). That means that the court has the ability to order that any property belonging to either you or your spouse may be subject to division by the court. The division is based on what the court determines to be fair, hence the name “equitable division.” All property acquired during the marriage is subject to division, as well as property which was acquired prior to the marriage by either of you individually, gifts from one family, inheritances, personal injury lawsuit settlements, bonuses, pensions, stock options and other assets which you have value to you.

Typically, most courts will focus on dividing the assets which accumulated during the marriage rather than those which accumulated prior to it. Pre-marital assets may be subject to division, however, depending upon the individual circumstances of your case.

For example, if you and your spouse have $150,000 in assets which accumulated during the marriage, both of you are in good health and have decent jobs, and your children are healthy and don’t require any special care, then the court will focus first on dividing those assets. Assets which each of you accumulated prior to the marriage will be considered, but if dividing the marital assets will provide each of you with a reasonable settlement, then several thousand dollars of pre-marital savings or property is probably “safe” from the court’s orders.

If, on the other hand, one of you has $100,000 in premarital savings, and together the two of you accumulated no assets, but $20,000 in credit card debt, it is likely that a court will order a portion of that $100,000 to go to the other spouse, and to pay the credit card debts. For information about finances and divorce, see http://www.peace-talks.com/finformation.php. You may also find it helpful to work with a divorce financial analyst, see https://www.institutedfa.com/ReferralSearchPage.aspx.

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

Tags: Creating Fair Settlements, Working with Your Lawyer, Working with Your Spouse, Your Responsibilites, Your Rights
Posted in Property Division | Comments Off

More Alimony Considerations

Friday, August 7th, 2009

Someone in the 28% federal tax bracket, every $100 in alimony paid “costs” only $72 because of the tax savings. If the recipient is in the 15% tax bracket, each $100 received means only $85 is truly realized because of the taxes owed. As you can see, there’s a gap of $13 which is the IRS’s way of helping divorcing couples make ends meet. By utilizing alimony effectively, the couple saves $13 in taxes for every $100. Many state tax laws also provide for alimony deductions on top of the federal deductions. If your and your spouse’s incomes are unequal alimony may help you both save money, so explore the tax ramifications of an alimony order, both individually and as a couple. Alimony can help keep money in your collective pockets rather than in the hands of the IRS. As much as spouses dislike giving alimony to each other, giving it to the IRS is even less popular!

If you have children, and paying alimony in addition to child support is a possibility, the IRS has another vehicle by which you may take advantage of tax provisions called “Unallocated Alimony and Support,” which is a special combination of alimony and child support — all of which is deductible by the paying spouse and taxable as income to the receiving spouse. If your incomes are very disparate; for example, if one of you stays home with the children and does not earn an income, then this option may make most sense for you.

Courts have also modernized alimony in creating “rehabilitative alimony” or limited term alimony. Rather than have alimony continue for the rest of one’s life, as was typical 20 years ago, courts nowadays are considering orders which last for a specific period of time and then terminate. For example, in the case of a woman who has taken time off from her career as a teacher to raise 2 children, now ages 3 and 5, the court might award alimony for four years. During that 4 year time period, the woman has an opportunity to renew her teaching license, look for a job, and establish the children in school. By the time the 4 years pass, she should be in a much better position to support herself, without further need for alimony. Without a reasonable reprieve (in this example, 4 years), she may be unable to find a job immediately because her teaching license or education is out of date, she might be unable to find reasonably priced daycare for the children, and the children would be forced to adapt to a sudden change of living circumstances. Even a few years of modest alimony helps this situation immensely.

On the other hand, there are also traditional cases in which women who have made their lives as housewives find themselves 30 years later without a pension, 401K, or even a job. Many of these women married in college, or before college, and never finished their education. Some have never worked outside of the home, and find themselves for the first time without financial support. Because of their family work and skills, their husbands were able to further their careers without having to worry about keeping house or daily arrangements for the children. At age 55, finding a first job is extremely difficult. Alimony in this type of a scenario is more likely to be ordered for an indefinite period. For some terrific resources on divorce and money, see http://financialplan.about.com/od/divorceandmoney/Divorce_and_Money.htm. Also see the Peace Talks website’s financial information at http://www.peace-talks.com/finformation.php.

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

Tags: Divorce Basics, Working with Your Spouse, Your Responsibilites, Your Rights
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A Few Other Considerations for Alimony

Tuesday, August 4th, 2009

For most divorcing spouses in states which recognize alimony awards, alimony is a hot emotional issue. In a typical scenario, the husband pays the wife alimony. The longer the marriage, the more likely alimony will be awarded. For the husband, it is difficult to stomach paying alimony when you feel that you earned most of the money anyway. While you may feel that she never did much to help you at the office or with the children, she feels that she was your “right arm”. As the wife, you may feel that you deserve all that he is worth and could be worth someday, since you supported the family during his education, early career, or even while he amassed his profits. You feel he couldn’t have reached his current status without you, while he insists that you undermined him at every turn and did precious little to further his achievements.

