Can Alimony/Maintenance Payments Be Lessened if I Lose My Job?

Can Alimony/Maintenance Payments Be Lessened if I Lose My Job?

Are you divorced and paying alimony, i.e., “maintenance”, to your former spouse? Have you experienced a serious reduction in income due to loss of job, or medical infirmity? You may well find the amount of maintenance you are paying to be a serious hardship. What, if anything, can be done to reduce the payments?  Modifying an existing order or agreement regarding support is a difficult and potentially expensive process. You need to make sure your consult with the right attorney before going to Court. The Garden City firm of Fass and Greenberg can provide the advice and you need.

Under What Circumstances Could Your Alimony Be Changed?

If you have recently lost your job, or have been forced to take a lower paying job through no fault of your own, you may have grounds to seek a modification, or in some cases, a suspension of your maintenance payments. If, at the same time you lost your job, your former spouse receives a promotion, inheritance, or any substantial improvement in finances, you may have a case for a downward modification.   

If you consult with the Garden City firm of Fass & Greenberg, we will explain the legal technicalities surrounding your post judgement application. Specifically, there are different standards or thresholds involved if your maintenance obligation arose as a result of a court’s decision (judgement after trial), or written agreement (contract-based obligation) between you and your former spouse.

In the case of the former, you will need to demonstrate to the Court that there was a substantial change in circumstances from the time of the judgement to the time of your application, which would warrant a downward modification of your maintenance obligation.  Applications to downwardly modify maintenance payments have been granted where a spouse lost his or her employment due to the acrimonious and vindictive behavior towards him or her. Additionally, forced retirement, due to a leveraged buyout of a spouse’s employer, has been held to be a sufficient change in circumstances to justify a downward modification.

However, where the maintenance obligation resulted from a written agreement between you and your spouse, you will need to demonstrate more than just a change of circumstances to obtain a modification.  You need to demonstrate that compliance with said obligation creates an “extreme hardship” for the payor spouse (you). In these situations, downward modifications are granted in only very limited instances.  Even in the case of an attorney who was convicted of a federal crime and disbarred, the attorney (payor spouse), was held to have failed to demonstrate extreme hardship necessary to modify his maintenance obligations.  In this case, the Court reasoned that the payor spouse’s dilemma was created by the attorney himself, i.e., due to his  “volitional actions.”   

All potential clients need to understand that evidence of a loss of employment is not sufficient in and of itself to prevail. You need to demonstrate after losing your job that you made diligent efforts to obtain employment commensurate with your qualifications and experience. In addition, the Court will inquire if your reduction in income is in anyway voluntary (you decide to leave a lucrative job to become an entrepreneur, or artist), or can be attributed to your own behavior (such as engaging in criminal activity, or poor performance). In those cases, your application will be properly denied. 

Contact the Firm of Fass & Greenberg for More Information

When you have questions or concerns about your present or possible future rate of alimony, you can contact the firm of Fass & Greenberg. We are the leading family law firm in Garden City that can give you honest answers and top-notch legal assistance in this matter.

prenuptial agreement

Getting married means more than just signing a piece of paper or having a wedding. It means that you’re going to join your life with another person, and that your lives going forward are going to be legally entangled. Many couples consider signing a prenuptial agreement before getting married, but many aren’t sure if it’s necessary. According to the Garden City NY family lawyers at Fass & Greenberg, it’s something that many individuals should consider before getting married.

According to most family law attorneys in Garden City, you’ll want to consider signing a pre-nuptial agreement if you have any kind of property or assets that you’d want to protect in the event of divorce or death.  For young couples starting their lives together who have minimal assets, there is no need to sign a prenuptial agreement.  Even if one of the parties expects a significant inheritance in the future, that inheritance is considered “separate property” under New York State laws, provided any assets received are not transferred into joint accounts and transmuted into marital property.  

Couples who would be strongly advised to sign a prenuptial agreement would be those embarking upon a second marriage, where there are children from the first.  They may want to protect their children’s inheritances against the rights of the second spouse in the event of death. Also, in a second marriage, there are more often assets accumulated during the first marriage, such as a pension, a business, or an investment account, the appreciation of which, a spouse may want to protect with a prenuptial agreement.

