Pennsylvania Family Law Blog

A discussion of family law issues, published by Mark E. Jakubik

Archive for July, 2007

Divorce and Your Kids Insurance

Posted by Mark Jakubik on July 29, 2007

Mom and Dad don’t live together anymore. Your child has two beds, two sets of teddy bears, two groups of friends, and two homes. And, as the years go by, these two homes may be further and further apart. It’s important that your child has health coverage in both homes. But how will you achieve this? And who will pay for it?Just one trip to the emergency room may result in many large medical bills. Health care costs can add up quickly, so you’ll want to make provisions for your child’s continued health coverage as soon as possible.

Here’s what you need to know:

You’ll need to decide who will be responsible for your child’s health coverage, and how it will be obtained - through your employer? your ex’s employer? both? If neither of you are eligible for group coverage, then you’ll want to decide how you plan to keep your child covered, and who will be bearing the costs, if any. Make sure you put these decisions in writing!

Residence is not a factor. Parents sometimes assume that they’re not responsible for their child’s health coverage because the child no longer lives with them. Not true! A custodial parent may, at any time, file a Qualified Medical Child Support Order (QMCSO) to get health coverage for their child through the other parent’s employer-provided health plan. A QMCSO may also require that the premium be deducted from the non-custodial parent’s paycheck or that the non-employee parent be made aware of all aspects of the healthcare plan.

You’ll need to know the geographic boundaries of your child’s health plan. Many managed care plans do not provide coverage outside a certain geographical area.

A fee-for-service policy sometimes provides better geographic reach than HMOs and PPOs that restrict you to one primary care physician. Talk with your employer, or your ex-spouse’s employer, about your options. Note: Some specially-designed plans allow children to be added as guest members during their stay with their non-custodial parent.

Both parents can include (or add) the child in their group health plan. While experts often advise against such double coverage for most families, children of divorced parents often benefit greatly. Double coverage can help keep your child covered at both houses, even if they are miles apart. The plans are designated as ‘primary’ and ’secondary.’ The secondary plan will cover many of the costs not covered by the primary plan, including expenses outside the coverage area of the primary plan.

Which is which? To decide which parent holds the primary plan, health insurance companies commonly use the birthday rule. The plan of the parent with the first birthday of the calendar year becomes the primary plan. (The birth years don’t matter)

Hold on to any group health plan you have at the time of the divorce. Individual plans may be able to reject your child if he or she has any medical conditions such as asthma or frequent ear infections. (Rules vary by state.) They can also accept your child but refuse to pay for pre-existing conditions.

If your child has an ongoing or recurring health problem, you’ll want to make every attempt to maintain continuous group health plan coverage throughout the divorce proceedings and beyond. Group plans are the only plans not allowed to reject the child or limit coverage due to pre-existing conditions (unless there’s been a significant gap in coverage).

No group health plan available? You may want to purchase individual insurance for your child. Shop carefully; the cheapest plan might not be the best value if it doesn’t offer the most-needed benefits. Individual plans don’t often include preventive care.

Can’t afford individual insurance? HealthCareCoach.com has articles about children’s health insurance that you can afford. If you are a moderate-income family you may be able to qualify for the State Children’s Health Insurance Program. If your family’s income is lower, your children may qualify for Medicaid.

SOURCE: HealthCareCoach.com

(Via Georgia Family Law Blog.)

Posted in Children, Divorce, Finances | 3 Comments »

Doing Business With Your Spouse

Posted by Mark Jakubik on July 29, 2007

Do any of these remind you of yourself?

1. You want to take your spouse into the business?
2. Or you have a business, maybe at home, and your spouse is just helping out?
3. Or are the two of you are thinking of starting a business together?

I suggest - strongly - under any of these scenarios that you get yourself to an attorney now.

Why? Take the second scenario first because it hides its problems like a snake in the grass. You may not know that the law can imply partnerships by actions as well as by a formal agreement. Two spouses start a business and even without a formal agreement, a partnership can be created by their acts. I willingly admit to an aversion against partnerships. I think most attorneys do not like them. Law school beats us over the head to avoid liability for our clients as much as possible. If anything goes wrong with a partnership, then business creditors can go after all the joint assets. Since most businesses fail, why would you not be talking to a lawyer before problems start?

The other two scenario at least get the horse before the cart. The first scenario might only require tinkering with the business format and maybe a prenuptial agreement or a post-nuptial agreement while the third does require advising on the business format (corporation, limited liability company or partnership) and a post-nuptial agreement.

