Simple, Yet Unclear: What to Expect Following the Alimony Deduction Repeal

By Alissa Castro If you have been contemplating or are in the process of getting a divorce, you may be wondering how changes to the tax code under the Tax Cuts and Jobs Act (“TCJA”) will affect you. The key tax code change in question is the repeal of the alimony deduction that has been in place since 1942. The simple facts There are a few things that we know for sure, based on what is written in the Tax Cuts and Jobs Act: If you get divorced after December 31, 2018, and you pay alimony – or spousal maintenance as it’s known in Texas – that alimony will no longer be tax deductible for the payor. In addition, the recipient won’t have to pay taxes on alimony, as it is no longer considered income. Beyond those basic facts, there has been much speculation regarding how the repeal will affect people who file for divorce and try to negotiate divorce settlements. Experts in divorce, tax law, and financial planning have also raised concerns about the financial impact the change will have on both the payor and payee. Based on our experience as divorce attorneys and what other experts are speculating, the following is what we expect may occur due to the elimination of the alimony deduction. More couples are likely seeing the courtroom Many experts speculate that the elimination of the alimony deduction will result in fewer couples negotiating divorce settlements outside of court. The alimony deduction has been very attractive for some monied spouses, because it reduced the amount of income they had to pay taxes on, often resulting in significant savings for the payor. With the deduction repealed, monied spouses will have less incentive to agree to provide support to help a spouse get back on her (or his) feet after divorce. The fact that the law is effective after December 31, 2018, could help settlement negotiations this year. Thereafter, it will become more difficult to settle in certain cases, which means divorce lawyers will likely be going to court with clients more often. The alimony repeal could also affect divorce modifications Many couples decide or are forced to modify their initial agreements after the divorce has been finalized. The courts traditionally consider these divorce modifications new agreements, which could be an issue for couples that included alimony in a past agreement that is subject to modification, especially those who don’t want to lose the deduction or the alimony. This could force some couples to decide against a modification, leaving them stuck with other arrangements that no longer suit their or their family’s needs. Because this change applies to modifications after December 31, 2018, if the modification specifically states that the TCJA treatment of alimony payments applies, it is very important to meet with an attorney to ensure that the correct language is included in any subsequent modification. Couples that get divorced before the end of 2018 should consider including language in their divorce agreements to ensure alimony is grandfathered in, should a future divorce modification be necessary. Learn more about child custody modifications in Texas here. Women and local governments could be hit hardest Not receiving a supplemental financial settlement could be especially devastating for women in states like Texas (98 percent of alimony recipients are women), where the monied spouse is required to pay minimal or no spousal support in most cases. In Texas, $5,000/month (or 20 percent of the spouse’s average monthly gross income, whichever is less) is the maximum amount of spousal maintenance a spouse could be ordered to pay. In addition, people...

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Parting Ways? Get in Gear with Our 10-Step Divorce Checklist

