Military Divorces 101, Part 3

May 16, 2013

Military divorces present unique challenges and far-reaching ramifications for our clients.  This area of law is a complex mixture of several Federal and State statutes which are balanced against the servicemember spouse’s particular branch procedures and the standards and practices in your jurisdiction.  At Graine Mediation, we know the jargon, understand the issues, and are skilled at making sure that both parties have all the information they need in order to make the best settlement choices they can mutually agree upon for themselves and their children.

In this special, three-part blog post, we’ll try to demystify this process for you.

military-divorce2

SPOUSAL SUPPORT (ALIMONY):

Unique Challenges: Military divorce cases present unique challenges in terms of spousal support.  Many military spouses have given up opportunities for career advancement in order to support the career of the servicemember spouse. Military spouses, too, often end up living in places where they do not have family resources (grandparents, aunts & uncles, etc), or choice in the cost of housing, etc.  This is common in Northern Virginia, an area that is targeted by many military families as a good place to send their children to school during the final years of the servicemember’s duty. For many military families, this plan was ideal when the marriage was intact, but many parents find Northern Virginia a very expensive place to raise a family post-divorce.  There is also the factor of health insurance for the non-servicemember spouse, which is a brand new expense for most military families, and perhaps vocational training/college for the former spouse in order to “catch up” in terms of career planning.

More Information: Otherwise, the factors for consideration in a military divorce are the same as those necessary in a fully civilian divorce.  For more information on spousal support in Virginia, generally, email Robin Graine (grainemediation@gmail.com) for an advance copy of her blog article “How is Spousal Support (Alimony) Calculated in Virginia?” (not yet published as of May 2013 on http://www.fairfaxdivorceblog.com)

HEALTHCARE & OTHER MILITARY BENEFITS: 

In some instances, former military spouses are entitled to healthcare and certain other military benefits.  In other cases, they are not.  The rules are strictly military, and state courts have no say-so in determining whether a spouse will be permitted to retain her or his military benefits upon divorce.  The military rules follow:

Full Benefits (“20/20/20” Rule):  A former spouse of a servicemember is defined as a dependent, and therefore entitled to all military benefits and installation privileges, including medical, commissary, military exchanges (PX/BX), if the following criteria is met:

  • The former spouse was married to the servicemember for at least 20 years;
  • The servicemember had at least 20 years of creditable service; and
  • There was at least a 20-year overlap between the marriage and the military service.

(10 U.S. Code §1072(2)(F))

Transitional Benefits (“20/20/15″ Rule):  A former spouse of a servicemember is defined as a dependent for purposes of military medical care only, and entitled to one year of transitional medical benefits (not other military benefits, such as commissary, PX/BX, etc.), when she or he does not meet the criteria for Full Benefits (above), but she or he meets the following lesser criteria:

  • The former spouse was married to the servicemember at least 20 years;
  • The servicemember had at least 20 years of creditable service; and
  • There was at least a 15-year overlap between the marriage and the military service.

(10 U.S. Code §1072(2)(G) & (H))

No Dental; Tricare Standard: For both Full and Transitional Benefits, the health coverage is for medical only, not dental.  Also, unless the former spouse pays an annual premium of approximately $230, the coverage is the equivalent of Tricare Standard, not Tricare Prime.

Suspension Of Benefits: There are several fact patterns that will result in suspension of a former spouse’s military benefits post-divorce, including the following:

  • Medical benefits are suspended while the former spouse is covered by an employer-sponsored health care plan;
  • Medical benefits are terminated upon the former spouse’s remarriage; and
  • Commissary, military exchange (BX/PX) and other installation privileges (20/20/20 spouses) are suspended while the former spouse is remarried, but reinstated if that remarriage terminates due to death or divorce.

POST 9/11 GI BILL:

Not Considered Divisible Property, but appropriately considered in settlement: Many military servicemembers have access to the “Post 911 GI Bill.” For purposes of property division pursuant to a divorce, the GI Bill is not categorized as divisible property by the state courts. However, that does not mean that the potential benefits and value of the Post 9/11 GI Bill is not appropriately considered when mediating a divorce settlement.