In order to prevent a successful challenge to a prenuptial agreement, full financial disclosure must be exchanged and detailed in the agreement, and most importantly, the agreement must be fair to both parties.  If there is a lack of consideration in the agreement, i.e., the non-monied spouse waives any future right to maintenance or division of assets in the event of a divorce form a multimillionaire spouse, the agreement will be more than likely vulnerable to attack upon divorce.

Most important, both parties should be represented by independent, competent attorneys. Clients who try to save money by executing online forms for prenuptial agreements may be shocked later on to learn the ineffectiveness of these boilerplate templates.

divorce

The division of marital property during divorce can be complex, and the division of investments is no exception. But once it is determined what percentage of distribution between the parties is equitable (whether by the parties’ agreement or by a judge’s order), the division of these accounts can be quite simple. But if one party elects to keep an investment account in exchange for other property, capital gains taxes can make things more complicated.

Is the Investment Marital Property?

The first consideration is whether the investment is marital property.  This depends on whether the investment was purchased with marital funds, which is generally money that was earned during the course of the marriage. Therefore, if a spouse had an investment account before they were married, then that account is his/her separate property.  The increase in the value of separate property during the marriage is also considered separate property unless that increase is caused by the contributions or efforts of the other spouse. This contribution could be active management of the investment, or support as a homemaker while the spouse who owns the separate property actively manages the investment. Generally, if a separate investment increases in value during the marriage due to the active management of either spouse, the increase in value is marital property that is subject to equitable distribution.

Non-Retirement Investment Accounts

Like any other asset in a divorce, investment accounts that are marital property are distributed equitably between the parties.  In most cases, investment accounts are split evenly in equitable distribution. One way to divide marital investment assets is to distribute shares in the account evenly without liquidating the account; this is commonly referred to as “in kind.” This is a clean and simple way to divide an investment account. 

Another way to deal with investment accounts in equitable distribution is for one spouse to keep the entire investment account in exchange for other assets.  For example, if the account is worth $50,000, one spouse could keep the account and give the other spouse $25,000 worth of other assets.  In this scenario, the parties avoid the hassle of transferring shares into another investment account, but must consider the capital gains taxes that are incurred when the account is sold.  Both spouses are responsible for the capital gains taxes from the sale of marital assets.  Therefore, if the account is sold after the divorce has been finalized, the ex-spouse can still be liable for half of the capital gains taxes on the portion of the investment that was marital property.  This liability may depend upon how the parties file their taxes and whose social security number the account is under.  To avoid these complications, the parties should address the issue of capital gains in their settlement agreements.

Retirement Accounts

Retirement accounts are distributed in divorce just like any other investment account.  If the retirement account is an IRA, many companies will allow you to divide the account, in accordance with the provisions of a judgment of divorce.  However, some IRAs and all 401(k)s and pensions require that the parties obtain a qualified domestic relations order (“QDRO”) from a court before they can distribute funds from the account. 

Once the QDRO is signed by the court, the alternate payee has a few options to choose from.  One option is to rollover the funds into his/her own retirement account.  This approach does not incur any immediate penalties or taxes.  Another option is for the alternate payee to receive a direct distribution with no penalty, but a 20% Federal Withholding Tax.  This option is available to spouses of all ages and is perfect for spouses in immediate need of cash.

To avoid these considerations, a payor spouse may elect to retain his/her retirement account and credit the value by exchanging other assets.  This approach requires that the parties consider the income taxes that will be incurred when the retirement account is paid out.  Accordingly, the value of the retirement account will be worth less in the exchange because it is tax affected.

Conclusion

In considering options for investments during a divorce and drafting the provisions of a settlement agreement, both parties must consider tax effects associated with retirement and non-retirement investment accounts.

alimony

The purpose of maintenance is to help the lower-income spouse become financially independent after a divorce.  While these payments are colloquially known as alimony, New York State law refers to them as maintenance.  The lower-income spouse may have given up a career in order to support the higher-income spouse, or they may have grown accustomed to a certain standard of living during the marriage and wish to maintain that standard.  Regardless of the circumstances of one’s marriage, receiving maintenance keeps the less monied spouse on his/her feet until he/she can become self-sufficient or until he/she remarries.

Under New York State Law, there are two types of maintenance: “pendente lite” or temporary maintenance and post-divorce maintenance.  Both temporary and post-divorce maintenance are determined by a set formula.  However, that formula caps the payor’s income at $184,000.

