Posts Tagged ‘Spousal support’

What If My Ex Died Before A Divorce Settlement Was Fully Paid?

Monday, November 12th, 2018

If, in the event of a divorce, there is a settlement agreement drafted and signed by both parties, it stipulates and sets forth how the parties will operate post-divorce. This includes assigning custody of the child or children, child support, visitation, and spousal support. But, if the spouse paying child and spousal support dies, how can the other parent receive any support at all?

If the Court issued a financial Order, then there has essentially been a “debt” assigned, and therefore can be sued due to an unfulfilled obligation. In this scenario, the executors of the deceased spouse’s estate will be responsible for determining in what amount the estate will pay out.

If the divorce settlement and proceedings are finalized, and, for instance, the deceased spouse did not change the beneficiary from their spouse to another person in their Will, then that Will shall be enforced upon the conclusion of the divorce proceedings. In the event that there is no such Order issued, it is harder to argue that there was a “debt owed”. You can bring a claim under the Provision for Family and Dependents Act 1975, wherein the Court will determine based on these considerations:

  • the financial resources and needs of the applicant

  • the financial resources and needs of any other applicant
  • the financial resources and needs of the beneficiaries
  • any obligations and responsibilities of the deceased towards any applicant and any beneficiary

  • the size and nature of the estate of the deceased
  • any physical or mental disability of any applicant or beneficiary

  • any other matter, including conduct, which the court may consider relevant.

Beyond this, there is not much else the surviving ex-spouse can do. The Court will definitely take into account what could have been reasonably expected to have been received in the event of a divorce, without the death of the former spouse.

Is Spousal Support Affected If My Ex Quits Their Jobs?

Thursday, June 21st, 2018

If the spouse who has been ordered to pay child support experiences a significant reduction in their income, like through a demotion or a loss of work, it is not always enough to reduce child support. This type of circumstance, however, can impact spousal support. Regardless, there have been many instances where the loss of work is the result of the supporter quitting or voluntarily leaving, which in some cases is used as a ploy to get a reduction in support requirements.

As made clear in the Federal Child Support Guidelines, the court may attribute income to a spouse, regardless if income is being earned or not. With regard to imputing income, one of the circumstances considered when a court is planning to award spousal support are if the spouse is intentionally underemployed or unemployed, other than instances where the underemployment or unemployment is required by the needs of a child of the marriage or any child under the age of majority, or due to reasonable educational or health needs of the spouse. Moreover, the courts really don’t like when a parent tries to evade support obligations, especially child support.

In the end, quitting your job is a deliberate choice, and not an unfortunate circumstance, and so most judges are going to be very unwilling to significantly lower or even end spousal support obligations. Some courts will even impute income based on how much the payer could realistically earn had they still been employed. This means that those receiving payments should not be overly worried if their ex quits their job, and that those paying spousal support should strongly reconsider quitting their job in an attempt to avoid spousal support.  

Can I Get Spousal Support If My Spouse Cheated On Me?

Wednesday, April 18th, 2018

While infidelity, or adultery, as grounds for divorce in New York, it actually has little to no impact on a financial settlement handed down by the court. Of course, you can still file for alimony and be awarded what you seek, but just know that the adultery itself will not be used as a mitigating factor when determining if you are entitled to support, and how much.

In New York, the law defines adultery as “a married person having sexual intercourse with another person, who is not his or her spouse”. Because adultery is a “fault divorce” ground, you will be required to prove that there was adultery from an outside party, usually a hired private investigator.

With regard to alimony, the court uses this list in order to determine if alimony will be awarded, and how much is to be paid out.

