Options For Dividing The House In A Divorce
Depending on the goals and desires of each spouse, there are several ways that a house is divided.
The cleanest of these is to sell the house, divide the proceeds according to the particulars of your divorce, and move on.
When one spouse wants to keep the house, a couple of scenarios can come into play. The in-house can buy out the out-spouse at a negotiated price, and become the sole owner of the property. The house may need to be refinanced, so the in-spouse needs to make sure they can qualify with their own sources of income going forward.
The upside here is that the spouse who refinances can take out a larger loan on the property to pay off the agreed-upon amount going to the out-spouse.
If the in-spouse wants to stay in the house, perhaps to continue raising children, then if the couple agrees, both sides can still own the home and decide to sell it at a later date. This co-ownership through a deferred sale gives time to resolve many other outstanding divorce issues and isolates the sale to a time that is more convenient in the future.
The downside of this is that equity in the home does remain tied up, so if the out-spouse wants to buy another home or condo, they could be hamstrung in their efforts.
What Is A Wife Entitled To In A Divorce In Texas With Respect To Separate Property
While community property typically consists of anything acquired after the date of the marriage, separate property includes those assets acquired before the marriage. In addition, property that would otherwise be community property is separate property, where the asset in question is
- An inheritance left to one spouse but not the other,
- Acquired with a spouses separate assets,
- Gifted to one spouse but not the other,
- Excluded from community property via a valid prenuptial agreement, or
- Certain types of money damages from a personal injury claim.
Note that while property acquired before the marriage is separate property, income derived from this kind of property can be classified as community property. In addition, if the wife actively contributed to the business appreciation, she may be entitled to a share of the asset in a divorce under a reimbursement claim.
Enforcing An Alimony Award
If your ex isn’t paying court-ordered spousal support, you may go back to court to ask the judge to enforce the alimony orders. The same is true when you and your ex had an agreement on the issue that was made part of the final divorce judgment or another court order. Typically, you’ll file a “show cause” action , and the court will set a hearing to determine why your ex isn’t following the order and what the judge should do to enforce it.
Family law courts have various tools at their disposal to enforce alimony payments, and a deadbeat spouse could face fines and penalties for failing to follow an alimony order. A judge may also order a spouse to pay alimony retroactively to make up for any missed payments.
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What Is A Gavron Warning
Family Code 4330 states, When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable. This warning to the spouse that will receive spousal support is a codification of a warning that was issued in a case called Gavron. It essentially means that an ex-spouse is not entitled to sit back, relax and refuse to make a good faith effort to become self-supporting after a permanent support order is entered by the court. As noted, this warning is discretionary. Sometimes the court will even make this order during the pendency of a divorce case.
New York Did Not Change How Maintenance Is Calculated As A Result Of The 2019 Changes To The Federal Tax Code Making Maintenance Non
The final thing I want to note is that in 2019 there were changes to the federal tax code and and maintenance or alimony is no longer deductible to the payor and no longer includible to the payee. Many states have changed their formula to account for that tax shift. New York has not done so. They may do so in the future, but thats not the case now.
As you have probably noticed by now, maintenance guidelines in New York are purely mathematical and do not take into account the individual circumstance of each family.
This often results in maintenance awards that make little financial sense in reality. Fortunately, the law allows couples to opt-out of using the maintenance guidelines calculations in private agreements, and such agreements do not need to be approved by the courts. In mediation, a couple is entirely free to make their own decisions regarding maintenance. The couple can determine if maintenance is appropriate in their situation and if so, customize the amount and duration so that it works for their own unique family needs and circumstances.
So that is how you calculate maintenance in New York. I hope this has been helpful, and Ill see you next time on Divorce Academy.
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Tax Consequences Of Spousal Support
Prior to January 1, 2019, spousal support payments were usually considered taxable income to the payee and tax-deductible by the payor. This was an important consideration in any spousal support case, especially given the fact that the parties are usually in different tax brackets.