Anyone who is required to pay alimony after his or her spouse decided unilaterally that he/she wanted a divorce tends to feel doubly hurt by the system. It is painful to pay someone a substantial part of your income while you are in the throes of divorce and related conflicts, and you’d prefer to spend your money on your children, new partner, or yourself. Almost all partners feel that they are the generous spouse, and their partner is being unreasonable during the divorce process. Therefore, the subject of alimony adds salt in wounds that are already searing. It helps to remember during this time that alimony is a potentially versatile and cost-effective way to help settle your case. Often clients say, “I don’t want to pay a dime of alimony!” only to realize later that the “dime of alimony” is actually the cheapest, most sensible alternative. It is one method of equalizing assets over time; it is not the only way, and if it can be thought about calmly and with creativity it can be a useful tool for a successful divorce. For more divorce financial information, see http://www.peace-talks.com/finformation.php.

For example, many people do not realize is that, for tax purposes, alimony is deductible for the person who pays the alimony, and included in income for the person who receives alimony. You must consider the tax ramifications of an alimony order before deciding whether it makes sense for you. An alimony order can save a couple a great deal of money. In other cases, what you hope to gain, given the tax ramifications, is not worth the fight to get it. For some terrific information on divorce financial planning, see

http://www.divorcesource.com/info/financialplanning/financialplanning.shtml.

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

Tags: Divorce Basics, Your Responsibilites, Your Rights
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Alimony

Thursday, July 30th, 2009

Alimony, or spousal maintenance as it’s known in some states, is a legal mechanism by which the court acknowledges that two people make up a marriage partnership, and that the earning power of the two people is rarely equal. Sometimes one of those people sacrificed a career, education, or job track in order to fulfill an unpaid role in that partnership. In some cases, an injury or illness contributed to the lesser earning capacity of one of the two partners.

Alimony is not available in every state, with Texas being the forerunner in abolishing alimony. All states reserve the right to make asset divisions based (at least in part) on the earning capacity and future prospects of the spouses. Even if a state doesn’t allow alimony, it may allow other provisions in order to even out the spouses’ financial positions, i.e. no alimony but a larger share of the equity in the house or cash savings. For a good article highlighting frequently asked questions about alimony, see http://www.divorcesupport.com/divorce/Spousal-Support-1423.html.

Both men and women are entitled to alimony in those states which permit alimony awards. Alimony awards are not gender based, but rather, follow broad categories:

age
health, both mental and physical
education
income
future prospects for income and employment
separate property which may be used for support
the desirability of a parent not working for a length of time (e.g., when children are young)
length of the marriage
reasons for the breakdown of the marriage
contributions to the household, both monetary and non-monetary

Alimony is considered to be an income substitute. You need not have children to be entitled to alimony. It is determined based on both spouses’ incomes, the factors listed above, and a determination of the relative importance of each of the factors for each case. It’s therefore impossible to predict how much alimony may be awarded in a given case. Some jurisdictions have a rule of thumb, and experienced lawyers can give you an estimate of the amount you might receive. But unlike child support, which is determined by law, alimony is completely negotiable. Alimony typically ends upon the death of either the payor or the recipient, but all other details are subject to your own design. Some (mix and match) provisions which can be included:

alimony terminates upon the remarriage of the recipient
alimony terminates upon the cohabitation of the recipient with another adult under circumstances which are tantamount to remarriage, but without the ceremony
alimony terminates after a specific number of months or years
alimony is for a decreasing amount each year (subject to some tax rules), i.e., $15,000 the first year, $10,000 the second year, $5,000 the third year, and terminates after year three
alimony is not awarded at the time of the divorce but is an issue kept open for modification later if circumstances change
alimony is modifiable in the event of a substantial change in circumstances, or modifiable only under certain, pre-defined circumstances, such as a physical disability
alimony is not modifiable by either party for any reason
alimony is not modifiable unless either party’s income changes by a certain amount or percentage; e.g., to encourage a non-working spouse to begin working, alimony might be modifiable only if that spouse’s gross income exceeds $20,000 a year

Alimony thus can be tailored to fit many situations. In some cases, it may never terminate; in others, triggering events can be specified which will mark a termination. Think about what you want to accomplish through alimony, and then negotiate to tailor your plan to fit those needs. For a host of information on spousal alimony you may find helpful, see http://www.womansdivorce.com/spousal-alimony.html.