– Length of the marriage, including any time the couple lived together before and after the marriage

– Contributions and services by the spouse seeking alimony, such as homemaker contributions

– Age and health of both spouses

– Need for one spouse to gain education or training, and how long this might take

– Income and property of both spouses

– Acts that prevent a spouse’s ability to gain employment or increase earning ability (for example, mental or physical abuse)

– Any need to pay for exceptional expenses, such as schooling and medical care for children

– Where children from the marriage live

– Present and future earning ability of each spouse, including reduced ability of one spouse due to delaying of education or career opportunities, and inability to earn due to age or absence from workforce

– What property was awarded during equitable distribution

There are a few others that belong on the list, but what is important here to understand that adultery, proven or otherwise, is not on this list, because it is not a factor in alimony decisions. Simply, adultery does not ensure alimony, and while although the court does take into consideration egregious and heinous acts when deciding over awarding alimony,  they do not consider adultery either of those things. The only time adultery comes into play with respect to financial settlements is if marital funds are spent on the spouses’ lover.

 

Is Alimony Taxable Or Non-Taxable?

Monday, April 2nd, 2018

Many spouses who find themselves paying spousal support want to know the tax implications that are applied. In short, spousal support must be reported as taxable income by the recipient, and can be deducted by the paying spouse. Do not confuse this with child support, as it is neither taxable nor is it deductible.

If there is an increase in tax for the spouse receiving the payments, it can usually be offset by the significant tax savings by the paying spouse, and at that point, if deemed necessary, they can make an additional payment to the receiving spouse to make up the difference. So in short, yes, alimony is taxable, although you can arrange for it to be both non-taxable as well as nondeductible, but that would have to be included in the marital settlement agreement.

If you are receiving alimony and haven’t arranged for it to be nontaxable and nondeductible, then you should plan for it to be taxed and prepare you finances accordingly. One way to do this is if you have a paying job, you can increase withholding from your paycheck, to offset any impact of support payments. Because the math can be a bit complex, you can check the potential tax liability at the IRS website. Some find it helpful to speak with a tax professional, as they can help you figure out the ideal amount for both you and your former spouse that is making support payments.

If you are the one making alimony payments, you can list the payments as deductible on your income tax return. The IRS will be paying close attention to support payments for the first 3 years, as some newly divorced people try to mask property allocation or other obligations that resulted from the divorce agreement. Also, keep in mind child support payments are not tax deductible, and if your spousal support is set to end when the children go to college, the IRS could consider the payments as child support instead of spousal, so for your protection, in the agreement, try not to have the alimony termination connected to the children in any way.

Does Domestic Violence Affect Spousal Support?

Sunday, February 25th, 2018

It would seem logical that if during the marriage, a spouse was the victim of domestic violence, then during the divorce trial, and more specifically, when hashing out support payments, that would be a mitigating factor. And to some extent, the court usually takes into consideration the devastating effect that domestic violence can have on a person, not just emotionally and psychologically, but also in their every-day lives. For instance, the court recognizes that domestic violence can greatly affect a spouse’s ability to get a job and have a career because of the toll that domestic violence can have. The actions that a spouse commits on another can often negatively affect the other’s earning capability. Because the repercussions of spousal abuse and misconduct can have such an impact, don’t hesitate to bring it up to your attorney or in court, not only because of how it may impact spousal support, but also because it is something that should be addressed and not be brushed under the table.

While that is as far as most courts will consider domestic violence as a factor in spousal maintenance, it does have an impact on child support as well. In Family Court, a common form of relief is an Order of Protection. Not only does it help settle child custody battles, it also can include child support. While some courts initially grant a temporary order of protection, a more permanent one can be granted from one to three years.  Sometimes this order can include that the abuser pays the medical expenses for treatment that arise from the incident, as well as housing costs, and, as mentioned earlier, temporary child custody and an award of child support.

Paul E. Rudder, Esq. is a single practitioner and has been practicing family law for over three decades. Attorney Rudder started his career as a civil rights and criminal defense attorney. If you need legal assistance or want to get divorced, call 212-826-9900.

Does My Spousal Support Duty End When I Retire?

Monday, April 17th, 2017

When you retire, there is the possibility that your financial circumstances will change. In some cases, social security starts coming in – replacing your current method of income. You would need to adjust your lifestyle.