Temporary Maintenance

This type of maintenance provides the lower-income spouse financial support during the divorce action.  To determine the amount of temporary maintenance, the court uses a statutory formula which is based primarily on the spouses’ respective incomes.  The formula requires the court to take the following steps to calculate the amount of temporary maintenance:

  1. Subtract 25% of the supported spouse’s income (or 20% of the supported spouse’s income if there is no child support) from 20% of the paying spouse’s income (or 30% of the paying spouse’s income if there is no child support),
  2. Multiply the total income of both spouses by 40% and subtract the supported spouse’s income from that amount.
  3. Take the lower result of steps (1) and (2).  This is the correct temporary maintenance amount.

For example, if Spouse A earns $100,000 per year and Spouse B earns $50,000 per year, and Spouse A will pay child support to Spouse B, yearly maintenance payments would be:

  1. $20,000 (20% of $100,000) – $12,500 (25% of $50,000) = $7,500
  2. $150,000 × 0.4 (40%) = $60,000;  $60,000 – $50,000 = $10,000
  3. $7,500 per year in temporary maintenance.

Determining temporary maintenance can be complicated where he payor spouse has his/her own business.  Pending a completed business valuation, a determination of actual income can be tricky.

Under these guidelines, the payor spouse’s income is capped at $184,000.  If the payor spouse’s income is higher than the cap, and the judge finds that the temporary maintenance awarded by the income cap is unjust or inappropriate, the judge can adjust the guideline amount of temporary maintenance by considering a number of factors.  These factors are:

  • The age and health of the parties;
  • the present or future earning capacity of the parties, including a history of limited participation in the workforce;
  • The need of one party to incur education or training expenses;
  • The termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
  • The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
  • The existence and duration of a pre-marital joint household or a pre-divorce separate household;
  • Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
  • The availability and cost of medical insurance for the parties;
  • The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
  • The tax consequences to each party;
  • The standard of living of the parties established during the marriage;
  • The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
  • Any other factor which the court shall expressly find to be just and proper.

Post-Divorce Maintenance

Determining how much maintenance will be paid after the divorce can also be complicated.  The best way to decide the amount of maintenance is for the parties to come to an agreement without involving a judge.  This way, the parties have control over the outcome and can use maintenance as one of many bargaining chips in divorce negotiations. However, if this cannot be achieved and a judge decides the issue, the parties have little control over the outcome. 

The same formula used to determine temporary maintenance is used to determine post-divorce maintenance. And if a judge wants to award maintenance that exceeds the amount awarded by the income cap, he/she must consider the same factors listed above with the addition of:

  • The equitable distribution of marital property and the income or imputed income on the assets so distributed; and
  • The contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party.

With so many factors to consider, it is very difficult to predict how a judge will rule on post-divorce maintenance.  Furthermore, the duration of these payments can be a contentious issue.

How Long Does Post-Divorce Maintenance Last?

In most cases, a judge will decide the duration of maintenance payments based on these guidelines:

Length of the marriage Percent of the length of the marriage for which maintenance will be payable
0 up to and including 15 years 15%–30%
More than 15 up to and including 20 years 30%–40%
More than 20 years 35%–50%

For example, if a couple was married for 10 years, maintenance payments would be paid for 1.5 to 3 years.  But if a couple was married for 30 years, maintenance payments would be paid for 10.5 to 15 years.  And much like the amount of maintenance paid, the parties will only have control over the exact duration of maintenance if they come to an agreement without judicial intervention.  Even so, the parties only have “guidelines” to aid in their negotiations, not hard and fast rules.

Tax Considerations

Before the Tax Cuts and Jobs Act of 2017, which went into effect January 1, 2019, maintenance payments were tax deductible for the payor spouse and reported as taxable income for the payee spouse.  Now, there is no deduction for the payor spouse and the payee spouse does not need to claim the payments as income.  This issue is explored in further detail in a previous blog post on our website titled “How Does the New Tax Law Affect Divorce?”

Conclusion

Maintenance can be a great way for a less monied spouse to ease their way into self-sufficiency. But if the parties want to have some control over the amount and duration of maintenance, they should avoid leaving the issue to be decided by a judge. The best outcome is for the parties to come to an agreement on the amount of maintenance that is paid. A capable matrimonial attorney will make every effort to settle the issue of maintenance before it goes before a judge.

divorce casees

Some people seeking a divorce question whether or not they need legal representation. More people are asking this question now that divorce documents can easily be accessed online. However, a divorce entails much more than filling out paperwork and drafting agreements. Dealing with the emotions, the complexities of laws, and custody disputes that come along with a divorce can be overwhelming. It would be in your interest to hire a lawyer to ensure that your rights and interest are properly represented and accounted for. Always remember the famous quote by President Abraham Lincoln who once said “He who represents himself has a fool for a client”.