The Tax Cuts and Job Act was enacted by the federal government in December of 2017. The TCJA includes many changes to the manner in which individuals are taxed and the types of deductions that individuals may claim on their tax returns. One of the TCJAs most significant changes was its elimination of the deductibility of spousal support.
As of January 1, 2019, the payor of spousal support can no longer claim a deduction for the payments on the payors tax return if:
- the parties marital settlement agreement was executed after December 31, 2018 or
- the parties final order of divorce was entered after December 31, 2018 or
- the agreement was executed on or before December 31, 2018, and was modified after December 31, 2018, and expressly provided that the TCJA provision concerning spousal support applies.
Therefore, effective January 1, 2019, spousal support paid by the payor is no longer deductible by the payor or included as taxable income to the payee for all new orders or agreements entered into after that date. These new rules apply to both temporary support paid during the course of the case in litigation, and to support payments ordered or agreed upon as a final resolution of the case.
Are There Exceptions To The Illinois Spousal Maintenance Formula
Generally speaking, the formulas described above will apply as long as a couples combined annual income is less than $500,000, and the paying spouse is not already under any previous child support orders. However, even outside of these circumstances, the same formulas are often used for determining support.
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What Were The Contributions Of Each Family Law Party
Once the property pool is determined, the next step is to determine the financial and non-financial contributions of each party, specifically:
- Financial contributions that each party made to the acquisition, conservation and improvement of property including:
- Initial contributions and
- Contributions during the relationship and
- Contributions made post-separation .
What Is A Wife Entitled To In A Divorce In Texas With Respect To Asset Division
Texas law entitles wives and husbands alike to a just and right share of marital assets. Marital assets, or community property, are generally assets that either spouse acquired during the marriage. Anything classified as community property is subject to division.
It is irrelevant whose name is on the title or whose name the bank account is under. Community property can include assets such as automobiles, the marital home, businesses, and contributions to retirement accounts.
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If There Has Been Domestic Violence Does That Effect Spousal Support
Yes. This issue has been the subject of several recent changes in the law. First, the occurrence of domestic violence during marriage is a factor that the court must consider under Family Code 4320 when determining permanent spousal support, so long as the domestic violence is documented. Second, Family Code 4325 states that in any case where a spouse is convicted of domestic violence against the spouse within the past five years, there is a rebuttable presumption that the perpetrator spouse is not entitled to receive spousal support.
Who Gets The House In A Divorce With Children
What happens if both you and your spouse can afford to buy each other out?
The judge will consider a whole slew of factors like age, health, earning power, and so on. But the custody and visitation schedule is typically the most important factor.
The court will usually side with the custodial parent who has more time with the children. The reason? It fosters stability for the kids .
If you and your spouse have equal parenting time, then the judge has a harder decision on their hands.
Each state has various laws in place with a list of factors that judges must either consider or exclude with ruling on a house. If theres a dispute with your house, its best to consult an attorney. He or she will be familiar with these laws so that they can be applied in your favor.
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What Assets Are Wives Entitled To In California Divorces
In California divorces, community property, also referred to as marital assets, is split 50/50 between spouses. Unless otherwise stated by court order, a wife is entitled to 50% of all property acquired during the course of a marriage. However, there is a strict distinction between marital property and separate property. Let us break it down for you below.
Are There Any Exceptions
There are assets that do not fall under the definition of community property. These assets are referred to as separate property. In general, a separate property is any asset that belongs in its entirety to one spouse. There are also exceptions in cases where a prenuptial agreement has been signed. In addition, because the definition of community property is so broad, sometimes an asset that is acquired during a marriage can be considered a separate property due to the fact that only one spouses name is on the title. Below are a few examples of assets that are often defined as separate property and are therefore not divided after a divorce:
- Any property owned by an individual before marriage.
- Property that was given as a gift or as an inheritance to one spouse. It also includes any profits from these properties, such as rent if the property is being rented out.
- Any earnings garnered during a time when the spouses were not living together.
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Alimony Calculator For Illinois Couples
The allocation of alimony, also referred to in Illinois as spousal support or spousal maintenance, is governed by the Illinois Marriage and Dissolution of Marriage Act. In 2019, these laws were changed significantly, and the formulas below apply to all divorces that were filed in 2019 or later.
