The Deposition: How to keep surprises to a minimum during your divorce.

deposition

What is a deposition?

In a deposition, one party or that party’s lawyer conducts face-to-face questioning of the other party or a witness to the dispute.

The person being questioned (the “deponent”) must answer under oath, and the answers are recorded by a court reporter or possibly on video for later use at trial. If the deponent cannot testify at trial, the questions and answers might be read as evidence. If the deponent does testify and gives different answers at trial from those he gave during the deposition, the questions and answers can be used to show the jury that the witness changed his story bringing his credibility into question.

When a witness loses credibility it will tarnish the believably of his entire testimony.

When should a deposition be used?

Depositions can be under utilized in divorces…but possibly for good reasons. In situations where parties are amicable and have equal access to financial information, depositions are a waste of time and money. They should be used only in cases where the opposing party or their financial expert has information you want and need and are not freely providing it.

Some jurisdictions refer to a deposition simply as “testimony before trial” which is a much more descriptive term.

Why is a deposition important?

A deposition is a great tool to find out, in advance of hearing or trial, what a witness is likely to say in the future. You can find out:

  • What a financial expert testifying for the opposing party will testify to at the hearing.
  • How they rendered their opinions.
  • If they have any financial documentation not yet in your files.

All of these realizations can and should assist your attorney and financial expert in preparing your case before it is argued in front of a judge.

How can Wellspring Divorce Advisors help with this process?

Your Wellspring Divorce Advisor can even attend the deposition of your former spouse or their financial expert and assist your attorney in questioning the witness. Depositions can be a powerful means of gathering financial information when one party is at a disadvantage.

You Need a Game Plan: 10 strategies to help you during your divorce.

strategies

Throughout our experience as Certified Divorce Financial Analysts we have developed a passion for strategic thinking during financial negotiations of divorce. Every case presents different challenges, opportunities and client goals. No two negotiations are the same but we find some financial strategies during divorce important to consider in every case.

Here are 10 strategies to help you during your divorce.

1. IRS rule 72(t)

This allows hardship withdrawals without the 10% penalty from 401(k) plans during divorce. Consider this strategy to help with cash flow problems during dissolution proceedings.

2. The Government Pension Offset and Windfall Elimination Provision

These are federal Social Security rules that often unexpectedly reduce Social Security retirement benefits in divorce situations and may cause inequity.

3. Consider that an apples to apples comparison may not be possible…

…for before tax and after tax dollars from an individual brokerage account versus an IRA. Agreeing to an equal offset of accounts with different tax ramifications may result in inequity.

4. Know the value

Comparing the present value of a currently available liquid asset such as a savings account versus the future value of a non liquid asset such as a pension may result in inequity.

5. Child contingency and Alimony recapture laws

These are hard to analyze and often missed in setting support awards but can cause unexpected tax ramifications of great magnitude if left without review.

6. Capital gains

Unrealized capital gains that may cause future taxes should be included in estimates of value when considering asset division. Agreeing to a division where each party receives an asset of equal value but one has a large capital gain built in will result in inequity.

7. Know what has cash value now

Dependency exemptions and tax filing status may have real cash value now and in the future and can be used as bargaining chips for financial settlements.

8. What about the life insurance?

Life insurance placed as security for support payments should be positioned before a final settlement is reached to ensure a policy will be available with an efficient cost structure.

9. Retirement plans

Qualified Domestic Relations Orders necessary to divide retirement plans should be drafted and approved by the plan administrator prior to the divorce being final to avoid delays common post divorce.

10. Don’t forget the real estate

Consider the advantages of deferring capital gains taxes on real estate assets by using a 1031 exchange or converting a rental property to a primary residence for tax purposes.

 

As your partner and with a little guidance from attorneys, we will help you reach an equitable solution. Call Wellspring Divorce Advisors today to begin the journey towards your future.

Alimony Recapture

alimony

What is Alimony Recapture?

Alimony Recapture is an effort by the IRS to block the disguise of a property settlement in divorce as tax deductible alimony.

Internal Revenue Code requires recapture of deductions taken for alimony payments into the income of the payer spouse if alimony decreases too fast in the first three calendar years of permanent support. The amount to be recaptured is determined by recomputation of the payer’s tax deductible payments.