Many still pay for spousal support even when they reach the point of retirement. Some wonder if they are still required to pay spousal maintenance. Unfortunately, alimony is not immediately terminated once you retire. There are many reasons that spousal support can be terminated, but unless the retirement drastically changes the retiree’s financial situation, it is unlikely that the family court will stop or reduce the current support payments required.

The way to go about attaining a modification to your current alimony plan is by presenting your new (and impactful) reduction in your income, via your new social security payments and whatever retirement funds you have saved.

In some professions, this will include a pension as well. By showing that there was a significant reduction in your salary, the judge would be more inclined to grant a reduction.

Additionally, the judge will also take into consideration your former spouse, who is receiving the alimony. Their income and expenses are equally as important as the fact that you are now retired and may have a lower income, as they might also be on the brink of retiring as well, facing similar circumstances as yourself. Without them being able to support themselves, the chances of a complete end to alimony payments are slim.

 

Related Articles:

How Long Do You Have To Pay Spousal Support?

2 Types of Alimony In New York

 

 

Who Is Entitled To Spousal Support?

Saturday, December 10th, 2016

When a married couple decided to get divorced, the judge will consider, and most often award spousal support otherwise known as “alimony,” to one of them. This will be decided either before the trial, where the two parties can make an agreement, or after a trial is conducted before a judge.

The purpose of awarding alimony is to mitigate any unfair, economic advantage that one spouse might have as a result of a divorce. The “disadvantaged” party will receive a continuing income from the other.

An example where one party may receive alimony is when a spouse who puts his or her career on hold in order to start a family, which include sacrificing time that could have been used to develop career/job skills. Now, not only are they looking for work with no relevant experience, they don’t have the financial stability to withstand the interim, jobless period.

The court also tends to recognize the notion of “maintaining and continuing a standard of living.” In other words, if the spouse has been living a certain type of life for a significant amount of time on their spouse’s work, it can be a compelling enough argument for the court to award alimony.

When deciding on the amount of alimony, the court will look to The Uniform Marriage and Divorce Act in order to reach a fair decision for both parties. The length of the marriage and the age/emotional state of the spouses, along with financial conditions, are the main factors in amount, but also in determining the length of time.

In addition, the amount of time necessary for the receiving spouse to receive the necessary education or experience to restart their career is taken into consideration.  Last, but certainly not forgotten, is the ability of the paying spouse to actually make these payments and still have the ability to support themselves.

 

My Spouse Is Filing for Divorce. Can I File for Spousal Support To Help Pay Debts I Incurred In His Behalf?

Tuesday, September 20th, 2016

The purpose of alimony or spousal support is to limit the economic effects of a divorce proceeding. It is granted to the unemployed or lower-wage-earning spouse as a source of continuing income.

The court is aware that there are countless, justifiable reasons for one of the spouses to be unemployed or earning lower wages. For instance, it is very common for one spouse to end or halt their career to support the family, be it at home or anywhere else outside of work. The court sees a significant importance in continuing the standard of living that a spouse may have grown accustomed to during the marriage.

Unlike child support, where there are very specific monetary guidelines, there is more leeway concerning the awarding, the duration, and the amount of alimony. Under the Uniform Marriage and Divorce Act, where most states’ spousal support statutes are based on, are a few recommendations for the court to consider when making decisions related to alimony. Things like age, physical and emotional condition, as well as financial conditions are the big factors that courts look at first. Then they decide how long the recipient would need spousal support until they became self-sufficient enough to get back into the workplace.

Next, they examine what the standard of living was during the marriage, as well as how long the marriage lasted. And finally, the ability of the PAYING spouse to support the recipient, while still being able to support themselves (imperative to note).

Unlike with child-support, where the court “has ways” of punishing you for not paying, there are not too many things a court can do if one spouse isn’t paying alimony. However, the spouse who should be receiving the payments can go to the court in a contempt proceeding to force the payment. Once there is a court order for alimony, the court can leverage punishment to a spouse who is supposed to be paying the entitled person.