Emotions

Going through a divorce can bring out a variety of emotions. These emotions can affect your decision making abilities. It is beneficial to have the perspective of an outside legal expert to help keep your emotions in check so you can make rational, well informed, and thought out decisions and agreements.

Knowledge of the law

A divorce case can involve many aspects of the law in addition to domestic relations. Divorces often involve laws pertaining to tax, bankruptcy, real-estate, and trust and estates. It is hard for one to have or gain the knowledge of certain laws in these various fields that would allow them to effectively represent their interests in a divorce case.

It is also important to remember that a divorce case deals with issues that are not only pertinent to your life now but also in the future. Many may not know the laws pertaining to future and unanticipated issues that may arise. These issues need to be considered and addressed. A lawyer will be familiar and anticipate these possible issues and bring them to light in your case. Divorce lawyers have experience and knowledge in dealing with these issues of law and are able to aid in making more informed and favorable agreements for the present and future. 

Custody

When there are children involved in a divorce it is important to have legal representation to help come to a custody agreement that is in the best interest of your child/children. Even if you and your spouse agree upon the custody and decision making arrangements now, this may not be the case in the future. Having a lawyer will likely result in the creation of a more effective custody agreement that will help maintain a functional and stable environment for your child/children in the present and future.  Also, if problems arise later on with the agreement that you had made with your spouse, you may need to return to court to settle a custody dispute and may need to hire a lawyer anyway. Hiring a lawyer during your divorce may help you avoid making ineffective custody agreements and reduce the chances of going through future custody disputes.  

Affordability

Even if you believe having a lawyer is important to help you with your divorce, you may be worried about legal counsel fees. There are affordable avenues you can take to obtain legal counsel for you divorce case. You can reach out to legal aid societies, your county or state bar associations, or simply, your local law schools to get assistance from legal experts.

You will serve yourself and your family well by contacting the Garden City NY family attorneys at Fass & Greenberg right away after you or a family member become the victim of a family offense. You have every right to have a qualified and respected New York family attorney at your side throughout any court proceedings. Contact our office today to begin building your defense.

divorce do and donts

If you are a party in a divorce case, there are things you should do and things that you should avoid. By being mindful of your words and actions during a divorce, you can improve your chances of receiving your desired outcome. Because each divorce case is unique, you should confer with your attorney before taking any action.

What should you do in a divorce case?
During the divorce process, following are a few general suggestions of what you should do:

  • Contact an attorney: an attorney will provide you with legal advice and can represent you in court. By working with an attorney, you will have an advocate on your behalf to assist you in the process.
  • Be careful about what you do and say during a divorce, your words and actions may be under scrutiny. Be careful about what you say, text, and post online. Make sound decisions and avoid doing things that could be detrimental to your case.
  • Be respectful and professional: when you are in court, dress appropriately (a suit for men and clean pressed slacks for women; no jeans ever). be respectful to the judge and other court staff. Be professional in your words, actions and appearance. By showing respect, you will hopefully gain the respect of the judge.
  • Be thorough and organized: as you gather information and prepare for divorce hearings, gather as much information as possible. The more detail you can provide, the less work your attorney has to do, and the less your fees will be.. Organize your information, so as to make your case more efficient.

What you should not do in a divorce
The following are things you should avoid doing in a divorce:

  • Don’t lie or misrepresent: if the truth is revealed, even on a small and seemingly meaningless matter, it could ruin your credibility to the judge
  • Don’t be rude or combative:  It will get you nowhere with your spouse, your spouse’s attorney, and most important, with the court. Don’t say or do dumb things (like run up credit card charges for massages, trips with a paramour, and fancy restaurants, non a card which your spouse is obligated to pay. while it may be difficult to give in to the conflict of a divorce, keep a level head and made good decisions
  • Don’t represent yourself: The Court does not favor the unrepresented, and will not provide advice.  Representing yourself is the best example of being penny wise and pound foolish. 

