Family Law Blog
Commentary and updates on Family Law
The Tax Cuts and Jobs Act includes a substantial change to the allowable amount of mortgage interest which is tax deductible. For those who are contemplating purchasing expensive homes and taking out a mortgage with a principal balance of more than $750,000, the interest on the amount over $750,000 will not be tax deductible. For mortgages issued prior to December 15, 2017, the mortgage interest is deductible for principal mortgage amounts of up to $1,000,000. However, after December 15, 2017, that amount is reduced to principal amounts of up to $750,000. This only applies to properties purchased after December 15, 2017. Absent any extension of this law, the amount reverts to $1,000,000 in 2026.
Another big change relates to home equity lines of credit on your residence. In the past, the mortgage and home equity line of credit could be lumped together, and the interest on both deducted up to the maximum allowed loan amount. That is no longer the case. It does not matter if the home equity line of credit was taken out before or after the change in tax law. In general, the interest on home equity lines of credit is no longer deductible. There are some limited exceptions to this where the funds are used to substantially improve the residence, but even this exception requires very specific requirements to be met. This tax change could have a large impact on those who intentionally took out a home equity line of credit rather than refinance their mortgage to a larger amount. Without this deduction, taxable income will be higher.
As everyone has heard by now, the 2017 Tax Cuts and Jobs Act was signed on December 22, 2017, and is now law. While the name may be confusing, what it means for taxpayers is that many tax laws are changing. Attorneys and accountants are still figuring out what the impact of the Act will be, and more direction will be provided by the IRS in the coming months and years. This is the first in a series of blogs designed to demystify the new tax laws that may impact those who are divorced or currently in the process of getting divorced.
Alimony has long been tax deductible to the payor (person paying alimony) and added to taxable income to the recipient (the person receiving alimony), as long as specific requirements set forth by the IRS are followed. The result has been an income shift from the party that pays a higher tax rate to the party that pays a lower tax rate. In the end, both parties under this scenario end up with more money than if alimony were not taxable or deductible. This treatment has applied to spousal support, alimony pendente lite and alimony.
With the passage of the Tax Cuts and Jobs Act, such treatment of alimony will change, but not right away. As of now, the change is only for tax years 2019 through 2025, and specifically will only apply to agreements signed after December 31, 2018. It remains to be seen what will happen after 2025, or possibly before if there are additional changes to the tax code. There is an exception made, however, for those who have already entered into an agreement on or before December 31, 2018. The law changes for all agreements entered after December 31, 2018, so that the alimony will no longer be deductible for the payor, or count as income to the recipient. It remains to be seen if there are any changes to how the amount of spousal support, alimony pendente lite or alimony are calculated given the change in the tax law. If there are no changes to the calculations, the result will be a loss of tax advantage for the party paying support, while the party receiving support will receive the benefit. If there are changes to the support calculations, I would anticipate that we will know by the end of this year. Stay tuned.
Although the weather is just starting to change to cooler temperatures, the holiday season is fast approaching. Holiday displays are up, holiday music is already playing and even the pre-Black Friday sales have started. It seems that with the warmer temperatures well into the fall, the holidays have snuck up on us all. While it is easy to get wrapped up in the spirit of the season, if you have minor children and a custody agreement or order, it is time to take a look at your custody documents and give some thought to what lies ahead in the next several weeks.
Before you make plans with your children, it is important to see what the holiday schedule is for this year. Which days of the holidays are your children with you, what times are they with you, and who is responsible for transporting the children? It is important that you know the answers to all of these questions. Take out your custody agreement or order now and look through the schedule for Thanksgiving through New Year’s. If you have questions, now is the time to ask your attorney, not on Thanksgiving morning. We all know that a lot of advance planning occurs for the holidays, and family gatherings are scheduled. If it is important to you that your children celebrate with you and your extended family, you want to be sure to make your plans around when you have physical custody of the children. Knowing the details of the holiday schedule now will enable you to make plans based upon the custody schedule and keep everyone happy, which should result in a more peaceful holiday for you.
With the start of the school year quickly approaching, parents who exercise shared physical custody of their child(ren) and who reside in the same school district can rest assured that the school district must provide free transportation for their child(ren) to and from each parent’s respective residence.
In Watts v. Manheim Township School District, the Pennsylvania Supreme Court upheld the Commonwealth Court ruling requiring school districts to transport students to and from the residences of each parent if they are separated or divorced and sharing physical custody. The Pennsylvania Supreme Court was asked to determine whether the Public School Code “mandates that a school district provide free transportation to a student from two different residences where the student’s parents share physical custody of the student and both parents reside within the school district.”
The parties in Watts exercised shared legal and physical custody of their child on an alternating weekly basis pursuant to a Court Order. Both parties resided within the school district where their child attended school, but along different school district bus routes. Father’s residence was located approximately 4.5 miles from the school and Mother’s residence was located approximately 5.5 miles from the school.