Why a prenuptial/post-nuptial agreement? If the clients want to keep the business running as long as possible, they need to consider all of the problems including divorce. I think this kind of l agreement needs to be considered regardless of the business type used by the husband and wife. With a partnership and limited liability company having a written document (and a LLC requiring a written operating agreement) setting out how the business shall be run, incorporating some of the prenuptial/post-nuptial’s terms does not seem out of place. Based upon that reasoning, they need a separate prenuptial/post-nuptial agreement if the business is to be set up as a corporation.

Then they need to consider their retirement and estate planning objectives. If the business entity is a partnership or a limited liability company, these objectives need expression in the partnership agreement or the LLC operating agreement and for corporations in a separate document.

Source: Sam Hasler’s Indiana Divorce & Family Law Blog

Posted in Business issues, Postnuptial Agreements, Prenuptial Agreements | No Comments »

Divorce Finances

Posted by Mark Jakubik on July 28, 2007

Five things every woman needs to know about divorce and making sure you’re taken care of.

First, many states determine the value of retirement assets to be split based on the official date of separation, not divorce. So, if you separated
in May 2006 but don’t divorce until 2007, the courts may direct you to
divide assets as of May 2006. So, if your husband is about to get a
bonus you should wait to separate. Or if you’re expecting a bonus, get
out fast.

Second, if you leave your husband the house, make sure he refinances immediately and takes your name off the mortgage. If your name is on it and he defaults, it will affect your credit.

Third, make copies of all your recent financial statements so there’s an accurate record of all money to be split.

Fourth, make sure you know about all the credit cards taken out during your marriage. If you have any cards with balances on them, pay them off and close the accounts.

Fifth, if you’ve been married for at least ten years you qualify to receive half the amount of your husband’s benefits when you reach full retirement age. And, even after divorce, if your ex-husband dies you’re entitled to survivor’s benefits starting at age 60.

Read more at WLWT.com.

(Via California Divorce and Family Law.)

Posted in Divorce, Finances | Comments Off

Health Insurance and Divorce

Posted by Mark Jakubik on July 27, 2007

1. How will my divorce impact my health insurance benefits?A divorce causes major issues with health insurance benefits. Many families have an employer provided and/or paid for health insurance benefits that cover health insurance for the entire family. After a divorce, the spouse with the family health insurance coverage can no longer cover the other dependent spouse. They are no longer “family” members who can take advantage of the employer-based health insurance policy. There is no way around this unfortunate reality. If a couple gets divorced, then the dependent spouse will lose his or her health insurance coverage. If both parties do not have adequate health insurance benefits available, and if the cost of obtaining COBRA benefits or an alternative health insurance policy is too costly, then there is one way to continue benefits without additional cost. That way is to enter into a separation agreement, but to delay filing for divorce. That way, the parties actually do remain married and they can stay on the same health insurance plan even though they are separated. The parties can consent to waiting for one, two or more years before either spouse files for a divorce. While the parties will remain married, their property, custody, and support issues will be addressed in their separation agreement. Under some circumstances, this is an optimal resolution. Another option for divorcing couples is for the dependent spouse to obtain COBRA coverage. COBRA is a federal law which mandates that a person covered under a health insurance policy be given the right to continue that coverage, at their own cost, for a set time period if certain requirements exist. For example, if you obtain a divorce and if your spouse had family health insurance coverage through his employer, then the employer would have to provide COBRA coverage for you after the divorce. That COBRA coverage would require that you have the same health insurance policy, although your coverage would now be individual and not family. You would have to pay the employer’s cost for that individual policy.

Read the rest of this entry »

Posted in Divorce, Finances | No Comments »

Wife’s Student Debt Is Costing Husband - Injured Spouse

Posted by Mark Jakubik on July 24, 2007

Here is a great Q&A from Bankrate.com. The advice in the answer applies not only to student loans, but to overdue child support.

Q:

My wife had a student loan, but the school went bankrupt before she could finish the course. She did not get her training and the school kept all tuitions. For the past 17 years when we’ve filed taxes, the state of Florida has been taking them. The federal government has dismissed the loan, but a company in Florida bought the loan and somehow they got approval to take my tax refund. Can they take my tax refund even if it was incurred before our marriage? How can I make them understand that the student loan has been charged off?

A:

IRS Tax Topic 203 discusses the Treasury Offset Program for past-due obligations. These include amounts owed for child support, federal agency debts and state income tax obligations.The Treasury Department’s Financial Management Service, or FMS, acts as a collection agency for the creditor that notified them of the past-due debt. FMS will send you a notice if an offset occurs. The notice identifies your original refund amount, your offset amount, the agency receiving the payment, and the address and telephone number of the agency. The IRS will not be informed of the agency receiving the offset, but FMS will notify IRS of the amount taken from your refund.

