How Does the New Tax Law Affect 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.
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.
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.
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.
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.
- 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.
- 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.
- 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.
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 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.
Few matters are as important as being able to see your children. Unfortunately, visitation can be a difficult topic to broach and an even harder process to undertake on your own. If you are concerned about being able to see your children, it’s always important to speak to an experienced attorney. Below are a few things that you need to be aware of in the process.
Perhaps the most important reason to work with an attorney when it comes to visitation is that doing so puts you on equal footing with the other party. Whether or not the other person has representation is irrelevant – having your own attorney gives you access to the same tools that the other party could access at any time. If you choose to work without an attorney, you may be choosing to put yourself at a disadvantage.
A good attorney is also a fantastic resource in terms of professional knowledge. He or she will provide access to actual legal resources; giving you a chance to make your choices based on reality rather than just on your assumptions and/or emotions. Many people have very specific thoughts about visitation, some of which are based more on hearsay and media portrayals than the reality of the law. If you want to know what you can realistically expect from your visitation agreement, you need the help of someone who can understand your unique situation, and apply the law to it.
If you are concerned about your visitation rights or you feel like you need professional advice, make sure to speak to an attorney. Visitation is too important a process for you to undertake on your own, so always make sure that you have the help of an attorney who is skilled in family law. When you’re ready to get the help you deserve, make sure to contact the Garden City NY family lawyers at Fass & Greenberg.
An annulment of marriage is a legal decree that a marriage is void. Unlike a Judgment of Divorce, which recognizes the existence of a marriage and dissolves it, an annulment treats the marriage as if it had never existed. Some spouses prefer an annulment because they believe a divorce carries a stigma. When a spouse wishes to obtain an annulment, the spouse must demonstrate one of the five following causes of action:
- Party was a minor when married: A marriage of any person under the age of 18 needs the written consent of both parents. If this requirement is not abided by, the spouses or the spouses’ parents can seek an annulment.
- Consent for the marriage is obtained by force, duress or fraud: If a person enters into a marriage due to the force or pressure of another individual, the person forced into the marriage could seek an annulment. Common examples of fraudulent marriages are: marrying for the purpose of obtaining immigration status; claiming to be pregnant to entice someone to marry; and claiming you want to have children when you will not.
- Lack of mental capacity to give consent to get married: If an individual or a spouse was mentally ill or incapacitated at the time of the marriage, the marriage may be annulled.
- Lack of physical capacity to consummate the marriage: If you or your spouse is physically unable to engage in sexual intercourse, and you did not know of the incapacity at the time of your marriage, the marriage may be annulled as long as you ask for the annulment within the first five years of marriage.
- Incurable mental illness for a period of five years or more: If your spouse is mentally ill for more than five years and cannot be cured, you may be able to obtain an annulment.
Prior to the enactment of DRL §170(7), a spouse needed to prove one of the following causes of action to obtain a divorce: cruel and inhuman treatment, abandonment, confinement of Defendant in prison for a period of three or more consecutive years after marriage, adultery, or that the spouses have lived apart pursuant to an agreement. See DRL §170. On August 15, 2010, then-Governor David Patterson signed the no-fault divorce bill which affects all divorces commenced on or after October 12, 2010. This provision referred to as the “no-fault divorce” cause of action only requires a spouse to demonstrate that “the relationship between husband and wife has broken down irretrievably for a period of at least six months” to constitute a cause of action for divorce. Since then, a divorce is significantly easier to obtain than an annulment in the State of New York.
Nevertheless, a spouse may still wish to pursue a religious annulment if they want to remarry in a church. For example, in the Catholic faith, a spouse cannot remarry in a church until the marriage is thoroughly examined by the local diocesan tribunal and an annulment is rendered. An annulment is granted if the church finds that the marriage actually fell short of at least one of the essential elements required for a binding union. On the other hand, in the Jewish faith, an annulment is not required for remarriage. A husband must obtain a religious divorce, commonly referred to as a Get. Without a Get, the husband and wife even if divorced civilly, are still considered married in the Jewish faith.