What is the Post 9/11 GI Bill: The Post-9/11 GI Bill provides financial support for education and housing to individuals with at least 90 days of aggregate service after September 10, 2001, or individuals discharged with a service-connected disability after 30 days. You must have received an honorable discharge to be eligible for the Post-9/11 GI Bill.

Approved training under the Post-9/11 GI Bill includes graduate and undergraduate degrees, vocational/technical training, on-the-job training, flight training, correspondence training, licensing and national testing programs, entrepreneurship training, and tutorial assistance. All training programs must be approved for GI Bill benefits.

This benefit provides up to 36 months of education benefits, which are generally payable for 15 years following your release from active duty.

What will the Post 9/11 GI Bill Pay For? Some of expenses that the Post-9/11 GI Bill will pay include:

Servicemembers are Entitled to Transfer their Post 9/11 GI Bill to their Spouses and Children:  All members of the Armed Forces (active duty or Selected Reserve, officer or enlisted), who are eligible for the Post 9/11 GI Bill, are permitted to transfer their rights to this bill when the servicemember has:

  •  At least 6 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of approval and agrees to serve 4 additional years in the Armed Forces from the date of election.
  • At least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of approval, is precluded by either standard policy (Service or DoD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.
  • Is or becomes retirement eligible and agrees to serve an additional 4 years of service on or after August 1, 2012. A servicemember is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed pursuant to section 12732 of title 10 U.S.C.

Moreover, any such transfer must be requested and approved while the member is still in the Armed Forces.

Servicemembers may transfer their Post 9/11 GI Bill to one or more of their children and spouse, or any combination of those people.

Further, the subsequent divorce of a military servicemember who had previously transferred his or her Post 9/11 GI Bill to his or her now ex-spouse, does not negate the transfer.  Further, the marriage of a child to whom a servicemember transferred his or her Post 9/11 GI Bill does not revoke the transfer, either.

Very importantly, too, the military rules state that the servicemember who transfers the Post 9/11 GI Bill to a family member retains the right to revoke or modify the transfer at any time.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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Military Divorces 101, Part 2

May 15, 2013

Military divorces present unique challenges and far-reaching ramifications for our clients.  This area of law is a complex mixture of several Federal and State statutes which are balanced against the servicemember spouse’s particular branch procedures and the standards and practices in your jurisdiction.  At Graine Mediation, we know the jargon, understand the issues, and are skilled at making sure that both parties have all the information they need in order to make the best settlement choices they can mutually agree upon for themselves and their children.

In this special, three-part blog post, we’ll try to demystify this process for you.

child-support

CHILD SUPPORT

Child Support is Calculated Using Virginia State Minimum Guidelines: At Graine Mediation, minimum guidelines child support is calculated using the Virginia State Guidelines.  Our software used for calculations, “VADER”, is the calculator used by most attorneys and judges in Northern Virginia. The various branches of the military, too, have their own minimum family support calculations.  However, the military child support guidelines tend to be lower than state guidelines and are really only intended to provide a temporary solution in an emergency situation.

Gross Income: Child support is based, in large part, on the parties’ gross monthly incomes.  For a servicemember or retired servicemember, the Leave and Earnings Statement (LES) and the Retiree Account Statement (RAS), are essential to determine gross monthly income.  In Virginia, the courts broadly interpret the term “gross monthly income”.  That means that just about every form of income that a servicemember receives is includable in the gross income variable for the child support calculation.  For military clients, the gross salary variable used in the Virginia Guideline’s Child Support Calculation includes, but it not necessarily limited to:

  • Base Salary
  • BAH (Basic Allowance for Housing): A housing allowance calculated using location, family commitments, and the servicemember’s pay grade
  • BAS (Basic Allowance for Subsistence):  All servicemembers receive this form of pay when on tour ($150-$300/month)
  • FSA (Family Separation Allowance-II): An allowance for mobilized servicemembers who have been separated from their family members for more than 30 consecutive days (approximately $250.00/month)
  • HDP-L (Hardship Duty Pay): The amount of HDP-L depends on the servicemember’s deployment location.  ($50-$150/month)
  • HF/IDP (Hostile Fire/Imminent Danger Pay): Often referred to as “combat pay”.  When HF/IDP is used to a servicemember in certain designated combat zones, HF/IDP is tax free. (approximately $225/month), see CZTE, immediately below
  • CZTE (Combat Zone Tax Exclusion):  This is a monetary benefit for certain designated zones where a servicemember may be deployed.  CZTE releases a servicemember from paying having to pay Federal and State tax on his or her Base Salary and HF/IDP.
  • Travel Per Diem: Since servicemembers are usually provided housing when on tour, there is only a small per diem travel allowance (approximately $3.00-$3.50/day) for living expenses.
  • In Kind Compensation: This is non-cash compensation in the form of housing, meals, and other nonmonetary compensation (not found on the LES).

