Category Archives: Divorce

Tax Implications to Consider Following a Divorce

tax-implications-to-consider-following-a-divorce

Going through a divorce is not an enjoyable experience to say the least. It is one of the most stressful things that two people will ever have to go through in their lives. When a couple decides that it is time to go their separate ways, they have a lot to think about, a lot of decisions to make. They have to think about their kids and where they will go, what to do about their house, their pets, other assets and so on. One other thing that has to be taken into account is the tax implications that come into play when you are talking about a divorce.

Taking care of things on the tax side is pivotal:

Settling on Property

One of the tax implications that goes along with a divorce is that of figuring out what to do with property from a tax perspective. It is far more difficult to figure out tax implications relating to property than it is dividing up the property in the first place. Certain assets, such as a home with a mortgage, are going to have tax liabilities or benefits, while others may have no tax implications at all.

Child Support

Child support payments are not deductible on your personal income tax return, no matter what other people may actually tell you. So when you are paying child support, do not do so thinking that you are going to be able to get a deduction as a result of it. This can cause issues with the IRS when you try and use these things to take away from your taxable income.

Tax Exemptions

When you have children you have the ability to get tax benefits and exemptions. A child can get you an exemption of thousands of dollars and figuring out who is going to be able to claim the children and the exemption or exemptions is very important. Generally whoever has custody of the children is going to be able to include them on their tax return.

Alimony Payments

Alimony payments, contrary to child support payments, are something that is tax deductible. If you are the person that is paying out the alimony payments, you get to deduct these to reduce your taxable income.

Tax implications relating to a marriage are important to pay attention to. There are just so many different areas where taxes can come into play. When you are talking about property, alimony, child support, understanding how to file your return and what you can deduct and not deduct is pivotal to accurately settling with the Internal Revenue Service.

Your Child and Your Divorce

your-child-and-your-divorceDivorce will always be the end of something to which your child or children are accustomed, but this transition often brings plenty of positive changes. With a little help from the countless experts devoting their studies to helping everyone involved in this kind of situation, you can showcase the good coming from this change and diminish its more worrisome effects. Following these tips should improve you and your children’s abilities to stay positive through the trying times to come.

Inspire straightforward, positive and open communication

Solid communication between everyone involved is the key to making the best of this situation. Experts agree that the level of hostility between parents is one of the most influential factors for children coping with divorce. Regardless of how things ended with you and your ex, you both need to put work into keeping your relationship strong and honest.

Your child or children must also be given a voice. Encouraging children to talk it out with someone empowers them, which is vital for them when facing such a potentially stressful future. Not listening to them incurs the opposite effect, and any loving parent can see why essentially taking away the child’s voice at this time would be plain awful.

This includes both parents’ ability to avoid “sugarcoating” anything. You cannot make excuses for your ex or the situation, but you also don’t want to blame or insult your ex, either. “Badmouthing” your ex is a lose-lose-lose situation. Your child will think less of one, if not both of their parents, and possibly feel worse about themselves in turn. Both “badmouthing” and “sugarcoating” can put your child or children in situations where they feel like they have to choose a side. This should be avoided at all costs, as the comfort of any children in these moments relies greatly on their ability to feel supported by both sides.

Give everyone involved their opportunity to speak with a psychologist

Sometimes we could all use a professional listener, which is a key component to the psychologist’s duty. The ability to speak with someone outside of the family and uninvolved with the divorce lets kids speak their mind freely. This can be vital to their coping ability and overall comfort with what’s going on, and it also gives them a chance to speak with a professional about any other personal matters that could be troubling them.

If you and your ex are having trouble coping with one another without hostility, you should both reach out for psychological support as well. As mentioned before, the level of hostility between you and your ex plays a huge role in the children’s ability to flourish through this trying time. The ability to talk with an unbiased professional goes hand-in-hand with the previously mentioned strategies of openness and proper communication.