At Fass & Greenberg our Garden City NY divorce lawyers can provide legal advice and representation. Call us to learn more.

tax law after divorce

The 2017 Tax Cuts and Jobs Act (“TCJA”) made significant changes to the Federal Tax Code.  This act affects divorce settlements by eliminating the taxability of alimony payments and personal exemptions for children, while increasing the child tax credit to $2,000 for each child under 17.

Taxability of Alimony Payments

For decades, spouses who make alimony payments were able to deduct those payments from their federal taxes.  When this deduction was taken, the spouse receiving the payments was required to report them as income on their federal taxes.  This fundamental rule was reversed by the TCJA.  Effective January 1, 2019, alimony payments are neither deductible by the payor spouse, nor reported as income by the payee spouse. 

Essentially, the tax burden of alimony payments has shifted from the payee to the payor.  The difference here is that, in most cases, the payor spouse is in a higher tax bracket than the payee spouse.  Therefore, the money being transferred between the spouses is taxed at a higher rate.  In this way, the TCJA creates a tax savings for payee spouses and a larger tax burden for payor spouses.  To compensate, it is likely that alimony payments will be smaller in future agreements. 

New York State Taxes

To mitigate the effect of the TCJA on alimony payments, the New York State Legislature has maintained the rules of the prior tax law.  For purposes of state taxes, alimony payments are still deductible for payor spouses and taxable as income for payee spouses.

Agreements Signed Before 2019

If a divorce agreement was signed before 2019, nothing will change; these agreements are grandfathered in under the prior tax law.  However, if these agreements are updated after 2018 and the parties want it to be governed by the TCJA, they can stipulate that in the updated agreement.  If the agreement is updated and the new tax law is not referenced, in most cases, it will still be governed by the prior tax law.

Personal Exemptions for Children

Before the new tax law, a taxpayer with dependent children under 19 (or under 24 if full-time students) received an exemption of $4,050 per child.  An exemption, much like a deduction, decreases a taxpayer’s taxable income.  Under this rule, the taxpayer’s savings were dependent on their tax bracket.  For example, if they were in the 24% tax bracket, their tax savings would be $972 per child; if they were in the 32% tax bracket, their savings would be $1296 per child.  However, the TCJA eliminated this exemption in favor of increasing the child tax credit.

Child Tax Credit

Before the TCJA, a custodial parent received a $1,000 credit for every dependent child under 17.  A tax credit decreases a taxpayer’s taxes owed dollar for dollar.  This gives the taxpayer a flat savings, regardless of which tax bracket they’re in.  This credit was available to single taxpayers who earned between $2,500 and $75,000 per year ($140,000 for joint filers), at which point the credit would phase out (gradually decrease to $0).  The TCJA increased this credit to $2,000 and increased the “phase out income” for single taxpayers from $75,000 to $200,000 ($400,000 for joint filers).

These changes are good news for lower-income custodial parents.  Any custodial parent who is in the 24% tax bracket ($82,501 to $157,500) or lower will save more money under the TCJA than under the previous law.  For example:

Taxpayer A:  Single custodial parent of two children under 17, earning $50,000 per year (22% tax bracket).

Prior Tax Law:

($1,000 credit × 2 children) + ([22% of $4,050 personal exemption] × 2 children) = $3,782 Tax Savings

Current Tax Law:

$2,000 credit × 2 children = $4,000 Tax Savings

Conversely, higher-income custodial parents will see their tax savings reduced.  For example:

Taxpayer B:  Single custodial parent of two children under 17, earning $250,000 per year (35% tax bracket).

Prior Tax Law:

($1,000 credit × 2 children) + ([35% of $4,050 personal exemption] × 2 children) = $4,835 Tax Savings

Current Tax Law:

$2,000 credit × 2 children = $4,000 Tax Savings

In short, these two changes mean that parents who earn $157,500 per year or less will save more on their taxes for each child under 17 than they previously saved.  However, this does not account for the lost savings for children under 19 (or under 24 and full-time students) and over 16 that the personal exemption for children would have provided.  While this change won’t likely be a determining factor in divorce negotiations, it’s something to consider when discussing child support.

For a more personalized account of how the new tax laws will affect your divorce, contact Fass & Greenberg today to schedule a consultation. Our experienced matrimonial attorneys are prepared to help you have the most successful case possible.

divorce

It’s no secret that going through a divorce can be expensive.  Living on your own, rent for a potential new living space, and legal fees can lead to financial stress.  If you and your spouse have one or more joint accounts, you may consider withdrawing some of that money to help cover your expenses.  Here are some things to consider before withdrawing from a joint account.