Even non-taxable pay is factored into a Virginia child support calculation as part of the servicemember parent’s gross income.  Because so many servicemembers receive various forms of compensation as tax-free pay, the LES, and not income tax returns, is a much better source of information to use when determining a servicemember’s gross income.

Deployment:  When a servicemember deploys, goes on a mission, goes on tour, etc. (hereinafter referred to as “deployment”), he or she is compensated with one or more special pay benefits (as listed immediately above in the “Gross Income” section).  When a servicemember is deployed, child support is often recalculated, since the main variable – gross income – will surely change.  Some clients, however, choose to defer a complete recalculation of child support, particularly when the deployment is thought to be of short duration, and instead opt for a “per diem” calculation based on the servicemember’s special compensation.

Per Diem:  Per diem child support calculations, which may be initiated upon a servicemember parent’s deployment (depending on how the Settlement Agreement is drafted) are sometimes used by our clients for the following two reasons:

(1) The parent who is stationary (not deployed) is effectively responsible for 100% of the childcare tasks and expenses.  There is “no break” in the childcare costs and duties because the children are always with the stationary (not deployed) parent.  This makes caring for the children much more expensive; and

(2) The increased custodial care responsibilities of the stationary parent may demand time away from income earning pursuits and, as a result, the stationary parent’s income may decrease.

As a temporary solution to account for these circumstances, some parties choose a per diem (per day) calculation based on an agreed upon percentage of the servicemembers various special compensation benefits. That percentage, in our cases, is never below what the Virginia minimum guidelines would have provided the stationary parent if a recalculation was done, but allows for a temporary solution to the deployment-related financial issues in a co-parenting situation.  Also, depending on how your Settlement Agreement is written, this can be a “self-executing provision” (meaning that you do not need to go to Court to effect this temporary per diem child support obligation).

Per Diem as Relates to a Shared Child Support Calculation:  When child support has been calculated using the Virginia Shared Child Support Calculations, a per diem is usually not the best reflection of the parties changed circumstances.  Since Virginia Shared Child Support Calculations factor in the actual time the children spend with both parents into the financial calculation, a situation where a parent is deployed is not appropriate for a shared calculation.  In most cases, the Child Support Calculation will need to be redone using the Virginia Sole Child Support Calculation. Depending on how your Settlement Agreement is written, this can be a “self-executing provision” (meaning that you do not need to go to Court to effect this temporary recalculation).

More Information: For more information on Virginia child support guidelines, generally, email Robin Graine (grainemediation@gmail.com) for an advance copy of her blog article “How is Child Support Calculated in Virginia?” (not yet published as of May 2013 on http://www.fairfaxdivorceblog.com)

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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Military Divorces 101, Part 1

May 14, 2013

Military divorces present unique challenges and far-reaching ramifications for our clients.  This area of law is a complex mixture of several Federal and State statutes which are balanced against the servicemember spouse’s particular branch procedures and the standards and practices in your jurisdiction.  At Graine Mediation, we know the jargon, understand the issues, and are skilled at making sure that both parties have all the information they need in order to make the best settlement choices they can mutually agree upon for themselves and their children.

In this special, three-part blog post, we’ll try to demystify this process for you.

military_divorce

Retirement Benefits

Because so many servicemembers retire from the armed forces at a fairly young age, retirement benefits are often the largest and single most important asset to be discussed at a mediation.  The division of military retirement benefits must be dealt with as part of the parties’ settlement agreement.  It is not something that can be put on hold, or the right of the non-servicemember to receive a portion of the other spouse’s military retirement benefits may be lost forever.