If you have decided to file for divorce or your spouse has already filed, taking time to organize your thoughts and plan next steps is essential. As with any big challenge, a checklist can set the wheels in motion and keep you on track. To help prepare, the Connatser Family Law team has created a handy divorce checklist to guide you. 10-Step Divorce Checklist Step 1: Organize financial records and pull credit reports. It’s important to analyze what assets and debts are at stake during a divorce. Key financial records to track down include: Bank accounts. 401ks, IRAs (individual retirement accounts), pensions and other retirement accounts. Investment accounts. Trust accounts. Stock portfolios. Wills Safe deposit boxes. Insurance policies (auto, home, health, life, etc.). W2s and other tax documents. Logins and passwords for financial accounts. It can also be helpful for both spouses to pull their credit reports to make sure all outstanding debts (credit cards, medical bills, auto loans, etc.) are taken into account. Step 2: Hire a divorce attorney. This step may sound obvious, but it’s one that shouldn’t be taken lightly. Your divorce lawyer is the key person who will help formulate a divorce strategy to align with your goals. Interviewing multiple attorneys prior to hiring one can help ensure attorney and client are on the same page. Check out Aubrey’s recent post, Wealthy and Getting Divorced? 6 Essential Tips for Hiring a Divorce Attorney, for additional insight. Step 3: Set the tone early on. If your goal is to have an amicable divorce, then you should communicate that intention from the get-go. When possible, it’s typically best to personally ask your spouse for a divorce as opposed to serving him or her with papers first. During the conversation, explain that you want to settle the divorce amicably, avoid high legal fees and treat each other fairly. Hearing these sentiments can help put your spouse’s mind at ease and get the process off to an amicable start. If you fear for your and/or your children’s safety, take precautions. Abby provides advice in this recent post: How to Leave an Abusive Relationship and Protect Your Kids. Step 4: Decide how and when to tell the children. Do so with the other parent if possible. Divorce can be especially hard on children. In fact, some kids even believe they are at fault for their parents’ divorce. Psychotherapist Linda Solomon, LPC, LCDC, LMFT shares invaluable advice here: Break the News with Care: How to Tell Kids You’re Getting Divorced. Step 5: Sort out living arrangements and budgetary details. Obviously, you need to figure out where each spouse (and children if you have them) will live. Who stays in the family home and for how long? Will you take turns or will someone move to an apartment or live with their parents? It typically proves beneficial to establish a budget, including living expenses and any other financial obligations, during the early stages of a divorce. Christine explains how living arrangements and other issues related to divorce are handled in her post: Calling It Quits? The Top 12 Things You Need to Know About Divorce in Texas. Step 6: Change passwords and create a new email account. While you can’t delete email, text, phone or social media accounts – such spoliation of evidence is illegal – you can change passwords on accounts that belong exclusively to you. This step is critical because it can deter your spouse from accessing those accounts and your private information – especially correspondence related to the divorce with your lawyer or other trusted professionals. Step 7: Untangle...

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8 Key Considerations for Wealthy Couples During a Gray Divorce

By Douglas A. Harrison With four decades of experience practicing family law in Texas, Connatser Family Law attorney Doug Harrison has helped hundreds of affluent clients navigate the complexities of divorce involving sizeable estates, family business concerns, trusts, retirement accounts, insurance and more. We asked Doug to shed some light on the unique challenges older, wealthy couples face during a gray divorce. According to data analyzed by Pew Research, since 1990, the divorce rate has roughly doubled for adults ages 50 and above and tripled for those ages 65 and older. Clearly, gray divorce is on the rise, but why is this happening? Two big contributing factors are that the baby boomer population is getting older, and they are living longer. Boomers are retiring in droves and their kids have left the nest, which means boomer couples are suddenly spending a lot more time alone together. Consequently, some couples realize all of that togetherness isn’t as great as they hoped. The disdain for extended one-on-one time – by either party or both – is exacerbated when one of the partners transitions from eight to ten hours a day in the office to 24/7 at home. Following retirement, some couples also realize they have very different interests. Perhaps the wife is a real go-getter who loves to socialize and participate in cultural and civic endeavors, while the husband prefers to stay home and tinker around the house or play golf. In addition, many gray divorces we see today are second or third marriages, which have a significantly higher failure rate. While gray divorce can be complicated regardless of how much wealth is involved – learn about gray divorce and social security benefits here – affluent couples often face unique challenges, especially when divorcing later in life. No. 1: Tax issues. Most successful people in business try to take maximum advantage of the tax code. Consequently, couples getting divorced, when significant money, business concerns, and a long-term marriage are involved, have probably dealt with some tax issues along the way. It also isn’t unusual for a couple to think everything is fine from a tax perspective, and then receive a notification from the IRS that they are being audited for a return from a few years back. As a result, the parties may find out there are significant taxes owed that need to be dealt with during the divorce and beyond. Caution is encouraged with respect to these types of issues. No. 2: Estate plan changes. Many affluent couples establish elaborate estate plans, trust agreements, and family limited partnerships to ensure family members are provided for over the long term and taxes are minimized. When a couple contemplates a gray divorce, confusion and disagreements can arise pertaining to how these components will serve family members post-divorce. For example, when the couple created their estate plan, their goals were likely based on providing for the parties as a couple – not as individuals. Concurrently, wealthy couples often set up and contribute assets to family limited partnerships, under which both spouses, and possibly their children, own a percentage interest in that partnership. This ownership structure can result in a lower valuation of an individual’s interest in the partnership for estate tax purposes because of lack of control of the entity. This same issue would likely arise in a valuation for divorce purposes as well. Should the couple decide to divorce, the parties often have different interests and goals. Essentially, they are now paddling the boat in different directions, as self-preservation kicks in! How the family limited partnership is valued and dispersed requires careful...