Learn to say “hello” and “goodbye” properly

Sending the kids off for their time with the ex can be very difficult, especially at first, but your strength in these times affects your child’s strength. Leave with a smile when you drop them off, and never let them feel like you’re upset about leaving them with your ex. Make transitions as positive and peaceful as you can, and find a way to leave that works well for you, your ex and your children. Allow your child feel as little tension about these drop-offs and pick-ups as possible.

With some hard work from you and your ex, your two new families can thrive instead of just survive through these tense times.

8 Questions to Ask a Potential Divorce Attorney

8-questions-to-ask-a-potential-divorce-attorney

Hiring a divorce attorney and proceeding through the divorce process does not have to be the horrific endeavor that is commonly portrayed in pop culture and media. While it is true that during a divorce, emotions do run high, what is important is getting the right attorney to help you with the process. There is a lot of information available but critically, not all this information is accurate or helpful in making a determination if a specific attorney is right for your case. Knowing what to ask a prospective divorce attorney is important to your situation and circumstances. Therefore it is vital to ask right questions of any attorney you are considering.

Eight Important Questions To Ask A Prospective Attorney

Due to the fact that speaking with an attorney about your pending divorce involves discussing personal aspects of your life, it is crucial that you feel comfortable discussing with your divorce attorney all the relevant information necessary. To help ascertain how your potential attorney can help you, here are the eight important questions to ask.

  • Is Family Law a specialty for you and how many years of experience do you have in Family Law?
  • Who will be working on my case? Will there also be associates or junior attorneys assigned to my case?
  • What steps are involved in the divorce process?
  • Are you familiar with the local Family Law Judges and how they tend to rule?
  • Are their any resources you recommend for clients?
  • Will we sign a written retainer agreement?
  • Will the invoice be itemized?
  • How will you communicate with me and how often?

It is important for your situation to find the most qualified attorney possible. Family Law is an ever changing construct of different laws, rulings or precedents and societal norms based on a wide range of variables and will differ from state to state. However, the basic questions above allow you to evaluate a potential attorney and their ability to assist you with your specific case and circumstances. Other aspects such as children in the relationship and property will and can have an effect on your specific case and in some situations the scope of the case could be widened to encompass other attorneys as part of the process. However, these questions are still valid for those rare circumstances where this situation occurs.

Your attorney is your trusted partner in handling your divorce case. When engaging a prospective attorney, be sure to provide the attorney with as much initial information as possible so the attorney can determine how best to help you. Remember, the attorney is your representative and therefore should have the same information that you do concerning your individual circumstances.

Name Change and Divorce

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Divorce includes many pressing issues like child custody and alimony, it is often easy to overlook some of the smaller long-term decisions you need to make. Changing your name is a decision you should consider carefully before finishing your request for a final judgment.

Some things to consider as you decide if you want to keep your married name or change it.

The Process.  The process of changing your legal name during a divorce in California is simple. You simply need to request that a name change order be included as part of the final judgment in your divorce. This is the easiest way to take care of changing your name if you are certain you want to. However, if you are unsure, there is also a provision in California law that will allow you to request an alteration of your final decree at a later time. You can also have your name changed to something other than your maiden name, but this requires you to follow the process for a standard Petition for Change of name, and is a separate process from your divorce proceeding.

Impact on Children.  There is often a strong emotional reaction to names for people. Wives and husbands often feel the need to have the outward sign of a name change to signify the end of their relationship. But, parents are often concerned that their children may suffer from having a different name from their mom. In most instances, the courts will not change the name of minor children as part of a divorce proceeding, even if their parent has a name change. The good news is that children having different names from their parents is not nearly as stigmatized as it once was in society, nor is it confusing for things like school records. If you desire to go back to your maiden name, be sure to talk with your kids about the situation and let them know the change in name does not change your relationship with them. Lay the groundwork for them to be able to come to you with any concerns that might come up about having a different name than yours.

Updating Your Information.  If you have no particular feeling toward your last name, and there is no overriding need to change it, the biggest factor in your decision may be whether or not you want the hassle of updating all of your accounts and documents to reflect a new name. Take time to make a list of all the various items and accounts you will need to update. The most important are:

  • Driver’s License
  • Social Security Card
  • Bank Accounts & Credit Cards
  • Passport
  • Loans or Mortgages
  • Investment Accounts

Most other items can be updated as you run across them, but having a list of everything does help make the process easier.

Impact on Your Business or Profession.  If you are a professional, or own your own business and it is associated with your name, it may serve you better to keep your current name. Often times after being married for many years, people will choose to keep their married name, or hyphenate back to their maiden name, to maintain the name recognition they have worked so hard to earn over the years.

If you have questions or aren’t sure about whether or not you want to change your name, your attorney can help you list out and weight the pros and cons.

Divorce Terminology

divorce-terminology

When going through a divorce, you will likely encounter terms you may not be familiar with. This guide to divorce terminology will help you better understand them.

Alimony: Refers to money paid by one spouse to the other that is separate from child support. Alimony is sometimes referred to as spousal support or spousal maintenance. It may be granted on a temporary basis while the spouse adjusts to being single, or permanent to allow the receiver to maintain the lifestyle he or she enjoyed while married.

Annulment: A method of ending a marriage by declaring that it was never valid to begin with. Annulments are sometimes given because one party is underage or of unsound mind, but may also be granted when there is fraud or coercion.

Arrearage: A sum of money that is past due for the payment of child or spousal support.

ATRO: Automatic Temporary Restraining Orders, which are court orders included in each California divorce summons. The standard language in an ATRO prohibits either party from removing children from the state of California, canceling insurance policies, borrowing against the estate, or disposing of property.

Child Support: A sum or money paid by the non-custodial parent to the custodial parent to help offset the cost of raising any children produced by the marriage.

Child Support Guidelines: A set of guidelines that is used in calculating child support. The California Department of Child Support Services is responsible for monitoring child support payments between parents, and also provides a calculator that you can use to estimate payments.

Community Debts: Debts that a husband and wife owe jointly.

Community Property: Consists of everything that a married couple owns together, which may include real property, stocks, and pension benefits.

Complaint: The formal document filed with the court which states that one party wishes to divorce the other and the grounds for doing so.

Custodial Parent: The parent who has the child(ren) living with him or her the majority of the time.

Date of Separation: Under California law, the date of separation is the day when you and your spouse mentally ceased being husband and wife. It is not necessarily the date when one party left the marital home.

Ex-Parte: An emergency request from the court on a family matter due to extreme circumstances.

Guardian ad Litem: An attorney who may be appointed by the courts in order to represent the best interest of the child(ren).  A guardian ad litem is not automatically appointed, but can be requested by either party through an attorney or by visiting the Equal Access Project for assistance.

Irreconcilable Differences: Means the marriage is irretrievably broken, and there is virtually no chance of reconciliation. Irreconcilable differences is the standard by which California divorces are granted.

Paternity: Involves legally determining fatherhood, and is required before child support is ordered.

Pre-nuptial Agreement: An agreement entered into by the parties that spells out certain rights for each one in the event of a divorce.

Restraining Order: An order preventing one party from contacting or harassing another. This differs from an ATRO in that it is not automatically granted by the court, but instead is something that one of the parties must petition for. Restraining orders are typically granted in cases of domestic violence.

Visitation: The right of a non-custodial parent to spend time with his or her children after primary custody has been established.

Waiting Period: The amount of time required between the filing of paperwork and the actual order from a judge dissolving the marriage. In California, the waiting period for a divorce is six months and one day.

Tips for a Smooth Divorce

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Everyone enters into a marriage expecting it to succeed, but according to the government more than 20 percent of marriages end in divorce within the first five years, and 48 percent end within 20 years. Although these statistics are a bit alarming, it is possible to have a healthy breakup when the marriage ends.

Here are five tips to make your divorce go as smoothly as possible.

Take Responsibility.  No one person is ever completely to blame for a divorce, so take responsibility for your mistakes in the marriage. Examine your marriage and the part that both parties played in its failure. It’s important to realize your mistakes, take responsibility for your actions, and approach the divorce with honesty. This will make necessary divorce proceedings and negotiations with your spouse easier, calmer and faster. Taking responsibility for your part in the divorce will help you heal faster and prevent you from making the same mistakes in a future relationship.

Be Respectful.  It’s important to remember that you did once love the person you’re divorcing, even if your feelings are different now. Divorce is an emotional process that can result in a lot of emotions including anger, anxiety, grief and fear, and sometimes those feelings show up when you least expect them. Although you may be tempted to fight with your spouse through the divorce proceedings, take the high road instead. Be respectful towards your spouse and the divorce process, and try to preserve some of the good feelings you once had towards your partner. You may not remain best friends, but you can remain amicable.

Stay Positive.  Lifestyle changes brought on by divorce can be frightening and overwhelming, but it’s important to keep a positive outlook for your future. Find a support system through family members, friends and networking groups who can keep you from feeling isolated and alone. Formal support groups can help you cope with the lifestyle changes of a divorce by connecting you with people in similar situations. Get involved in enjoyable activities or new hobbies to take your mind off of your emotions. Meet new people, take a class, join a gym, and reclaim activities that you had to give up during your marriage.

Understand Your Finances.  One of the greatest challenges of a divorce is often your financial future after a divorce. Understand your finances and assets, so you can determine how to divide them. When you’re dividing assets, prioritize your wants and needs. For example, you may agree to give your spouse more cash in exchange for the house. If you can’t afford to keep the house on one salary, plan for the sale of the house as part of the divorce settlement. Be realistic and practical in your demands to facilitate a fair settlement and a quicker divorce.

Talk to the Kids.  Divorce can be a traumatic experience for children, especially if there’s a lot of conflict in the divorce. Keep conflicts away from the kids and between the adults to avoid potential risks of social and psychological problems for the kids. Come up with a plan and discuss the changes that the family is experiencing together with the kids. They will benefit from honest conversations and open communications. Although divorce is difficult for most kids, studies show that kids handle divorce better when they maintain close contact with both parents. Maintaining a loving relationship with your kids through the divorce process will create a more positive outlook for their future.

Pension Rights After Divorce

For many divorce may seem like a difficult journey particularly if you are in retirement or headed towards it. You may be in the situation where your spouse has been working all these years, and you have stayed at home to raise the children, and the divorce would put you in severe hardship if not poverty. Many cases suggest that middle-aged persons fear that divorce because the financial strain will leave them in hardship. Today, we will explore the options of pensions can play a critical role in the divorce, and how it can play in your favor, so you don’t have to go through unnecessary hardship. Let’s get started!

Pensions and Marital Property

Example 1: Both Spouses are Working

Pensions of both husband and wife earned through the course of a marriage are subject to distribution in the filing of the divorce. Suppose James married Mary five years after he began his employment at XYZ Co., and now 20 years after they married, James and Mary divorce. Those benefits James earned as a single man before his marriage to Mary are James separate property. Those 20 years that James had been married to Mary are marital and subject to division and distribution. The same situation applies to any pensions that Mary had earned at her employer with ABC Co. In the event of an employee contribution plan as part of that spouse’s pension plan this is still considered marital property.

Example 2: One Spouse in Working

From our example above let’s say that Mary decide to take on the role of a homemaker and child rearing, the stay at home mother so to speak. Mary only has a sketchy understanding that her husband James pension may be their most valuable asset besides the house they share. In this type of situation, this is known as a coverture fraction.

In cases such as these courts use a coverture fraction, also known as the time rule. The time rule is a mathematical formula that is used to calculate the percentage of the pension distributed to the non-worker spouse.

So as an example, James and Mary had been married 20 years even though James had been employed 25 years. So you take 20 years and divide it by 25 years which comes out to be .80 or 80%.

This means that 80 percent of the present value of James pension would be attributed to the marriage. So if James had accumulated $100,000, then 80% or $80,000 would be added to the value of the marital portion.

Contact a Divorce Lawyer for All Your Options

As you can see if you are seeking a divorce and want to know, more about your options are when it comes to your spouse’s pension you should call a qualified divorce lawyer in your area. There is more that an attorney can tell you about pensions that include contributions, benefits plans, qualifying for your spouse’s social security benefits and how valuations are calculated.

What to Expect When Hiring a Divorce Lawyer

what to expect when hiring a divorce lawyer

For many people, setting out to hire a divorce attorney is a daunting and frustrating task, especially when the stakes can be very high if child custody and support, or alimony and property issues are in dispute. What can you expect when hiring a divorce attorney?

Expect to do your research

A divorce attorney, like any other professional, has a resume and reputation both of which can help you to narrow down your choices. Consult with family and friends, colleagues at work, or other people you trust for their recommendations. This list can be your starting point.

Research thoroughly the lawyers’ backgrounds on your list. With most lawyers using websites, you can get a fairly good idea about how they practice law, the office philosophy and mission, and other information that will help you to focus the search. Check the credentials, your lawyer should be trained in divorce or family law, and the level of experience is really up to you. Once you have narrowed your list, contact the local bar association to ensure that those lawyers have engage in an ethical law practice.

Expect to interview more than one attorney

Given what can be at stake in a divorce, you don’t hire your lawyer sight unseen. Interview your potential divorce lawyers. Many offer a free consultation, or a reduced rate for an interview. Prepare your questions ahead of time, and if you like, ask for client references or testimonials. You have to be certain that this is a person that you want working on your behalf and shares your values, and values your opinion.

Expect to be comfortable with your attorney

Divorce lawyers are not trained marriage counselors, or financial experts, but your lawyer will have to understand more than just the legal aspects of your case. When you are looking for your lawyer, you have to be comfortable with their approach to your case. For example, some lawyers oppose joint custody, so if that is what you want, you should have a lawyer who is comfortable with your ideas. In other words, you and your lawyer should be in agreement about the larger principals at play of your divorce case.

You should not be looking for a “yes lawyer;” you need a lawyer who will tell you the truth. So find a lawyer who will work hard for you but also one that will tell you the truth about possible outcomes. And if you want to be closely involved, you need to find a lawyer who will be comfortable discussing strategy with you, and is someone who you find easy to communicate with.

Expect to know the costs

A good divorce lawyer will be upfront about the fees that you will have to pay, including a formal contract and a retainer agreement that clearly spells out what you will be charged for and at what rates. Specifically, you should know what hourly rate will be applied once the retainer fees are used.

What is Divorce Settled by Agreement?

divorce settled by agreementWhen a divorce is settled via an agreement, it’s called a divorce settlement, marital settlement or collaborative settlement agreement. The agreement allows you and your spouse to have a written agreement that spells out the terms of your divorce. The agreement specifically covers one or more of the following:

A divorce settlement agreement becomes binding when it’s incorporated into your divorce decree. If you or your spouse violates any part of the agreement, a judge may hold you in contempt of court.

The Agreement can be Drafted Any Time Prior to a Divorce

A divorce settlement agreement is ideal for any couple able to put their differences aside or are on speaking terms. It requires a lot of negotiation to agree on the different terms. You and your spouse can come to an agreement at any time before you separate and until your divorce trial.

Depending on your circumstances, you and your spouse may employ the help of a mediator or divorce lawyer. The mediator or lawyer will lead the negotiations and try to find common ground to make an agreement on specific terms.

You and your spouse may be tempted to handle the negotiations without help. However, it is highly recommended that you discuss your settlement with a divorce lawyer. You want a lawyer who will represent only you, not one hired to represent both of you. You need to know your legal rights.

Also, you want a lawyer to prepare your divorce agreement. It doesn’t matter if you or your spouse prepared one. Hiring a lawyer to prepare the document ensures that vital legal provisions are corrected, added or deleted.