Retirement Benefits are Considered Property, to be Divided by the Court (the marital portion): Division and distribution of military pensions is governed primarily by the USFSPA (Uniformed Servicemember’s Former Spouse Protection Act, 10 USC 1408) and §20-107.3 (Code of Virginia, 1950). The USFSPA allows state courts to treat a military retiree’s actual retirement pay as property, to be divided and distributed as per that state’s divorce code. In Virginia, the marital portion of military retirement benefits are recognized as divisible property by the divorce courts.

50%/50% Division of Marital Portion of Military Retirement is Common in Virginia: In Virginia, retirement benefits are to be divided “equitably”, which does not necessarily mean “equally”. Nonetheless, it is fairly common that the former spouse’s

“equitable” share of the marital portion of the military retirement benefits is perceived to be, and ends up being settled or ordered to be, an equal (50%/50%) share.   Also, it is

notable that, in Virginia, 50% is the maximum amount that a Virginia judge can award to the non-servicemember spouse, though parties can agree to a higher ratio if they choose. Also, the DFAS (Defense Finance and Accounting Services) will only recognize court orders to directly pay a former spouse’s share of a servicemember’s retirement benefits up to 50% (if the amount is to be more, the servicemember would have to pay his former spouse the overage).

            Marital Portion versus NonMarital Portion – Coverature Fraction:  The most common method of determining the marital share of a military retirement is by use of a “coverature fraction”.  The formula follows:

Number of Months of Marriage

______________________________________

Number of Months of Military Service

 =

Marital Portion of Retirement Benefits

Example:

144 Months (12 Years) Marriage (all during servicemember’s time in military)

______________________________________

240 Months (20 Years) Military Service

=

60% of the Retirement Benefits are Marital of which, most likely, 50% of that 60% will be distributed to the non-servicemember spouse = 30% to the non-servicemember. All of that monthly amount will be eligible to be paid directly by DFAS (met 10/10 rule (see below) and the distribution not greater than 50%.

            The 10/10 Rule:  The DFAS (Defense Finance and Accounting Services) will make direct retirement annuity payments to the non-servicemember spouse only when the following criteria are met:

  • The parties were married for at least 10 years; and
  • During the marriage, the servicemember performed at least 10 years of credible military service; and
  • The servicemember is eligible for retirement (20 years service).

If these criteria are not met, this does not prevent a court from awarding military retirement pay to a former spouse. The Court will simply order that the servicemember spouse pay his or her former spouse directly (without the assistance of DFAS).  This is also true if the award to the former spouse is greater than 50%, since DFAS will only pay up to 50% after the 10/10 rule is met.

Only “Disposable Retired Pay” is subject to division in a divorce. The term “disposable retired pay” (as defined under 10 USC §1408) means the total monthly gross retired pay, minus the following:

  • Amounts owed to the government for previous overpayments (not common),
  • Forfeitures adjudged by a court-martial (not common),
  • Pay waived to receive VA disability (common, but less so than before CRDP), and
  • SBP (Survivor Benefit Plan) premiums for the benefit of the former spouse seeking a share of the retirement (common).

Perhaps of greatest interest, “disposal retired pay” does not include certain types of disability pay in lieu of retirement.

Disability:

                        VA Disability - Retired servicemembers may receive a tax-free    monetary benefit for disabilities that are the result of a disease or injury incurred or aggravated during active military service. The benefit amount is graduated, according to the degree of the veteran’s disability, on a scale     from 10 percent to 100 percent. Compensation may also be paid for disabilities that are considered related or secondary to disabilities occurring in service, and for disabilities presumed to be related to circumstances of military service, even though they may arise after service.  In exchange for receiving the tax-free VA disability pay, servicemembers used to always have to give up their retirement benefits at a commensurate amount.  This is no longer the case in many situations.