The Pennsylvania Supreme Court determined the following: the school district owes a duty of transportation to the student residing within the school district as a “resident pupil”; the student has two residences for enrollment purposes when the parents exercise shared physical custody of the student; the school district’s duty of transportation includes transportation to and from more than one location within the school district when the student has two residences within the school district; and the purpose of having the school district provide free transportation services to the student is to help facilitate school attendance.
Knowing your rights with regard to school bus transportation and custody can alleviate some of the stress and anxiety you may otherwise experience as your child(ren) return to school.
Prior to Pennsylvania legally recognizing same-sex marriages, other states did offer same-sex marriages or civil unions. A problem for couples who entered into an out-of-state marriage or civil union was that if they later decided to divorce, they could not do so in the Pennsylvania family courts. This was because Pennsylvania did not recognize those marriages or civil unions as legal. In June 2013, in United States v. Windsor, the United States Supreme Court ruled that the Defense of Marriage Act’s (DOMA) defining marriage as between one man and one woman was unconstitutional, but the Court limited the impact of their decision. In May 2014, the United States District Court for the Middle District of Pennsylvania ruled in Whitewood v. Wolf that Pennsylvania’s definition of marriage and refusal to recognize out-of-state same-sex marriages were unconstitutional. Then, in June 2015, the United Stated Supreme Court in Obergefell v. Hodges ruled that same-sex couples must have the right to marry. This decision applies to every state.
While these decisions expanded rights to same-sex couples, a lot of questions were left unanswered. One of the big questions was whether civil unions entered into in other states prior to the legalization of same-sex marriage would be recognized by Pennsylvania. If the civil unions were not recognized as legal marriages, then Pennsylvania courts did not have to grant divorces, divide the assets and liabilities through equitable distribution or address support issues There were potential child custody ramifications as well. This left Pennsylvania same-sex couples who legally entered into out-of-state civil unions without the ability to divorce or deal with the economics related to their marriage through the family courts in their home state.
On December 28, 2016, the Superior Court of Pennsylvania addressed this question in Neyman v. Buckley. The Superior Court of Pennsylvania ruled “that a Vermont civil union creates the functional equivalent of marriage for the purposes of dissolution.” In this case, the parties, Pennsylvania residents, entered into a Vermont civil union in 2002 and separated later that year. From 2014 through 2015 the parties unsuccessfully sought a divorce in Pennsylvania and appealed their case to the Pennsylvania Superior Court arguing that the Pennsylvania family court should have jurisdiction to dissolve their Vermont civil union and that the Vermont civil union should be treated as a legal marriage in Pennsylvania. It is important to note that Vermont intended same-sex couples that entered into civil unions to have the same rights and access to the family court system as those who were married. The Superior Court of Pennsylvania used this reasoning to “conclude that the legal properties of a Vermont civil union weigh in favor of recognizing such unions as the legal equivalent of marriage for purposes of dissolution under the Divorce Code.” This decision allows same-sex couples who entered into out-of-state civil unions the same rights as if the civil union were a marriage. It also allows these couples access to Pennsylvania family courts to address those issues permitted under the Pennsylvania Divorce Code.
"The secret to change is to focus all of your energy, not on fighting the old, but on building the new.
- Dan Millman, “Way of the Peaceful Warrior: A Book That Changes Lives”
People make resolutions to start off the New Year, such as dieting, giving up smoking, saving money and making more money. As we begin 2017, a common resolution on the minds of many is to get a divorce.
Oftentimes, this “resolution” was made earlier in the year, but there was a decision, or even a discussion, to not do anything until after the holidays.
Making the decision to end your marriage is the first step. Then, there is the actual process. The next step is to get yourself organized. If you have access to records regarding your assets, liabilities and income, get them. You should photocopy them and keep them somewhere safe. (The safest place is in the home of a friend or somewhere your spouse does not have access.) If you do not have access to that information, do not panic. You will be able to obtain the information during the divorce process.
After you are organized, get legal advice from an attorney in the area in which you live. Do not rely on the advice of friends and family. In particular, do not rely on information about divorces on the internet. There is a lot of misinformation on the internet. Divorces and their outcomes tend to vary from person to person based upon their circumstances. Get advice tailored to your circumstances.
Lastly, be reminded that you are not the only one in your divorce. It involves your spouse, your children, your in-laws, your friends and neighbors. You will find yourself in unfamiliar territory. However, if you remember that you are making this resolution for a reason, you will manage your divorce with dignity, and soon find yourself on the other side.
Most people believe that they have plenty of time before they have to start considering their 2016 taxes to be filed in 2017, and for most, the tax return process is not something they just can’t wait to get started. That being said, if you are separated or in the process of a divorce, now is the time to start thinking about your tax filing status for your 2016 income tax returns. Some thoughtful planning and discussion now can go a long way in avoiding stressful emergency issues in the weeks leading up to April 15th, and instead provide adequate time to address and resolve any concerns. If you are separated but not divorced by December 31, 2016, you have a few different options of how you can file your taxes: married filing jointly, married filing separately or perhaps even head of household. You cannot file single if you are not divorced in 2016.