The basic formula for alimony in Illinois is fairly simple: = the yearly maintenance paid.
One condition to this is that the amount awarded cannot cause the receiving spouse to earn more than 40% of the couples combined net income.
How Much Will My Spouse Receive
If your spouse qualifies for benefits on their own record, we will pay that amount first. If the benefit on your record is higher, they will get an additional amount on your record so that the combination of benefits equals that higher amount.
If they begin receiving benefits:
If your spouse will receive a pension for work not covered by Social Security such as government employment, the amount of their Social Security benefits on your record may be reduced.
at any age
Benefits paid to your spouse will not decrease your retirement benefit. In fact, the value of the benefits they may receive, added to your own, may help you decide if taking your benefits sooner may be more advantageous.
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What Does The Court Taken Into Account When Making A Decision
As previously mentioned, there are no hard and fast rules about how to divide assets in a divorce, however, there are two overriding principles that the court will examine when making a decision
1. Equal split
There is an assumption of a 50/50 split as the starting point in any divorce, which means the matrimonial pot should be divided equally upon divorce.
This is in line with the case of White v. White, in which the judge ruled that: As a general guide, equality should be departed from only if, and to the extent that, there is a good reason for doing so.
There is an assumption that because money and assets need to be split fairly that everything will be divided 50/50, however, in most cases this is not the case.
For example, it may make more sense for one party to receive a lump sum from a property sale and the other spouse retains their pension pot. These are the discussions you need to have when agreeing to a financial settlement.
An equal split of the matrimonial property may not always be deemed fair but what is considered fair will differ from case to case.
The judge in the same case also stated:
More realistically, the outcome ought to be as fair as is possible in all the circumstances. But everyones life is different. Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder.
How To Calculate A Fair Settlement
What is an asset?
An asset could include real estate, cars, stocks or shares, cash accounts and anything that has value.
What is a liability?
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Tennessee Alimony And Taxes
Can I deduct alimony payments from taxes?
Amounts paid as alimony or separate maintenance payments under a divorce or separation instrument executed after 2018 wont be deductible by the payer. Such amounts also wont be includible in the income of the recipient. The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018, if the modification expressly states that the alimony isnt deductible to the payer or includible in the income of the recipient.
Always see a Certified Public Accountant or tax lawyer for proper advice for your particular situation. For a taxpayer paying alimony under a divorce agreement executed before 2019, to be allowed to deduct those payments from taxes, certain criteria must be met. Those criteria include:
That means I can write off alimony from my taxes?
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Benefits For Your Divorced Spouse
If you are divorced, your ex-spouse can receive benefits based on your record if:
- Your marriage lasted 10 years or longer.
- Your ex-spouse is unmarried.
- Your ex-spouse is age 62 or older.
- The benefit that your ex-spouse is entitled to receive based on their own work is less than the benefit they would receive based on your work.
- You are entitled to Social Security retirement or disability benefits.
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Considerations About Waiving Maintenance In New York
Next, we can look at the formula with minor children. And, I put a little star here because frequently youll have couples who dont want to address maintenance. The higher-earning spouse never wants to pay maintenance. Its almost universal. So, youll have couples come in and say, Hey, we want to pay child support, but theres no maintenance. My spouse is agreeing to waive maintenance. Dont calculate that because I dont want to put the idea in their head that they should get maintenance. The issues in New York is that before you can calculate child support, you have to calculate the maintenance. So, its almost impossible to get around calculating the maintenance if there is going to be a child support order. Just keep that in mind.
And, by the way, for everyone who thinks, I dont want to pay maintenance . . . I dont want to tip my spouse off. Your spouse knows about maintenance and alimony. Everyone knows about it. You are not actually going to be hiding anything from them. If they want to waive it, or if you want to discuss it, thats great. In fact, if it is a potential maintenance case, you have to discuss it because, when you get to court or in the marital settlement agreement, youre going to have to address whether there is going to be maintenance or not.