Disclaimer

The best advice is to consult an attorney on the specifics of your case before withdrawing anything.  The contents of this post/article are general and apply to most cases, but may not be applicable to your specific situation.

The Law on Joint Accounts

Once an action for divorce has commenced, a set of automatic orders are applied to both parties.  These orders bar either spouse from removing money from their joint or individual accounts (except for household expenses, regular business expenses, and attorney’s fees).  Therefore, any large withdrawals should be done before the action has commenced.

If you are a joint owner of an account, and you are not bound by any automatic orders, you can legally withdraw all money in the account.  However, in most cases, judges rule that joint accounts should be split equally between the parties.  This means that if you remove more than half of the money in the account, in preparation for the upcoming divorce, you will likely be forced to pay the excess (amount exceeding half of the value of the account) to your spouse at the end of the case. 

For example, let’s say you and your spouse have a joint checking account worth $20,000.  If you remove $15,000 before commencing the action, you will likely be required to pay $5,000 to your spouse at the end of the case.  However, if you remove $10,000 before commencing the action, your spouse will simply keep what remains in the account and you won’t have to pay anything extra.

The easiest solution is to remove no more than half of the money in the account; you will likely face no legal repercussions for doing so.

Practical Considerations: Avoid Starting a War

In a divorce, there is more to consider than simply what is legal.  In many cases, if one spouse removes funds from an account without discussing it first, the other spouse sees it as an attack and seeks vengeance in other ways.  The last thing anyone wants is a race to clean out every account the parties own; there are other ways to go about removing the funds.

Perhaps the best option is to have a civil discussion with your spouse about splitting the joint accounts before the action is commenced so that you can both live comfortably during the divorce.  Coming to an agreement like this can reduce financial stress and start the divorce off in a cooperative mood.  However, in many cases this is not an option.  If there is already bad blood between the parties, a civil discussion may be a fantasy.

If a civil discussion is off the table, but you don’t want to risk starting a war with your spouse, you could choose not to take any funds out of the account.  The automatic orders allow both parties to use their accounts to pay attorney’s fees and reasonable expenses at will.  While this would allow you to pay your expenses without removing large sums of money, this could lead to more litigation (and more attorney’s fees) if your spouse feels that something you spent money on was unreasonable.  Additionally, you risk your spouse removing money from the joint account, leaving you without enough money to pay your expenses.  Even if your spouse’s withdrawal is in violation of the automatic orders, you can be left in a difficult financial situation for a significant period of time.

Conclusion

While it’s fairly clear when one can take money out of a joint account, it’s not always easy to decide when one should take money from that account.  No solution is perfect, but it’s important that everyone makes the decision that works best for them.  Before making a decision, one should discuss the specific details of their case with an attorney. 

For those considering divorce or experiencing other family issues, contact Fass & Greenberg today to schedule a consultation. Our experienced matrimonial attorneys are prepared to help you have the most successful case possible.

distribution of marital assets

Contrary to popular belief, once a Judgment of Divorce is signed by a Judge, the divorce process is not over. There are additional steps parties need to take in order to effectuate the provisions of an Agreement, or Order, to distribute assets such as retirement accounts and real estate from one spouse to another.

  1. Retirement Account Distribution

Qualified retirement plans such as defined benefit plans, employee stock ownership plans (ESOP) and 401(k) plans are all governed by the Employee Retirement Income Security Act (“ERISA”). ERISA is a federal law that governs the distribution of benefits from an employee/participant to the non-titled spouse or alternate payee. If a retirement plan is private, such as the ones mentioned above, a Qualified Domestic Relations Order (“QDRO”) is needed to distribute the funds in that retirement plan. A QDRO begins as a Domestic Relations Order (“DRO”) which is then submitted to the retirement plan for qualification. Once qualified by the plan, the DRO becomes a QDRO.

Another distribution tool for a retirement plan is a Court Order Acceptable for Processing (“COAP”). Retirement benefits provided by the military, federal government, county, city or state do not classify as qualified retirement plans, and therefore ERISA terms do not apply. Since federal employees cannot distribute their retirement plans through a QDRO, a COAP is needed.

