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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. 

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.

 

Dependency Exemption Non-Custodial Parents

The Internal Revenue Service released a memorandum in 2009, clarifying the rules governing non-custodial parent’s ability to claim a dependency exemption for their child.

Previously, the Service allowed a non-custodial parent to claim an exemption for a child if the custodial parent signed a written declaration releasing claim to the exemption and the non-custodial parent attached that declaration to their return. IRS Form 8332 is available to document this release.  In Publication 501, Exemptions, Standard Deduction, and Filing Information, the Service has stated that a non-custodial parent may attach certain pages of a divorce decree or separation agreement, instead of Form 8332, if the attached pages include the information required on the form. Click here for more information from the IRS.

The Problem

A problem arose in the ambiguous language of the actual code.  It stated the release of a claim must be on Form 8332 or, if not on such form, must “conform to the substance of such form.” The ambiguity begat creativity and family law attorneys began drafting the declarations into settlement agreements. Taxpayers would then simply need to attach a copy of their divorce decree. This eliminated the need for Form 8332 and therefore, the need to speak to your ex-spouse every year requesting a signature.

The recent memorandum was directed specifically at the question whether it was allowable for a non-custodial parent to prove their right to the exemption by submitting proof of satisfaction of a condition in a divorce decree. The condition was that the non-custodial parent may only claim the exemption if current in his or her support obligation. This raises the problem of substantiation.

In the 2009 memo, the Service concluded the release must be on Form 8332 or must be a document conforming to the substance of Form 8332 and has as its only purpose the release of a claim to exemption. A divorce decree, separation agreement or parenting plan allowing a non-custodial parent to claim an exemption for a child, only if a condition is met, does not conform to the substance of Form 8332.  For tax years beginning after July 2, 2008, a settlement agreement, decree or judgment may not be used by a non-custodial parent to substantiate a dependency exemption for a child.

These regulations reflect the Service’s concern about substantiating a claim to a dependency exemption for a child and are intended to avoid problems of proof, minimize controversy, and minimize costs to parents.  The change does not preclude a non-custodial parent from claiming the exemption; it simply requires more care be made to make sure this is accomplished.

It may be helpful to include language stipulating the custodial parent will execute Form 8332 on a yearly basis. This follow up challenge can be alleviated by insuring the newly single parents consult a financial advisor with specific experience in the field of divorce financial planning. Two parents claiming an exemption for the same child will end in IRS audits for both and possibly bring a settled case back into the courtroom.

Protect your Assets: Prenuptial Agreements 101

prenuptial

What is a prenuptial agreement?

A prenuptial or premarital agreement is a negotiated agreement reached between two parties in advance of marriage. The agreement typically deals with the ownership of assets in the event the marriage ends in divorce. Some prenuptial agreements will also cover alimony and child support. There is a great overview from a legal perspective here.

Do I really need a premarital agreement?

About half of marriages end in divorce in the United States so it may be prudent to consider signing one. Following are some considerations to help guide your decision making.

Timing is everything

Many newly engaged couples believe the entire concept of prenuptial agreements is unromantic or even disgusting because the party proposing the agreement may be planning for the marriage to fail. If you plan on asking for a prenuptial agreement in your future marriage we suggest you start the conversation early so expectations are not shattered weeks in advance of the big day.

Many jurisdictions even require a party be given a certain amount of time to review and negotiate the terms of a prenuptial before the marriage date. If the adequate time is not provided the agreement can be rendered unenforceable. In California the party receiving the prenuptial agreement must be given at least seven days to review the agreement before it is signed. If someone is not given the seven days, a court may consider it to be signed under duress and refuse to enforce it’s provisions.

Protect yourself.

Prenuptial agreements should be negotiated with the assistance of licensed and independent legal counsel. Independent is a key word. We have seen many prenuptial agreements drafted for couples by one attorney. Usually the drafting attorney is working for the person with the money. So how could the other party hope to get fair and complete representation from this lawyer if they are already working for their soon to be spouse? Unfortunately they usually do not.

In the State of California the party receiving the prenuptial agreement must be represented by independent legal counsel at the time of signing the agreement or waive their right to do so in writing. If independent counsel is not present the agreement may be rendered unenforceable.

This facet works to the advantage of both parties. For the party receiving the prenuptial agreement they will have access to competent and experienced legal counsel to ensure they understand what they are signing. For the person offering the prenuptial it provides additional assurance the agreement will stand up in court if the day should come. Bottom line don’t use your fiance’s attorney.

Protect your future.

Prenuptial agreements are all about money. One or both parties have it or the expectation of having it and want the money protected in the event of divorce. They are not only for celebrities or the super rich. Say you started a business before you were married and the business is just starting to gain traction. If the business grows to a value of millions of dollars during your marriage, the value may be considered part of your marital estate and you will have to pay your spouse to keep it in a divorce.

You may wish to have the business carved out as your separate property through the use of a prenuptial agreement. If the business does not take off as expected you would still have the peace of mind to know it is yours. If it does take off, you and your new spouse probably enjoyed the fruits of this success during your marriage through the income it was able to pay you.

Be prepared.

Prenuptial agreements require diligence and full disclosure. One of the many problems we see with prenuptial agreements is a complete lack or poor effort at disclosure of financial information. A good prenuptial agreement will include exhibits attached showing the assets, debts, income and expenses of both parties. You may not be able to prove assets not disclosed in the financials of the prenuptial agreement are governed by the provisions.

Take for example a brokerage account. You sign a prenuptial agreement saying all assets owned at the time of marriage are considered the separate property of the owner. What if the brokerage account was with Lehman Brothers who subsequently goes bankrupt and their records are no longer available. Your account balance will not have disappeared with the bankruptcy but your ability to prove it existed at the time of your marriage may have. If you cannot prove it existed at the time of marriage you may not get it awarded as your separate property in divorce. Start with full disclosure, be diligent about keeping records and consider updating or amending your prenuptial agreement as circumstances change and assets move around.

 

Stay tuned for more on the topic as we dive into Best Practices, explain Common Provisions, uncover Postnuptial and cohabitation agreements, share some horror stories of Prenuptial Failures and maybe even convince you Prenups are Romantic.

Hidden Assets in Divorce Panama Papers

Clients of Wellspring Divorce Advisors regularly express concerns about hidden assets in divorce proceedings. Often trust has been lost thanks to an affair and it is easy to take the next step and believe one lie makes it likely there are others. In most cases a Certified Divorce Financial Analyst at Wellspring can either confirm or deny these client fears through forensic review of financial records but the realizations found in the Panama Papers have proven it may be possible to hide assets. At least for a while.

The Panama Papers, published the International Consortium of Investigative Journalists or ICIJ, reveal

  • Offshore companies used ‘in a game of hide and concealment’ after marriages break down
  • Documents list luxury cars and yachts, lavish homes, and art collections
  • Spouses face a costly battle to prove ownership of offshore assets in protracted divorce proceedings

The ICIJ published a story “How the One Percenters Divorce:Offshore Intrigue Plays Hide and Seek with Millions” in early April of 2016. Most of the names revealed in the papers are international but the South American location of the law form involved does not render American citizens immune to the frauds perpetrated.

Concerns for hidden assets in divorce are common and widespread. If you share these concerns you must ask yourself; How much is the peace of mind worth? The peace of mind to know your spouse did not defraud you in the divorce proceedings. The peace of mind to know you got what you were owed in the financial settlement. There are ways to uncover hidden assets in divorce if you have the time and money to pursue it. We suggest you work with your Wellspring Divorce advisor and your attorney to look at the cost versus benefit of doing so and make your decision on how to proceed with the professional advice in mind.