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

Tags: Divorce Basics, Your Responsibilites, Your Rights
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Legal Issues During the Waiting Period

Tuesday, July 28th, 2009

During the waiting period, you begin to resolve each of the issues germane to divorce. You are thus working toward a fair settlement for the post-divorce period. Two categories of issues must be resolved: financials, and if you have children, issues related to legal custody and parenting arrangements.

Financials

alimony or spousal support
personal property
division of liquid assets: cash, stock, and bank accounts
division of retirement accounts and pensions, stock options and less liquid assets
whether or not to sell the house and other real estate
who will keep the house and other real estate if it is not to be sold
tax issues
child support, medical insurance, and tax exemptions for children

Parenting Related

legal custody and parenting schedules
special provisions concerning children: medical expenses, college, extracurricular activities, private school and the like

Considerations Before Settling

what do you believe is in the best interests of your children?
can you handle all of your new responsibilities?
have you considered all of the tax ramifications?
have you considered the mix of assets you’ll be receiving: liquid vs. non-liquid, and does the settlement meet your immediate needs?
does the settlement set you on the right path for your long term needs?
can you live with the proposed settlement, even though your not completely satisfied?
will a trial cost more emotionally and financially than what you hope to gain?
if you cannot settle, will what you’re fighting about matter in 5 years?

Agree upon what to tell family and friends so that there is no misunderstanding about what the living arrangement signifies.

Making sure you are prepared and know all your options will help things go much more smoothly for you and your family. Be sure to visit the Peace Talks resource center at

http://www.peace-talks.com/resources.php. For basic divorce information, see http://www.peace-talks.com/divorceinformation.php.

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

Tags: Working with Your Spouse, Your Responsibilites, Your Rights
Posted in Legal Separation | Comments Off

Staying Together While Separated

Friday, July 24th, 2009

There are psychological and practical advantages and disadvantages to staying in the same house. The advantages include saving money, having time to organize your lives for an easier separation, having time to talk to your children, and providing support to each other on a daily basis. This way of living requires a friendly situation at best, or one in which tensions are squelched for your own or your children’s benefit. If your situation is not civil, however, it is complicated and painful to face each other every day and manage the ’good face’ that such arrangements require. Staying in a tension-filled living situation can exacerbate stress and magnify the ways in which spouses annoy and frustrate each other. For some tips on getting through living together during your separation and divorce, see http://get-divorce-advice.com/separated-but-living-together-how-to-get-through-it/.

Certain situations support separating sooner rather than later. If your spouse is continuously putting you down, berating you, abusing you, or manipulating you into being frightened, meek, or withdrawn from family and friends, then staying in the house is likely to have negative consequences for your children and for you. If your spouse is involved in illegal activities, or is self-destructive, such as a compulsive gambler or cheat, then staying can only have negative consequences unless you both get professional help. If your spouse has a disabling mental illness that causes him or her to act erratically in ways that could put you or your children in danger, that is a painful but potentially necessary reason for leaving. Finally, if your spouse is hurting your children in any way, then leaving immediately must be seriously considered.

Separating might be a temporary solution. Sometimes just taking this action breaks old patterns like taking each other for granted. It introduces fear, and provides an opportunity to experience what life will be like without each other. Is it relieving, barely noticed, or does it compel you to re-think all of your reasons for leaving? If you separate, you must stick with it long enough to pass through the immediate aftermath — the loneliness, demands, threats, promises for change, and bouts of intimacy that wreak havoc in the early separation period.

Ellen and Harry lived in the same home during their divorce process. Harry set up a bedroom in the basement, and the children moved freely between the two floors on which their parents lived. They each planned to stay out of the home on alternating evenings, so that they did not interact except when the children were asleep. Despite this plan, mounting tensions during the legal process were taking their toll, especially on Harry. He felt he did not have a real home, and that the children did not respect his being ’banished’ to the basement. Harry reported feeling depressed and anxious, to the point that he was not managing himself successfully in the workplace. He wondered if the money he was saving was worth it, and whether being with his children in this way ultimately undermined his relationship with them. For more legal separation tips, see http://www.womansdivorce.com/separation-advice.html.

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

Tags: Divorce Basics, Your Responsibilites, Your Rights
Posted in Legal Separation | Comments Off

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Posts Tagged ‘Your Rights’

Yours Alone or Community Property

Community Property States

Distributing Property in an Equitable Division State

Other Factors Influencing Property Division

Property: Equitable Division of States

More Alimony Considerations

A Few Other Considerations for Alimony

Alimony

Legal Issues During the Waiting Period

Staying Together While Separated