Since the debt is only your spouse’s, you are entitled to your portion of the refund even though you are filing a joint return. According to Tax Topic 203:

If you filed a joint return and you’re not responsible for the debt, but you are entitled to a portion of the refund because you reported income, payments, or credits on the return, you may request your portion of the refund by filing Form 8379, Injured Spouse Allocation. Attach Form 8379 to your original Form 1040 or file it by itself after you are notified of an offset. If you file a Form 8379 with your return, write “INJURED SPOUSE” at the top left corner of the Form 1040. Because the IRS will process your allocation request before an offset occurs, filing Form 8379 with your original return may take 11 to 14 weeks from the date of filing to process your return.

The IRS does not get into the validity of the debt. You should contact the agency shown on the notice of offset if you believe you do not owe the debt or you are disputing the amount taken from your refund.

Source for post: Kansas Family & Divorce Lawyer

Posted in Child Support, Finances | No Comments »

Collaborative Law and Mediation: What’s the Difference?

Posted by Mark Jakubik on July 23, 2007

In mediation, there is one “neutral” who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

Source: DivorceNet.com

Source for post: Oklahoma Family Law Blog

Posted in Alternative Dispute Resolution, Collaborative divorce, Divorce | No Comments »

Prenuptial Agreement FAQ’s

Posted by Mark Jakubik on July 14, 2007

Why is a prenuptial agreement a good idea?

One in three of all first marriages end in divorce, as well as 50 percent of second or third ones. A prenuptial agreement is smart financial planning, since marriage is not just an emotional and physical union - it’s also a financial union. A prenup and the discussions that go with it can help ensure the financial well-being of the marriage. It is like an insurance policy you hope you wont need it, but in a divorce it may help eliminate some of the emotion that’s naturally involved.

A fairly negotiated prenuptial agreement can provide some reassurance to the wealthier spouse as to the extent of the financial impact of a divorce; at the same time it gives the less wealthy spouse some guarantee of his or her entitlement to a property distribution and/or maintenance upon a divorce.

Couples without a prenuptial agreement will have their assets distributed for them by the state if the marriage ends and they disagree about who should get what. Without a prenuptial agreement, assets could end up in the hands of your spouse’s children from a previous marriage instead of your own kids, or they could go to a lazy mate who did nothing while you worked hard at a business or profession that eventually became a big success.

Read the rest of this entry »

Posted in Divorce, Prenuptial Agreements | No Comments »

Tax Deductibility of Payments in Divorce Cases

Posted by Mark Jakubik on July 10, 2007

One of the most frequently overlooked areas of family law is that of tax consequences.  Many family law practitioners do not fully understand the in’s and out’s of the applicable tax laws, which can result in their clients having unwanted “surprises” down the road.  Alan Pearlman of the Chicago Family Law Blog recently published the following article, which does a great job of analyzing and explaining the major tax issues for property division, child support, and alimony that divorcing parties should consider.

Prior to filing for divorce, various federal tax considerations should be reviewed due to their potentially profound implications. Among the major issues commonly covered in a divorce decree or agreement are: alimony, sometimes referred to as “spousal” or “separate maintenance” support; division of property; and child support. Each has its own tax treatment and implications.

Division of Property

Most divorces involve a division of the property owned by the couple. Such a division of property is not usually a taxable event, i.e., neither owes taxes nor gets a deduction from income because he or she receives certain property as a result of the divorce.

There are, however, tax implications following divorce that affect future taxes. More specifically, selling personal and real property in the future may require spouses who received such property (pursuant to a divorce) to pay taxes in connection to that property.

Personal and real property have a “basis” for federal tax purposes. The basis is usually the purchase price of the property. When the property is sold later, the amount by which the sales price exceeds the basis is called “capital gain.” Capital gain is usually taxable at special rates. Thus, when property distributed pursuant to a divorce decree is subsequently sold by the receiving spouse, the receiving spouse may be required to pay taxes on the proceeds of the sale.

For example, in a divorce, the wife may receive the family home while the husband might receive stock or other investments equal in value to the house. If the house has a lower basis than the stock, when both are sold, the husband could end up with significantly more money, because he owes less capital gains tax.

On the other hand, under tax law applicable at the beginning of 2004, the first $250,000 (for individuals) or $500,000 (for couples) of the taxable gain on the sale of a qualifying personal residence is exempt from tax. In light of these tax issues, selling the house before the divorce, then dividing the proceeds, might make more sense.

Child Support

The parent who is granted custody of the child or children from the marriage, usually receives a set amount of money per month as “child support.” Child support payments are not includable in the taxable income of the receiving spouse and are not tax deductible by the spouse making the payments.
If the written agreement or divorce decree orders both child support and alimony and the spouse making the payments pays less than the required total amount, for tax purposes, the child support obligation is deemed paid in full first. Only money exceeding the amount of the child support obligation is treated as alimony.

Alimony or “Spousal Support”

In general, for federal income tax purposes, alimony and “separate maintenance payments” are “deductible” from the income of the spouse paying and includable in income for the recipient. “Deductible” for federal income tax purposes means it is subtracted from a taxpayer’s gross income before taxes are calculated, resulting in lower taxes. Taxpayers with a threshold amount of deductions must file a particular form with the IRS when paying income taxes and list such deductions.

Between the time a couple separates and a divorce decree is granted, one spouse may pay money for the support of the other spouse. These payments are deductible as long as they are made pursuant to a decree, court order or a “written separation agreement.” In order for alimony payments to be deductible, federal tax laws and regulations require the following:

  • The payments are made in cash, check or money order (no promissory notes, transfers or use of property, transfer of services, etc.) to the spouse, or to a third party in lieu of alimony at the written request of the recipient spouse, stating the payments are intended as alimony, and the request is received before the tax return is filed
  • The divorce decree, order or the written agreement of the parties does not identify the payments as something other than alimony
  • The spouses do not file a joint return with each other
  • The spouses are not members of the same household when the payments are made, if they are legally separated under a decree of divorce or separate maintenance – separation within the family home is not sufficient
  • There is no liability to make the alimony payments after the death of the recipient spouse – if part of the payment amount continues after death, that portion is not deemed alimony, and if all of the payment continues, none of it is alimony
  • The alimony payments are not treated as child support

Source:  “Deductibility of Divorce-Related Payments” by Alan Pearlman, published at his Chicago Family Law Blog.

 

Source for post: South Carolina Family Law Blog

Posted in Divorce, Finances, Taxes | No Comments »

Seven Tips for a Better Divorce

Posted by Mark Jakubik on July 9, 2007

There are some actions anyone can take to improve their chances of having a more favorable outcome and avoid some of the problems that occur during a divorce. Seven of the best tips from Texas family law attorney, Dick Price, are listed below:

  1. Be prepared. If you know ahead of time that you will (or may) be going through a divorce, it really pays off for you to gather documents and information about important issues, such as your finances. You may uncover unknown assets or you may just have proof of the existence and values of assets, which would probably help save quite a bit of money.
  2. Plan for changes and be flexible. Realize that your family will become two separate units and that will stretch your resources. You may have to change your short- and long-range goals. In almost every case, someone virtually ’starts over’ and often both parties really struggle. Accept the need to compromise and be open to new ways of doing things.
  3. Be honest with your attorney. He or she can’t do nearly as good a job with faulty information. Virtually everything you tell an attorney is confidential, so don’t hold back.
  4. Prepare to use specialists. Attorneys can be very good helping you with the law, facts and procedure, but they often don’t know as much about specialty areas such as taxation as a CPA or divorce financial planner does. The process can move faster and better if you use (as needed) a:
    • Counselor/therapist, if you are sad or mad.
    • Financial planner, if you don’t have much experience in finances.
    • Business valuation expert for small businesses.
    • Child specialist to help find solutions for visitation, child support issues, living arrangements, etc.
  5. Look at the big picture. Don’t get lost in insignificant issues or in keeping score to see who wins the most points. If you start to slip into arguing about tiny issues, make yourself go back up to the broader issues and get your spouse off the small stuff. Focus on the goals, needs and interests that are important to you. It doesn’t matter what your spouse is gaining or claiming to gain or wants to argue about. Leave the small stuff alone and stay true to your essential goals. You will be truly successful if you can achieve your important goals and needs.
  6. Practice ‘putting yourself in your spouse’s shoes’. Empathy can really help you in a number of ways. Since 90-95% of divorces settle, negotiations are a major part of any divorce. You can better understand and respond to your spouse’s requests and offers if you understand what important to him or her and what factors will motivate them. Being able to figure out what your spouse is motivated by can help you create settlement options that will be acceptable and even welcome to your spouse.
  7. Reduce conflict. The more you fight, the more it costs. That should be obvious. You can choose to start or continue battles, or you can decide to work for solutions.

Following these tips will improve your chance of success, no matter how you define success. At the least, you should have a divorce with less fighting and more attention to the important issues. Source:’ ‘7 Tips For a Better Divorce‘ by Dick Price, published at his Divorce and Family Law in Tarrant County blog.

Source for Post: South Carolina Family Law Blog.

Source: Kansas Family & Divorce Lawyer

Posted in Divorce | No Comments »