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Want to Keep Costs in Check During a Divorce? Avoid These 8 Mistakes

By Aubrey Connatser Getting divorced can be a costly undertaking, especially if your case ends up going to trial. Unfortunately, some people end up spending more in attorney’s fees than necessary. The good news? If you are planning to divorce, you can rein in costs simply by avoiding the following mistakes. Mistake No. 1: Picking the wrong divorce lawyer It’s extremely important to have a good rapport with the person who will be navigating the divorce process with you. Parties who don’t see eye to eye with their divorce attorneys, typically end up with less consistency in strategy and more time spent in meetings. For example, say you are someone who hopes to settle your divorce as amicably as possible. If you hire an attorney who prefers to handle contentious divorces, you will spend a lot of time and money trying to reach a consensus regarding what to do and why. Not sure how to find the right attorney for your circumstances? Aubrey provides six essential tips for hiring a divorce attorney here. Remember, divorce lawyers bill by the hour. When you have confidence in your lawyer, you probably won’t question him or her as much (not that you shouldn’t question your attorney). In addition, you will probably be more inclined to trust his or her judgment and spend less time agreeing on a strategy. Mistake No. 2: Using your divorce attorney as a therapist Initially, it can be a good thing to explain to your lawyer what led up to your divorce emotionally, because that helps inform him or her as to where you are from a mental health perspective. However, extensively relying on an attorney for emotional support can get expensive. Therapists tend to charge much less than lawyers – depending on who you hire. Mistake No. 3: Not understanding your divorce lawyer’s fee contract Different lawyers charge different fees, so be sure to review how time is billed before signing a contract. Inquire about the lawyer’s hourly rate and how you will be billed for time other people in the firm spend working on your case, such as paralegals and law clerks. You should also ask what sort of retainer is required. Technically, retainers are refundable, so find out what the law firm’s policy is regarding timing of refunds. In addition, find out how the firm bills incremental time entries – by the tenth of an hour, quarter of an hour, etc. Being prepared can help smooth the divorce process. Check out the 18 helpful tools in our divorce toolkit here. Mistake No. 4: Communicating inefficiently with your attorney If you want to keep costs in check, communicate efficiently with your divorce attorney. For example, instead of sending 10 emails throughout the day, send one email with 10 questions at the end of the day. Every time you contact your lawyer, you will be billed for that time – so refrain from hitting “send” whenever possible. You may even consider scheduling a weekly meeting with the attorney and set aside any questions that need to be addressed for that time. That doesn’t mean you can’t communicate more frequently when necessary, but in the long run, weekly meetings can increase efficiency and reduce billable hours significantly. Mistake No. 5: Not reviewing paperwork for accuracy Carefully review any pleadings to ensure everything is accurate from a fact standpoint before they are filed on your behalf. This step can help reduce hourly fees related to correcting mistakes and inaccuracies later. Mistake No. 6: Keeping things from your attorney You should never lie to your doctor, and you should never...

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As Gray Divorces Increase, Social Security Benefits Become More Important

Aubrey Connatser and Guy Rodgers, Texas Lawyer Dramatic increases in the number of older people getting divorced these days have brought to light social security rules that provide additional benefits to divorced people who qualify. These “gray” or Baby Boomer divorces are more common than ever before. A study from the National Center for Family and Marriage found that the U.S. divorce rate for couples age 50 and older doubled between 1990 and 2010, and was even higher for those over 65. The main concern of most people who divorce late in life is whether they will have enough money to live comfortably the rest of their lives. Divorce can drain the coffers of people in their 60s and 70s who may not have a way to rebuild their finances afterward. These older people need a pathway to security, and social security can be an important part of finding that pathway. Social security benefits are based on how long a person has worked, how much money is earned and when the person starts taking benefits. Social security retirement benefits can start at age 62. Full retirement age of people born between 1943 and 1954 is 66 years of age, while benefits max out at age 70. People who may not have worked for wages (such as housewives), worked for low wages or in jobs where social security taxes were not taken out through payroll deduction, may not qualify to receive much of a benefit. Eligibility for certain benefits can also depend on marital status. For divorced, divorcing and married people alike, the key is knowing the most advanced strategies and aggressively pursuing benefits. Claimants must file to determine their benefits, even if they question their eligibility. The Social Security Administration will not come after people waving money. Those who might not otherwise qualify for benefits may be eligible for divorced spousal benefits. A divorced spouse can collect social security retirement benefits based on the work record of an ex- husband or wife under strict conditions. For purposes of this explanation, the spouse filing on the benefits of an ex will be called the filing spouse. The spouse who earned the benefits being filed on will be called the earning spouse. The rules for collecting divorced spousal benefits are as follows: Both the filing spouse and the earning spouse must be at least 62 years of age. The couple must have been married for at least 10 years and divorced for two years. The filing spouse must be unmarried at the time of filing. The marital status of the earning spouse is not a factor. The filing spouse cannot be eligible for a higher benefit based on his or her own work record. For the filing spouse to collect, the earning spouse must be entitled to receive benefits but doesn’t have to be receiving them at the time of filing. No one has to ask an ex’s permission to file and there doesn’t have to be any contact between the exes during this process. Even if the earning spouse is remarried, this filing won’t affect the right to divorcee benefits, nor will it affect his or her retirement benefits or that of a current spouse. Only if the filing spouse remarries will he or she become ineligible for these benefits. Syndicated columnist Tom Margenau recently told the story of a divorced couple, both age 66, who filed on each other’s benefits. For four years, each of them received 50 percent of their ex’s full social security benefit, and it was perfectly legal. This kept their own benefits intact until age...