CRDP (Concurrent Retirement Disability Pay): Qualified disabled military retirees with 20 or more years of service and at least a 50% disability rating by VA for service (not necessarily combat) related illnesses and injuries will now get paid both their full military retirement pay (taxable) and their full VA disability compensation (non   taxable). This 2004 law will be fully phased in beginning 2014.  That means that military retirees with 20 or more years of service and a 50% (or higher) VA rated disability will no longer have their military retirement pay reduced by the amount of their VA disability compensation. For divorce clients, that means that the former spouse of the service member need no longer fear that a grant of VA disability will cut her or his retirement benefits granted in the divorce.   CRDP is an automatic entitlement.  No application by the servicemember is necessary. Remember: For service related illnesses and injuries, with a VA disability rating of less than 50%, retirement benefits must still be waived, dollar for dollar, in exchange for VA disability benefits (which are not considered marital property, and are not, therefore, divisible by the divorce courts).

CRSC (Combat Related Special Compensation): CRSC is for combat (not just service) related illnesses and injuries, when servicemembers have put in   at least 20 or more years of service.  CRSC is an application-based program (not automatic, like CRDP).  Servicemembers have yearly opportunities to apply for            CRSC.  CRSC is not divisible in a divorce situation (unlike CRDP) and it only requires a 10% VA disability rating (not 50%, as for the CRDP). CRSC is not taxable, like VA disability benefits (CRDP is taxable).

Indemnification Clause:  The effect of VA disability and other    discretionary exchanges of military retirement pay for other non-divisible compensation, may need to be addressed in an agreement. This is true even if      the servicemember spouse is not receiving VA disability at the time of settlement/divorce, because VA disability benefits may be granted (with a commensurate step down of the monthly pension) much later than the actual    divorce. Often times, an indemnification provision is put into a settlement agreement stating that, if the servicemember spouse makes an election to   receive any type of disability pay that results in a reduction in his/her retirement     pay, that he or she will indemnify and pay his or her former spouse the amount that the former spouse would have received if the servicemember spouse did not make that election.

            Survivor Benefit Plan (SBP) & Cost of Living Adjustment (COLA’s): For a former spouse to continue receiving payments after the death of the servicemember, the former spouse must be named in a Survivor Benefit Plan (governed by 10 USC 1448).

This is a big decision for many couples we work with because:

Monthly Cost for SBP – Shared at Proportionate Amount: The monthly retirement annuity will be reduced when there is a SBP in the form of a “premium”. It is important to understand that, in cases in which a former spouse is awarded a percentage of a military retiree’s retired pay, and SBP coverage is elected for the former spouse, both former spouses, in effect, pays a portion of the SBP premiums in an amount proportionate to the division of retired pay. This happens automatically because divisions of retired pay are based upon disposable retired pay, which has already been reduced, in part, due to the SBP premium (the premium was “taken off the top” before division).  Please note, this is in distinction from FERS benefits, which allow more flexibility to assigning SBP costs between former spouses.

Private Agreement Between Spouses for Former Spouse to Pay Costs of SBP: Some clients enter into agreements whereby the former spouse must pay the entire cost of the servicemember’s participation in SBP.  In those cases, the arrangement must be between the former spouse and the servicemember, even if DFAS is paying the former spouse her or his share of the retirement benefits directly, because DFAS will not make such an allotment.  The former spouse, in such a case, would need to reimburse the servicemember by some other means.

What Is the Out of Pocket Cost for SBP:  The SBP premiums for spouse coverage are:

(1) 6.5% of your chosen base amount, or if less (for all servicemembers who joined the armed services on or after March 1, 1990 and those retiring for length of duty only (not disability), or

(2) 2.5% of the first $595.00 of your elected base amount (referred to hereafter as the “threshold amount”), plus 10% of the remaining base amount.

The threshold amount was $595.00 as of January 1, 2004. The threshold amount will increase at the same time and by the same percentage as future active duty basic pay.

New Spouses Not Entitled to Any SBP if Former Spouse is Already Named: Military retirement benefits, unlike many private pensions and FERS, only allow for one survivor, i.e. if the servicemember remarries, and the former spouse is named to receive benefits under the SBP, the servicemember’s new spouse will receive $0.00 upon the death of the servicemember.  (This is in distinction from Federal Government Employees’ FERS and CSRS retirement benefits that allow for assignment of partial benefits to an ex and a current spouse.) It is important to remember that, with military SBP, there are time limits on notifying DFAS of the SBP:  An election usually must be filed with the appropriate Service Secretary within 1 year of the date that the parties’ divorce decree is entered, but this is not necessarily the case if the SBP order is entered at another time. Also, you will need to check with your branch and other appropriate offices for up to date information, as is always the case with military divorces.