The language in a QDRO or COAP must mirror the language in a Stipulation of Settlement. When drafting a Stipulation, it is important to include all of the benefits that are available. If possible, it is best to obtain a description from the plan to clarify what benefits should be included. If a possible benefit is not included in the Stipulation of Settlement, the QDRO or COAP cannot include it, and malpractice may result.

Some pensions end at death, but many pensions provide for payments to a surviving spouse or dependents, such as children. A survivor benefit is a benefit which is paid by a pension plan to the designated alternate payee upon the death of a participant. The federal law, ERISA, requires private pensions plans to provide benefits to the alternate payee. Unless waived by a spouse, any payment during a participant’s lifetime must be as a qualified joint and survivor annuity (“QJSA”). A QJSA is an annuity for the participant’s life with a survivor annuity for the alternate payee’s lifetime. The survivor annuity may not be less than 50% or more than 100% of the annuity payable during the joint lives of the participant and alternate payee. 

  1. Different Deeds to Sell/Distribute a Residence

There are numerous types of deeds a grantor (the seller of the property) can execute while in the process of either selling or relinquishing their residence. In a divorce case, the transfer is most typically between husband and wife (as grantor) to the other spouse (as grantee). The parties could execute a Warranty deed, Quitclaim deed or a Bargain and Sale deed.

  1. Warranty Deed

A Warranty deed provides the greatest protection to a grantee (a person who buys a residence). A Warranty deed assures the grantee that the grantor is conveying both present and future covenants on the property. An example of a present covenant is the covenant of seisin. The covenant of seisin warrants that the title is being conveyed to the grantee. Moreover, a future covenant, such as the covenant of further assurances, requires the grantor to do whatever necessary to clear a defective title. A warranty deed is generally used the most in property sales.

  • Bargain and Sale Deed

A Bargain and Sale deed is the most typical deed that is utilized in a divorce proceeding. It can also be used when a deed is transferred between close family and friends or from a foreclosure or tax sale. A Bargain and Sale deed does ensure that that the grantor has title to the land but, does not guarantee that the property being sold is free of encumbrances. However, a Bargain and Sale deed can include covenants against grantor’s acts. This is a promise within the deed by the seller that it has not done any act which would encumber the title it seeks to convey.

  • Quitclaim Deed

A Quitclaim deed is an instrument for conveying interest in a property that excludes a warranty. The grantor is essentially disclaiming and turning over its interest without defining what the interest is. A Quitclaim deed is normally used to add or remove a person from the title, such as a spouse or family member. Quitclaim deeds are sometimes used during a divorce proceeding when a spouse is being removed from the title of a residence or property.

For those struggling with divorce deeds or other family issues, contact Fass & Greenberg today to begin building your case. Our Garden City NY family attorneys are prepared to help you have the most successful case possible.

Spousal Support After My Divorce

Temporary spousal support is awarded by agreement or at the discretion of the judge to permit the non monied spouse to either defend or prosecute the divorce litigation. Our divorce attorneys in Garden City NY can petition the court for temporary alimony prior to the dissolution of your marriage. The interim order can give you and your children much needed support prior to the distribution of your marital assets and liabilities, and level the playing field. Either party may be awarded attorneys fees when applying for an interim order.

Divorce is time to plan your future. All the property you acquired while you two were married has to be inventoried and equitably distributed. Equitable means fair not exactly equal. Marital assets and debts will be allocated to you or your spouse. The duration of your marriage is a major factor in the distribution of your assets. Although the amount  of alimony you can receive is based on numerous factors, such as the income of the parties, the duration depends upon the length of the marriage.

Permanent Alimony 

Permanent alimony has become more difficult to obtain.  Courts are becoming more sensitive to the right s of the monied spouse to be able to retire upon reaching social security age.  The amount of permanent alimony/maintenance is calculated based upon a combined income of no more than $184,000.00 per year.  Although the law is helpful in advising clients with incomes within the guidelines, it is more difficult to guide those in the higher tax brackets, since the guidelines do not apply to them.  In addition, since January 1, 2019, alimony on a Federal level, is no longer tax deductible to the payor spouse.  We have yet to see how this will affect support awards.   

Call or contact our Martindale AV Preeminent family law attorneys for an initial consultation if you’re in the process of divorce in Long Island, Nassau or Suffolk County, New York. Fass & Greenberg, LLP divorce attorneys in Garden City, New York, devote their entire practice to matrimonial and family law. Our attorneys limit their caseload to give you their undivided attention.

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