The right legal language is used. Terms like, sole custody, waive all future claims or exclusive possession mean something. For instance, you may intend to have shared custody, but sole custody is written instead. This means that you’ve given up your rights to have joint custody to your child.

Should You Sign a Divorce Settlement Agreement You Don’t Agree With?

No. The best thing to do in this situation is discuss it with an attorney. It’s tempting to sign an agreement because you want to start over, but you must think about your future. If your spouse prepares the first draft—even if you agreed to everything verbally—still have an attorney look over it. This should be done no matter how much pressure is put on you by your spouse, family or even yourself. In fact, you nor your spouse have to sign the agreement. You won’t get into any legal trouble. Instead, you will start over again or go to divorce court.

Speaking with a Lawyer

A divorce changes your financial life drastically. Unfortunately, many individuals don’t realize that they may lose a lot of money after a divorce. So you will want to discuss how a divorce and/or divorce settlement will change yours with a lawyer:

  • Finances
  • Health insurance
  • Property ownership
  • Cost of living
  • Retirement plans

A divorce settlement agreement can be modified when there are changes in you or your spouse’s life. However, there are certain terms that can’t be changed depending on the wording of your original divorce agreement. For instance, it may be in the agreement that alimony is non-modifiable. In that case, you can’t go back and ask for a reduction or increase later.

When is it too Late to Annul a Marriage in California?

when-is-it-too-late-to-annul-a-marriageFiling for an annulment rather than a divorce can be a complicated process. An annulment has the expressed goal of deeming the marriage invalid, and thus, wiping it from the record as if it never existed. A divorce, on the other hand, is when two parties agree to end a marriage through the process of divorce. While divorces can happen at anytime, and there is no limitations on when one can file for divorce, in the state of California, annulments do have deadlines. How long you can be married and still annul a marriage in California depends entirely on the reasons that are being used for an annulment.

Minors Who Marry 

If one or both of the parties in the marriage are under the age of 18, they can file for an annulment with this as a reason. If the minor is still under 18 at the time of the annulment request a parent or legal guardian can file the request. After the individual turns 18 he or she has 4 years from their 18th birthday to file for an annulment. From the age of 22 onward, a divorce petition must be filed, instead.

Bigamy 

Bigamy is the act of getting married while another, legal marriage still exists. In the case of bigamy, the second marriage is considered null and void, but the process of annulment must still be carried out. For an annulment on the grounds of bigamy both parties must be alive at the time of the proceedings. There is no time limit on when one can file for an annulment due to bigamy. The current spouse, or the pre-existing spouse can file.

Fraud 

Fraud is the most commonly used reason for an annulment request. Fraud, in this case, can be defined as one partner deceiving the other into the marriage. Fraud can be considered one partner telling the other that they’d like to have children when they do not. Fraud can also be defined as the withholding of important information that would have caused the marriage to never happen. The party who has been the victim of fraud must file for the annulment, and it must be within four years of discovering the fraud. Fraud, in certain circumstances, can be difficult to prove.

Force 

Force, in terms of an annulment, is the act of forcing one party to commit and consent to the marriage. This can happen when one party feels obligated to another, or when a minor enters into a partnership with an older individual. When force is being used as the reason for divorce, the one forced into the marriage must be the individual to file. An annulment because of force, must be filed within four years of entering into the marriage.

Physical Incapacitation 

An annulment of a marriage may be granted on the grounds of physical incapacity. That means, one party is no longer able to live up to their marital duties, or never was. For example, impotence can be considered a physical incapacity, however, the party asking for the divorce must prove that she was unaware of the physical disability at the time of the marriage. One can file for an annulment on these grounds as long as the marriage is no more than 4 years old.

Unsound Mind 

Under this reason, one party must prove that the other party is of unsound mind, or a conservator must prove that the individual was not of sound mind to consent to the marriage. This type of annulment can take place at any time during the marriage, as long as both parties are still living.