Remarriage of Former Spouse:  If your surviving spouse remarries before age 55, all SBP payments will stop and the servicemember will no long have that premium deducted from his monthly payment amount.  However, marriage by the former spouse after age 55 has no effect.  Also, if the surviving former spouse’s new marriage ends in divorce or death of the new spouse, SBP payments may be reinstated.

COLA: Most court orders that direct a portion of a servicemember’s retirement benefits to go to his or her former spouse specify that a percentage of the servicemembers disposable retired pay be paid out to the former spouse.  When that is the case, any cost of living adjustment (COLAs) will be automatically included in the former spouse’s monthly annuity award.  It is only with a fixed dollar amount award (not as common) of retirement that a former spouse is not entitled to the COLAs.  (In 2013, the COLA was 1.7% for those servicemembers and retirees who did not opt for REDUX.  Servicemembers who availed themselves of the $30,000 REDUX bonus received a COLA of .7%).

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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Are Divorce Statistics All Wrong?

May 7, 2013

It is a common belief, in today’s society, that half of all marriages end in divorce.  Lately, however, this statistic has come under fire.  Where does this widely publicized 50% divorce rate come from?  Is it really accurate?  Jennifer Baker, director of the Marriage and Family Therapy programs at Forest Institute, says “It’s a very murky statistic.” Two major complications that may result in misleading divorce rates are:

  • not all states collect marital data; and
  • the methods and sources used for gathering the raw data vary widely.

Both of these issues have the potential to drastically impact the numbers, therefore producing an inaccurate divorce rate.

Tara Parker-Pope, a New York Times reporter and author of For Better, sets out to debunk the 50% divorce statistic.  One statistical problem, pointed out by Ms. Parker-Pope, is that the “divorce count” is often based on the total population (per capita) as the base number.  However, this completely distorts the divorce rate since the number of married people is not the same as the total population (it is, of course, less since many people are simply not married nor have they ever been married).   Sadly, too, Parker-Pope argues that “all the talk about grim marriage stats becomes a self-fulfilling prophecy” (quote from the Times Magazine article “Are Marriage Statistics Divorced from Reality” (5/24/10)) and, when everyone else is doing it (or, at least, it appears that everyone else is doing it based on the statistics provided) it seems like a normal life passage, when it is actually a very, very big deal and not, according to many people, “normal” at all.

Because of the often inaccurate and misleading divorce statistics provided by various government and private entities, some divorce professionals advocate for researchers to try to identify trends, versus trying to pinpoint actual percentages. Just as the traditional views of marriage and relationships are continually shifting, due to changes in society, culture, and economics, discernable trends in marriage, cohabitation, families, and divorce may very well be a closer depiction of reality than the 50% divorce statistic.

divorce-statsFor example, many young people today do not find marriage to be the prerequisite to having a family as did proceeding generations. How is it, one can wonder, that the divorce statistic stay at the same, steady 50%, when so many people are opting out of marriage altogether?  Further, Ms. Parker-Pope, upon scholarly observation trends in American family life, believes that “marital stability appears to be improving each decade.” (quote from the Times Magazine interview of Tara Parker-Pope “Are Marriage Statistics Divorced from Reality” (5/24/10)) Instead, she believes that “the 50% stat is a myth that persists because it’s something of a political Swiss Army knife, handy for any number of agendas.” (quote from the Times Magazine article “Are Marriage Statistics Divorced from Reality” (5/24/10))

Posted by Shelly Barry, Mediation Intern (George Mason University, Spring 2012)

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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Providing for Custody & Visitation With Teens

April 30, 2013

Raising teens is never easy, but it becomes even more complicated when they are involved in a two-household family. Teens are going through a lot of changes, and having to navigate two completely separate households often adds stress to their already too-busy and somewhat volatile emotional lives. Teenagers usually prefer that their families blend into the background while they do their teen-thing.  But, when a kid is going back and forth between houses, due to a divorce, the family and “family time” often becomes a focal point of the teenager’s life (like it or not!). