Archive for February, 2017

Can I Relocate To A Different State If My Ex-Spouse Has No Visitation Rights?

Monday, February 27th, 2017

In previous blogs, I have covered a vast majority of the many aspects of child custody, and the arrangements, support payments, and rules that operate in that area. Court-ordered custody arrangements have, and can, work well for families for years, even the entirety of childhood. It is especially common when both parents live in proximity of each other. However, there are instances when ex-spouses need to move further apart, perhaps even out of the state.

The dilemma the court sometimes has to face is when the non-custodial parent opposes the move because that spouse will lose the valuable and sparse visitation time they have with the child. In these types of situations, custodial parents almost always have to go to the court and ask the judge to grant permission to move the child or children out of the state. These can be one of the hardest types of custody battles/disputes.

The courts generally don’t allow the child to be removed from the state of residence without prior approval from the very court that issued the initial custody order. Custodial parents that want to move the children out of the state must first get the court’s permission, as stated. If the custodial parent moves out of state with the child without this permission, and if the non-custodial spouse does not approve, there might be court-ordered sanctions brought upon the custodial parent, including orders of contempt, leading to fines and even possible jail time.

Move-away orders can be entered by either consent of both parents, or by the court after a hearing. If the parents agree to an out-of-state move, there must be a written agreement, aka stipulation and consent agreement. This will be turned into a court order after receiving the judge’s approval. If the parents can’t agree, a co-parenting counselor or mediator, who is trained in child custody issues, can be of help in resolving these matters. If this doesn’t work either, a motion will have to be filed by the moving parent, asking the court to grant the request.

What Happens To The Marital Assets If One Spouse Dies And The Divorce Has Not Been Finalized?

Monday, February 20th, 2017

Divorce can take a long time to conclude. In New York, the waiting period for a divorce can take a whole year. And so, it is not outside the realm of possibility that one spouse may die before the divorce is even finalized. So what happens in this scenario? Well, that would depend on if the deceased spouse left a will behind, or died intestate, or without a will.

If your spouse dies after you’ve filed for divorce, but prior to the final judgment being made by the court, then the divorce case will be thrown out. While you can divorce someone without their consent, you cannot get a divorce from a spouse who is currently deceased. When it is time for the distribution of an estate, you will be seen as still married in the eyes of the state.

If your spouse dies without a will, or intestate, the deceased spouse’s estate will be handled by the New York intestate laws. Conversely, if the spouse died with a will, then the estate would be handled consistent with the will.

If a person dies intestate, that person’s community property will go to their surviving spouse. Community property is income that was earned during the marriage, and any assets purchased with the income that was accrued during the marriage.

Sometimes, the surviving spouse might need to file a spousal petition to claim and receive ownership of this property. Separate property is given entirely to the surviving spouse if the deceased has no living children, parents, brothers or sisters or even children of a deceased brother or sister (niece or nephew). If there are heirs that fall into any of these categories, the property will be split between the spouse and the heir.

If the deceased spouse left a Will, it must be followed, even if that Will disinherit their spouse, which is not only possible but has happened before. However, a disinherited spouse would still be entitled to at least half of the community property.

What Is A Qualified Domestic Relations Order?

Friday, February 17th, 2017

Retirement and pension funds/plans are one of the many assets that can be split between spouses as part of a property division in a divorce. A qualified domestic relations order (QDRO), is entered during the divorce, which recognizes that there is joint marital ownership interests in the plan, specifically the spouse that isn’t the primary benefactor.

This recognition awards a part of the plan’s benefits to another recipient, who must either be a spouse, current or former, a child or another named dependent of the plan. Moreover, a QDRO can also be entered for spousal or child support.

The only employee benefit or pension plans that are subject to the Employee Retirement Income Security Act (ERISA) can be applied for via a QDRO. This allows QDRO’s to be acceptable as marital or community property division between the plan recipient and the chosen alternate recipient (listed above), as well as payment of alimony or child support.

Before it becomes qualified, a domestic relations order is simply any judgment, decree or order that relates to any provision of child support or alimony, OR marital property that a spouse, current or past, as well as children or other dependents, have a right to. It is made in accordance with a State domestic relations law, such as community property law.