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Top 5 Things Most Likely to Show Up in Rupert Murdoch and Jerry Hall’s Prenup

On January 11, 2016, 84-year-old media mogul Rupert Murdoch and former supermodel Jerry Hall announced their engagement. This will mark the fourth marriage for Murdoch and the first for Hall (she and former, long-time love Mick Jagger were never legally married). You know what that means … It’s time to draft a prenup! With an estimated net worth north of $11 billion (according to Forbes),* and as the father of six children, Murdoch isn’t likely to walk down the aisle until the ink dries on a carefully crafted premarital agreement with Hall. Along with providing for his heirs, the billionaire also has a massive empire to protect – so you can bet his lawyers are hard at work. While Hall isn’t destitute (The Washington Post recently estimated her net worth near $15 million), her bank account pales in comparison to Murdoch’s. For people with considerable assets like Murdoch, signing a prenup with a future spouse is a no-brainer. According to Dallas Divorce Attorney Christine Powers Leatherberry, “Many people like Murdoch and Hall marry later in life and/or for a second or third time in today’s society. This also means they have had time to accumulate more wealth. A premarital agreement can help wealthy individuals protect their assets, provide for children from an earlier marriage and potentially avoid litigation should the couple divorce.” So what DO wealthy individuals typically request when drafting their prenups? We asked Christine to share the top five things her affluent clients require and/or she recommends. No. 1: Opt for an “all property remains separate” premarital agreement. “We refer to this as a ‘roommate’ type of premarital agreement, or ‘what’s mine is mine, and what’s yours is yours.’ A wealthy individual like Murdoch will usually want to ensure NO community property is created during the marriage. He’ll likely agree to cover monthly living expenses and give Hall an allowance and other concessions but require she give up any community property rights,” says Christine. No. 2: Signing bonus. In order to entice the less-monied party to sign a premarital agreement, the affluent party may include financial enticements to seal the deal. As Christine explains, “Many of our wealthy clients offer a set dollar amount to be paid to the less-monied party upon the signing of the agreement – or a ‘signing bonus’ – to ease any reluctance to sign the prenup.” No. 3: Other financial incentives and restrictions. A signing bonus may help close the deal, but spelling out how much money the non-monied spouse will have at his or her disposal following the wedding is also important to Christine’s affluent clients. “It’s helpful for both parties to agree on specific budgets as well as what potential payouts will be offered in the event of a divorce. The more clearly these items are spelled out in a premarital agreement, the less likely the couple will face friction over money later on,” says Christine. Some common line items include: During the marriage: Monthly spending budget for miscellaneous expenses. Shopping budget. Car allowance. In the event of divorce and/or death: Alimony or ‘exit bonus’ – based on duration of marriage – should the couple divorce (may include cash, a home and/or other assets). Provisions for treatment of any retirement plans or employee benefits. Homestead rights – who will live in the couple’s home (or homes) after death, if the residence was separate property. No. 4: Requirements pertaining to wills, trusts and life insurance. In Murdoch’s case, where the future of the family business and six heirs’ livelihoods are at stake, plans undoubtedly have already been made regarding how the...

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