  • Recomputation occurs once in the third post separation year.
  • The recaptured amount is includable in the income of the payer spouse in the third post separation year and the same amount is an above the line deduction to the recipient spouse in the same year.
  • The amount that must be recaptured in the third post-separation year is the sum of the excess payments made in the first post-separation year plus the excess payments made in the second post-separation year.

Exceptions

Alimony Recapture DOES NOT APPLY where:

  1. The payments fluctuate outside of the payer’s control because of a continuing liability to pay a fixed percentage of income from the earnings of a business or property or from compensation from employment or self-employment.
  2. The alimony payments terminate due to death of either party or remarriage of the recipient before the end of the third post-separation year
  3.  Payments are pursuant to a temporary order.

If alimony or separate maintenance payments decline or cease during a post-separation year for any reason other than one contemplated by these exceptions (including a failure by the payer to make timely payments, a modification of the divorce or separation instrument, a reduction in the support needs of the payee, or a reduction in the ability of the payer to provide support), excess amounts will be subject to recapture.

AS A GENERAL RULE OF THUMB, FRONT-LOADING CAN BE AVOIDED IF, WITHIN THE FIRST THREE CALENDAR YEARS AFTER THE DIVORCE, THERE IS NO MORE THAN A $15,000 VARIATION IN ALIMONY FROM YEAR TO YEAR.            

Sound complicated? It is. Get an expert to help you avoid costly errors and don’t assume your attorney is looking out for this kind of financial blunder. 

Family Support Risks and Rewards

family support

What is Family Support?

Family Support is the common term for what courts refer to as “unallocated alimony and child support” and a tool for maximizing the after tax cash flow for both households after divorce.

In cases where the divorcing parties have minor children and disparities in their incomes it is likely a judge will order alimony and child support as two separate payments in two separate amounts with different duration.

  • Alimony (spousal support) is intended to provide for continuation of the lower earning party’s standard of living and training if necessary to reenter the work force. Alimony can last for a number of years or a lifetime depending on the circumstances and the jurisdiction where the divorce is being completed. Alimony is taxable to the recipient and tax deductible for the payer.
  • Child support is intended to provide for basic needs of minor children from the marriage and ensure they have a similar standard of living in both new households. Child Support usually ends when the minor child turns 18 years old or graduates from high school, whichever comes last. Child support carries no tax liability for the recipient and is not deductible to the payer.

In some cases it makes sense financially to play with the allocation between these two payment amounts in order to provide the best bang for the buck and maximum cash flow to the newly formed separate households. Family Support can be a powerful tool for maximizing the after cash flow for both households but it comes with complications.

First an example using a single income household then we will talk about the risks and rewards:

Meet Sue and Dave

 

Facts

  • live in California
  • have been married for 17 years,
  • have two minor children aged 10 and 13
  • Dave makes $360,000 per year
  • Sue has been a full time mother and homemaker since the birth of their oldest child and has no earned income
  • Child sharing agreements have been reached with Sue remaining the main caregiver with 60% and Dave with 40% time share

Traditional Results

  • Child support is determined to be $3,983 per month
  • Spousal Support (alimony) is determined to be $5,845 per month
  • Sue’s Net (after tax) Disposable Income = $9,375
  • Dave’s Net (after tax) Disposable Income = $10,743
  • Total Net (after tax) Disposable Income = $20,118

Family Support Results

  • Child Support is set at $0 per month
  • Family Support is determined to be $12,527 per month
  • Sue’s Net (after tax) Disposable Income = $9,600 (+$225 per month)
  • Dave’s Net (after tax) Disposable Income = $11,000 (+$257 per month)
  • Total Net (after tax) Disposable Income = $20,600 (+$482 per month)

Rewards

  • If used appropriately Family Support allows the parties to achieve a higher net transfer of cash flow from the payer to the recipient by moving the income from the payer’s high income tax bracket to the recipient’s lower bracket.
  • The payer, Dave, simply has a larger tax deductible payment which increases his after tax funds available to pay support. Sue pays taxes on the family support in her bracket at a lower rate. The net benefit to the family cash flow is $482 per month, $5,784 per year or $57,840 over ten years.
  • The benefit of the cash flow increase is shared almost equally between the parties. $225 per month to Sue and $257 per month to Dave.