The actual purpose of the QDRO is to recognize someone else’s right to receive any portion of a benefit plan and to ensure that if necessary, they receive part of that pension.

In order for the domestic relations order to become qualified by a plan administrator, the plan administrator must first determine that the order meets the rules for segregation specified by the plan.

What Happens If A Separate Property Was Given As A Gift?

Monday, February 13th, 2017

Spouses often target gifts and inheritance during the divorce proceedings. Most of these are assets that they have a vested interested in. Gifts can be categorized differently, for instance, there are gifts given between spouses, and these are often treated as part of the couple’s marital estate.

In addition, when a spouse uses their own separate “property” to invest in the spouse’s marital property, that separate property now becomes another part of the spouse’s marital estate. To put that into more relatable terms, if a spouse were to use their inheritance (which is the separate property) to make an initial deposit on the marital home, that is considered as a “gift,” could be considered as marital property. This type of gift will make it perfectly reasonable for the non-inheritor to claim some entitlement.

Sometimes, the spouses, as a couple, can receive a gift, as in the more common way of using the word “gift.” In fact, without proper proof that a payment or gift was meant to be a separate gift to you, and is not for the couple, the court might decide that it is subject to division. Even so, separate property can still become marital property depending on how it is used, and what you refer to the property as during the marriage.

If you combine separate and marital assets together, it can become a joint asset, voiding the premise of separate property. Sometimes, if these assets become so muddled that it becomes difficult to distinguish what is separate and what is joint, a court might be so inclined as to call it all joint. There is a burden of proof on the party that is claiming separate property, and because of the pre-mentioned tendency of the court, it is important to keep separate property just that – separate.

2 Types Of Alimony Or Spousal Maintenance In New York

Friday, February 10th, 2017

Although many of us understand the basic idea of alimony, one spouse paying the other after a divorce, many of us don’t truly grasp the process that goes into calculating the alimony. If there should be any alimony that should be awarded, it is important to obtain a real understanding of the process of obtaining alimony. In the state of New York, we refer to alimony as maintenance.

The real purpose of awarding alimony is to ensure that spouses who are not the primary ‘”breadwinners”, the spouse who is not supporting the family financially, can continue to live the way they did prior to the divorce, or at least a similar enough lifestyle. This also allows the spouse to start preparing to provide for him or herself, which often requires going back to school to obtain a degree, or go through some training, all in an attempt to be “self-sufficient” from then on.

Maintenance isn’t always after the divorce. Pendente Lite is a temporary alimony that is paid during the divorce case and helps to cover any financial needs that the supported spouse may have. This is often awarded after an examination of the pre-divorce standard of living. When the divorce is finalized, pendente lite is over.

Furthermore, post-divorce maintenance can be awarded after the divorce action and can be finite. The death of either spouse or the remarriage of the spouse receiving support, or even if the supported spouse is living with someone, can terminate this maintenance.

Alimony would be based on both spouses’ incomes. Pre-divorce lifestyle will also be taken into consideration.

Is Child Support Taxable Or Non-Taxable?

Monday, February 6th, 2017

A common question in divorces that involve children is whether or not child support is considered taxable income by the spouse receiving the support. The answer to this question is no, and moreover, it is not deductible for the spouse who is paying the support.

An important topic to discuss, however, is that of family support, and whether or not it is taxable. Family support is the combination of child support and alimony and is a single payment of an agreed upon amount by the parents. This type of support is tax deductible by the payer and is considered taxable by the spouse receiving the support. With this in mind, someone seeking support would not benefit as much from family support as they would if the spousal and child support were in separate payments, as they are non-taxable. However, this isn’t so much up to the spouse as it is to the court, and they will often combine the two payments because the entire family does get tax benefits from a logical point of view. When the higher wage earner can deduct support payments, there is more money left in the care of the family overall, something that is lost in the bitterness and anger that clouds judgment in divorces.

One should definitely be familiar with tax codes and laws before strategizing a financial plan within the divorce proceedings. In general, it’s just wise to know tax laws!