Effects of an Annulment on Children
If a couple’s marriage results in an annulment, there is no affect on the legitimacy of the children born during the marriage. Both spouses remain responsible for any minor children. A court deciding an annulment, similar to a court in a no-fault divorce, will render orders for custody, visitation and child support.
The Garden City NY family lawyers at Fass & Greenberg can help address whether an annulment or no-fault divorce may be right for you. Contact our office to get started on your case today.
When two parties have a legal disagreement, going to court is the next step that most assume should be taken. Potential clients may believe that a day in court with attorneys and a judge present is the best option. While that does occur, mediation is sometimes a more viable and less costly alternative. If the parties are able to maintain civility and respect for one another, mediation cuts the costs of litigation, which can amount to tens of thousands of dollars. Florence M. Fass and Elena L. Greenberg have extensive experience in both the litigation and mediation arenas. In addition to their extensive mediation training, they each have 35 years of courtroom experience. Their combined training and skills make them the ideal Garden City NY family law attorneys for mediation clients.
What is Mediation?
Mediation is an alternative process to resolve disputes where the two parties try to come up with a solution with the help of a neutral third party. Although not necessary, it is recommended that a mediator have a legal background to ensure an agreement is legally binding. Mediators at Fass & Greenberg are familiar with the laws of New York and can offer guidance in the areas of family law, such as child custody, support and asset distribution to help the parties reach an agreement.
Why Should You Hire Us as Your Mediator?
A variety of questions can arise during mediation. One common question is about confidentiality. In New York, the Court of Appeals confronted this issue of mediator confidentiality in Hauzinger v. Hauzinger, 10 N.Y.3d 923 (2008). In this case, during a divorce action, the wife wanted to disclose information which was discussed by the parties during a prior mediation. The husband opposed this disclosure. The court ruled that since the husband had signed a waiver releasing the mediator from maintaining confidentiality, no confidentiality existed. The attorneys at Fass & Greenberg can help address these and other issues which may arise during the mediation process. Contact our office to get started on your case today.
In New York, child support payments are a component of child custody. In most cases, the custodial parent receives direct payments from the noncustodial parent until the child or children reach emancipation. New York has specific requirements for the amount of child support the noncustodial parent must pay, essentially, the child support payments cover the living costs for the child i.e. expenses related to power, water, clothing, and groceries. However, there are additional “add ons” such as medical expenses, summer camp, childcare and extracurricular activities, in addition to basic child support. These expenses are typically shared by the parties on a pro rata basis.
The Basis of Child Support
In New York, child support is determined on both parents’ combined incomes and the number of children. The applicable percentages in New York are: 17% of income for one child, 25% of income for two children, 29% of income for three children, 31% of income for four children, and 35% income for five or more children. Once an amount of child support is established, i.e., $25,000 per year for two children based on a combined parental income of $100,000, then the court apportions each parent’s responsibility based upon the proportion of their income to the entire amount. For example, if the non-custodial parent earned $60,000 per year and the custodial parent earned $40,000 per year, then the non-custodial parent would be required to pay 60% of $25,000, or $15,000 per year. The child support “cap” is currently at $148,000, which means if combined income is more than this amount, the court has discretion to deviate from the above standard. When combined parental income is in excess of $148,000, the court can apply a strict amount in accordance with the calculation, or if the support would be unjust or inappropriate, the court will deviate from the $148,000 cap. The factors for deviation are located in Domestic Relations Law §240(1)(f). A few of these factors are: the financial resources of the custodial and non-custodial parent; the physical and emotional health of the child and his/her special needs and aptitudes; the standard of living the child would have enjoyed had the marriage or household not been dissolved, etc.
Medical Insurance, Expenses and Childcare
In a divorce case, all requirements for health insurance and any special medical needs are listed in the agreement separately from child support payments. The noncustodial parent won’t receive a deduction in their child support payments by paying for coverage for the child or by paying the cost of consistently required medical costs. Instead, they are “added on” to the basic child support payments. The standard calculation to determine “add ons” such as medical and child care is “pro rata” in proportion to the parties’ income.