The reason to start thinking about your 2016 tax filing status now is that if you want to file as married filing jointly, your spouse must agree. Now is the time to speak to your accountant to determine the most advantageous tax filing status. You should also decide if there are any concerns that you have that would prevent you from choosing one of the options. If you and your accountant determine that married filing jointly is the best option, and your spouse disagrees, you will have time to involve the attorneys and work towards an agreement as to tax filing status. In many cases, an Agreement to File Joint Income Tax Returns/Tax Indemnification Agreement is the best way to proceed in order to set forth each spouses’ responsibilities in terms of preparing and filing the returns, addressing any taxes due or refunds that might be received, and to protect you from any potential tax liability related to your spouse.
You can set yourself up for a less stressful tax season in 2017 by starting the discussion now.
On October 4, 2016, Governor Wolf signed into law new legislation that will change the separation requirement from a two year waiting period to one year. The law goes into effect on December 3, 2016. Under current law, the Divorce Code provides that in cases where only one party desires a divorce, that party must wait two years from the date of separation before they can move the matter forward. At that two year mark, the party who is seeking the divorce can move the matter forward without the non-consenting party’s agreement. The longer waiting period has often led to cases dragging on for too much time, which can lead to more animosity between the parties. For children involved in the separation, this has often had a negative impact. As a result of the passage of this new law, the hope is that cases will resolve much more quickly.
It should be noted, however, that at the one year mark from the date of separation, the case is not resolved, but rather at that time the case is permitted to proceed. It is by no means a guarantee that the process will not be lengthy from that point forward.
Stay tuned for updates as we see how the law is applied by the courts.
The decision to remarry is not made lightly. Marrying a second time is oftentimes very different from a first marriage. Parties involved in a second marriage are likely to have assets and children from a prior relationship. Recalling the time, money and emotional energy spent during a divorce, friends and advisors might mention a prenuptial agreement. A well-drafted prenuptial agreement can protect these hard-earned valuables.
Is a prenuptial agreement right for you? It is if you want to avoid the aggravation and expense of litigating your future. Protect yourself.
A prenuptial agreement is a contract between persons who plan to marry. The agreement addresses how property is to be divided or the terms of support/alimony in the event of a divorce or the death of one of the parties. Executing an agreement before being married in order to address what will occur in the event of divorce is not romantic, but it is smart.
What can be expected? What needs to be done?
Once it is decided that a prenuptial agreement is appropriate, the first step is to contact an attorney well in advance of a wedding date. Presenting a prenuptial agreement to one’s fiancée on the eve of a wedding adds unnecessary pressure to an already stressful time.
Anticipate providing your attorney documentation of current assets, liabilities and sources of income. To ensure that an agreement's validity cannot be challenged at later date, the parties must disclose their current financial status. Prepare an outline of assets and liabilities and bring recent tax returns to your meeting to help make the process easier.
Few experiences in life are as emotionally challenging as divorce. It is not surprising that clients may focus on the issuance of the Divorce Decree as the end of a very painful chapter in their lives. After all, as of the signing of the Divorce Decree, the parties are divorced, and the work is over. Unfortunately, in most cases, there is still important work to be accomplished even after the judge signs the Divorce Decree. Family law clients will have an easier time accepting this reality if they know in advance that the Divorce Decree is not the last step in their case.
There are many important matters that may remain outstanding when a Divorce Decree is issued, and some of the key factors are discussed here. Most divorce clients resolve the division of their assets by entering into a settlement agreement, or a judge issues an order resolving all claims related to the marriage. Those assets are then typically divided after the Divorce Decree is issued. Bank accounts are divided and closed. If there are retirement accounts to be transferred, there are very specific and time consuming rules to follow to transfer the retirement assets from one spouse or ex-spouse to the other. The retirement assets can take many months to divide which is understandably frustrating for clients. Mortgages on real estate may have to be refinanced and deeds transferred. While these procedures can be time consuming and frustrating to complete, clearly, they are critical to the future financial well-being of the parties involved, so perseverance and patience will pay off in the long run.
After those issues relating to marital property, claims and assets are resolved, there are still some items that we suggest clients accomplish after the Divorce Decree to ensure that they have all the legal documentation completed to address their needs post-divorce. A spouse may want to retake her maiden name. Also, we suggest that Wills and Powers of Attorney be updated so that the ex-spouse is no longer included in the Will or has Power of Attorney. Beneficiary designations should be updated for life insurance policies, retirement accounts and other assets as well. These are merely some of the items that may have to be accomplished post-Divorce Decree.
In order to have realistic expectations of the divorce process, it is important to understand from the start that everything is not finished when the judge signs the Divorce Decree. There is usually more work to be accomplished before the case is completed.
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