Blog Subscribe

Like this blog? Why not Subscribe?

Pacific Divorce Management Blog

Taxes are guaranteed to be a complication of every divorce financial settlement. Misunderstanding the tax code, even worse completely ignoring it, can have devastating effects on your financial future.

The errors get more costly and more common when estates and incomes get larger and people start getting creative. Negotiating a creative and mutually beneficial divorce financial settlement can be complicated when you have significant assets and income. Make sure you and your attorney have the help of a financial expert skilled and experienced in navigating the tax codes of divorce. Here are some common errors.

1. Failure to consider the value of dependency exemptions and filing status for income taxes. High earners are often phased out of using dependency exemptions, failure to negotiate the use post divorce could waste tax dollars.

2. Not understanding the difference between child support and spousal support for tax purposes. Spousal support is taxable to the recipient, tax deductible for the payer.

3. Structuring future changes in spousal support in close proximity to an event or mile-stone related to your children. This is also known as the Child Contingency rule and could cause tax deductible spousal support payments to be re-classified as non-deductible child support.

4. Failure to deduct attorney fees related to spousal support dispute as a miscellaneous itemized deduction. Yes your attorney fees are deductible to the extent they were incurred in the process of seeking tax advice or spousal support. You will need to ask your lawyer for an itemized break out of the litgiation costs. This can be incredibly valuable in protracted, expensive litigation.

5. Running afoul of Section 1041 of the internal revenue code. Section 1041 is the IRS code that allows spouses, married or divorcing, to transfer assets to one another without tax consequence. There are however rules to follow like how ling you have to complete a transaction.

6. Assuming your CPA understands the tax code related to divorce. They can certainly look things up but it is a bad idea to assume your CPA understands the tax intricacies of divorce. The last time I spoke to a California Society of Certified Public Accountants group there were 200+ CPA’s in the room and 200+ questions after the presentation.

An individual’s Social Security Benefits Statement can be a valuable resource in your divorce financial planning. Make sure to gather copies of the most recent statements available and we can help you uncover a wealth of financial knowledge.

1. Earnings and employment history. The Social Security Statement is a great place to look for a historical average of employment earnings. It is valuable to understand the earnings history and trajectory of both parties in a divorce. Producing a copy of a Social Security Statement for a mother who has been a full time mom for 18 years creates a powerful exhibit to demonstrate the need for ongoing support from the working spouse. Likewise it can demonstrate the trajectory of an individuals income either up or down.

2. Estimated retirement and disability benefits for long term, post divorce financial planning purposes. Understanding the long term cash flow is very important when negotiating a financial settlement. Having details of the Social Security administration’s estimated benefits can help me as a planner and my client’s understand the future of cash flow even if it may be 15 years in the future.

3. If there is a public pension. A worker who participates in California State Teacher’s Retirement System (STRS) or California Public Employees Retirement System (PERS) and many other governmental retirement systems may not have been paying into the Social Security system. Some may pay into Medicare but not Social Security. You can see this if the worker’s statement has wages in the Medicare taxed earnings column but not the Social Security column.

4. Derivative benefits available to a former spouse. In long term marriage (over 10 years according to the Social Security administration) a divorcee can receive derivative benefits on the record of their former spouse. The derivative benefit is equal to one half of the former spouse’s benefit which can be found on their annual statement. This is useful for long term planning and can be important in long term spousal support negotiations.

5. Social Security and Medicare tax details. We often need to estimate incomes for negotiation purposes. A common mistake occurs when the 6.2% Social Security tax is applied to the worker’s entire income. Instead the tax should be applied only to the first $106,800 in 2011. If you apply the tax to $300,000 of income the net, after tax income will be understated by $11,978 per year. In 2012 the wage base increase to $110,100.

6. Possible application of Government Pension Offset Provision (GPO) or Windfall Elimination Provision (WEP). Those workers mentioned in #3 above may find themselves subject to the GPO or WEP and end up receiving less benefits than they expected if not careful. It is always important to understand how these government provisions affect an inidividual in divorce. The Social Security Statement even talks about them in the bottom right hand corner of page 2 in it’s current lay-out.

7. Existence of tax deferral vehicles such as deferred compensation plans and retirement accounts. If the numbers reported under Medicare wages don’t match those reported in the Social Security earnings column there may be tax deferral vehicles like deferred compensation plans that are being used. The worker may also have simply hit the Social Security wage base maximum after which Social Security taxes are no longer incurred but Medicare taxes are.

8. Mis-reported income. In California an individual involved in divorce proceedings must file a declaration of disclosure detailing their income and expenses and sign it for accuracy under penalty of perjury. This doesn’t keep people from reporting incorrect figures. If the Social Security Statement doesn’t match what is reported on the declaration their better be an explanation.

Unfortunately Social Security Statements are no longer mailed to you if you are under 60 years of age. The Social Security Administration is providing an online version of taxpayers’ Social Security statements. The online version is now available at www.socialsecurity.gov/mystatement.

An experienced Divorce Financial Planning expert can find a lot from otherwise simple and easily available documentation. Imagine what I can find with a complete and accurate set of financial documents.

The quick and easy answer is yes. Both in statistics as well as our experience.