Increases & Decreases in Child Support Payments
Either parent has the legal right to petition the court for an increase or decrease in child support payments. This is typically known as an upward or downward modification. There are three elements a parent needs to show: first, a substantial change in circumstances; second, three years have passed since the order was issued; and third, a 15% increase or decrease in either parent’s income since the original order was issued. Moreover, if a parent is getting paid through support collections and there is a change in the cost of living index, the parent will receive notice that he or she is entitled to a cost of living increase. The parent then has the choice to accept or object to the increase. When objections are heard, a de novo review of the parties’ incomes and financial circumstances is triggered. This does not automatically result in an increase in support, even where the payor spouse has increased income. In Murray v. Murray, 164 A.D.3d 1451 (2d Dept. 2018), a case in which Ms. Greenberg represented the payor spouse, the payee spouse actually received a reduction in support when the court looked at the totality of the circumstances, including the fact that the payee spouse’s income doubled and the payor spouse had additional responsibilities.
Failure to Pay Child Support Payments
The custodial parent has the legal right to report the noncustodial parent if they don’t pay child support. This is what is known as an enforcement petition. If a non-custodial parent is behind on payments, there are certain punishments the payor can face. One punishment is when the payor has an income deduction on their salary. This means that on each pay period that the payor gets paid, an amount is withdrawn and paid towards the child support obligation. A second punishment is suspension of the payor’s license. Lastly, the payor can face jail time for lack of payment.
For those in need of legal assistance regarding a child custody or other family law case, contact our Garden City family lawyers to determine your available options.
For most, court appearances, whether it be for a conference, a motion, or a trial, present a very novel type of situation. It is not that people do not know what the appearances are, but rather that they do not know what to expect. If you are required to appear in a court conference, you should keep the following in mind:
Do Not Speak Out of Turn
It is easy for emotions to run hot during something as important as a divorce. You might hear somone from the other side say something to which you disagree, and your natural inclination might be to respond. Remember, though, that there are rules in court and that breaking them can hurt your case. You should never speak out of tur in court – it is your attorney’s job to speak for you and your job to give the attorney the information he or she needs to do his or her job. Bide your time until it is your tun to speak, and then let the truth be known in a proper manner.
Do Not Lie
It can be tempting to lie and make yourself look better, especially if you think the other party is doing so. The truth, though, is that lying is one of the worst things you can do in any court-based situation. Hiding income, making up accusations, or purposefully misstating facts is not only immoral, but it is also perjury. Do not give in to the temptation to make your case sound better by lying. Instead, rely on the facts and your attorney to get the job done.
Listen to Your Attorney
Perhaps the most important thing to remember while you are in the midst of a divorce case is that you are working with a professional. If you have contacted Fass & Greenberg, LLP for help, it is because they know what they are doing. The last thing you want to do is a waster all of your time and effort by deciding you need something radically different at the last moment. It is important to keep in contact with your lawyer so he or she knows what your plans are, so that surprises don’t happen in the courtroom.
If you are involved in a contested divorce action, the best thing you can do is listen to your attorneys. The lawyers at Fass & Greenberg can provide you with the guidance you need to make the right moves in court. If you are looking for Garden City divorce attorneys, contact Fass & Greenberg.
Family offenses in the State of New York can consist of a wide range of acts. These types of cases are brought when one family member accuses another family member of committing certain acts against him, her, or a third-person family member. Family members are defined as any one of the following under New York law:
- People who are related by blood or marriage
- People who were once married to each other
- People who are not married but have a common child
Types of Prohibited Acts
You will want to speak with a family lawyer from our office if you have been the victim of any of the following acts by a family member:
- Harassment or intimidation
- Criminal mischief
- Disorderly conduct
Orders of Protection
Litigants residing together in the same house must be very careful of their spouse provoking incident in order to obtain exclusive occupancy of the house in a matrimonial action. When a person is charged with a family offense, he or she might also be the subject of a petition for an order of protection both in family court and/or criminal court. Litigants must be very careful before agreeing to an order of protection; even without any immediate arrest and a jail sentence for up to six months.
We’ll Advocate for You
The Garden City NY family attorneys at Fass & Greenberg recommend that you not go through emotionally burdensome family offense and order of protection process on your own. Even if an order of protection is entered into on your behalf, it’s only temporary. Another court date will be set for purposes of entering a final order. We can add any number of other terms and conditions to that final order.
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.