Risks and Complications

  • Family Support is typically a temporary agreement used to help maximize cash flow during the months or years divorce negotiations are pending and can help facilitate economic transition into two separate households. Opinions are mixed on how the IRS or state taxing authorities would look at longer term payments characterized this way and if they may try to “recapture” a portion of the tax deduction taken by the payer.
  • Click here for information from the State of California taxing authority which does recognize Family Support as fully tax deductible.
  • At least one federal court has invalidated a family support order in terms of deductibility to the payer (Wells v. Commissioner)
    • In order for family support to be deductible at the federal level it cannot be disguised child support so cessation of payments should not be contingent on child related events such as attaining the age of 18. Notice the example of Dave and Sue uses a ten year duration for payments for that exact reason.
    • The payments must also terminate upon the death of the recipient. This is a requirement for any alimony payment to be deductible.
    • With careful drafting by an experienced attorney we think Family Support can pass muster for long-term deductibility.
  • Both parties must fully understand the tax consequences before agreeing to Family Support. Sue will now have to make large estimated tax payments or face penalties and interest on unpaid taxes.
  • Courts do not typically order Family Support because the law requires them to maintain jurisdiction over child support as a matter of public policy.
  • Even if Sue and Dave chose to write Family Support into their agreement, either party could walk into court a week later, ask the judge for child support and expect to be granted the guideline amount effectively terminating their original agreement and potentially triggering tax trouble.

Help is out there.

Be sure to consult your Wellspring Divorce, tax and legal advisers about the risks of Family Support and applicability to your personal situation and stay out of the court system because a judge will never order Family Support for longer periods. Amounts and duration used in the hypothetical are not meant as advice or opinion for what you should expect in similar circumstances.

Spousal Support IS Modifiable

spousal support

Can Spousal Support be Changed?

YES! The amount and duration of Spousal Support may be modifiable. You can go to court and ask the judge to increase, decrease, or stop spousal support any time during the period when court has jurisdiction unless you agree otherwise in your settlement.

In most states the court will retain jurisdiction over spousal support for different periods of time based on factors in the case. The main factors include:

  • Length of marriage
  • Age of the parties
  • Each party’s ability to support themselves by earning a living and or living off of the assets they own after the divorce.

Here’s an example.

A couple in their mid 50’s who has been married for 25 years with one party having been a full time parent would likely see the court retain jurisdiction over modification of spousal support forever in California. The length of marriage and ages of the parties would likely classify the example as a long-term marriage.

The working and paying spouse would be allowed to retire at normal retirement age, 65 or 67 depending on who you ask, at which point the amount of support could be modified to reflect the decreased income of the payer. If the payer continues to work past their normal retirement age they may be required to continue paying support at the same level. This has become more common as many baby boomers work past normal retirement age. Laws vary from state to state so be sure to consult experts in your home state.

During the court’s jurisdiction either party may petition the court for a modification based on a change of circumstances. A change of circumstances may include:

  • job loss by no fault of the worker
  • disability
  • decrease in earnings of a small business owner due to economic circumstances
  • retirement at an appropriate retirement age
  • many other factors.

What other life changes apply?

It can also go the other direction where a payer has a large increase in income, a one time financial windfall through bonus or stock compensation. In this case the payee could seek to modify the support amount upwards. We often work with the payee spouse to determine whether they should seek an upwards modification of support. In order to do so we may ask for the payer to provide annual income disclosures so we can be aware of any factors suggesting an upwards modification may be appropriate.

In some cases it makes sense for the parties to agree to a non-modifiable spousal support order. This so called non-modifiable spousal support can stipulate duration of the payment and or dollar amount or both. Non-modifiable spousal support comes with risks and rewards for both the payer and the recipient but can make sense for both parties in the right circumstances.

Some cases build modifications into the original agreement corresponding with the recipient reentering the work force or some change in financial circumstances in the future. These are often called step down orders.