The American Academy of Matrimonial Lawyers (AAML) released a statement with a rather catchy opening sentence. “This Mother’s Day, it appears that an increasing number of mom’s will be setting aside time to sign child support and alimony checks.”

The key to note is that they are signing the front of the check, not the back. 56% of the AAML fellow attorneys said they have seen an increase in mothers who pay child support and women in general paying spousal support.

As our society progresses the social norms are changing and stay-at-home fathers are becoming more common. I personally support the family’s right to choose what is best for them and whoever is more inclined to be in the work force should be. It is encouraging to also see income in-equality becoming less of a concern as well.

I have seen an increase in women writing the support checks in my practice too and I am here to report the female support check writer is every bit as troubled about writing the child support or spousal support check every month as her male counterpart. In fact I might say even more troubled by having to write that check every month. Maybe this piece of the social norm shift hasn’t caught up yet. The stigma on men receiving spousal support or child support payments seems to be alive and well.

 

Read the full text of the AAML press release here. http://www.marketwatch.com/story/more-women-paying-child-support-and-alimony-2012-05-08

 

The Wall Street Journal ran an article on Monday April 30th 2012 titled Why Hiding Money From Your Spouse Has Gotten a Lot Harder . Click on the link to read the full article. Here is the summary version with Divorce Financial Planning in mind.

1. Gathering data and compiling a complete picture of a family’s finances can be difficult when someone tries to hide assets or spending but it is not impossible.

2. The advent of electronic discovery and forensic experts skilled in the tracing of electronic data make it possible to catch cheating spouses who open separate bank accounts to pay for their new girlfriend/boyfriend’s apartment or gifts or vacations.

3. 81% of the American Academy of Matrimonial Lawyers said they have seen an increase int he use of evidence from social networking sites such as LinkedIn and Facebook, 92% saw an increase in evidence from smart phones.

4. Taking information from your spouse’s password protected computer because you happen to know the password is probably against the law and anything you find might not be admissible in court anyway. Please consult an attorney. Gordon Cruse and Jim Hennenhoefer, both quoted in the WSJ story, are great attorneys to talk to about e-discovery in San Diego.

My take away. We have yet another tool in the war against misappropriated assets in divorce. A good discovery plan is absolutely mandatory when you suspect a spouse might be hiding assets. Electronic discovery may be an important part of that discovery plan and can help you greatly in your divorce financial planning. Knowledge is power. The more you know the more you can negotiate so do your best to get the information early and often in your divorce. If you have suspicions, talk to your lawyer and ask about electronic discovery.

Client’s often complain a Judge’s decisions are arbitrary and uninformed. It helps to illustrate exactly what happens to information in the litigation process.

A family court judge has a lot of information thrown at them in very short time lines. Depending upon your jurisdiction a judge might have to here every piece of a case from spouses bad mouthing one another to accusations of infidelity to child custody disputes and forensic accounting to prove lifestyle or separate property claims. It is natural for there to be two sides to each issue as divorce is a dispute after all so the judge must often here the same story twice just told in two different ways.

Judges are tasked with listening, understanding and ultimately rendering decisions. In order to do so they must understand the flow of information and our clients should too. The cartoon below is an illustration of how information is gathered, disseminated and ultimately used by a judge to render a decision.
When it comes to a family’s financial picture it is unlikely that anyone will start a divorce proceeding with an accurate and complete picture of everything. This is why data gathering is so important to a divorce case. The largest box in the cartoon represents the actual complete financial picture.
An attorney is tasked with gaining an understanding of the family financial picture in order to educate a judge and argue their client’s case in a divorce matter. The second box in the cartoon represents the amount of financial information a given attorney will be successful at gathering, summarizing and assimilating into a logical analysis and presentation. It will never be 100% complete and 100% accurate because it is not their life. It is rare that an individual has a complete and accurate understanding of their own finances. It would be overly optimistic to assume an attorney can ever understand something more intimately than their clients.
In any contested divorce case their will be two opinions and maybe even two sets of data. In a perfect world you could at least agree upon the data but discovery problems, stonewalling and lack of trust cause problems. So it follows that a judge hears two sides of the same story and given even less time than the attorneys had, must assimilate the knowledge imparted by both lawyers into their own understanding. Given the lack of time and the need for summary data the judge will understand even less which you can see in the third box.
Ultimately a judge must then make a decision based on the testimony, evidence and legal arguments which will render some of what they learn from the lawyers to be worthless. After three days of trial and various conflicting points of view the judge is left with a microcosm of the original financial picture and they render an opinion which is ultimately turned into an order.
Next time you are wondering about the value of information in a divorce case remind yourself of this illustration and do your best to keep the box from shrinking by keeping the decisions in the hands of those who know best, the clients.

Client Services

Pacific Divorce Management provides education and support for our clients during difficult decision making processes in order to facilitate rational and informed conclusions.
More Information

Attorney Services

Are you an attorney who needs expert counseling and support for your clients' financial matters? Pacific Divorce Management can help.
More Information

Professional Newsletter

Our monthly newsletter guides professionals through the ever changing landscape of divorce financial issues.
Sign Up Today!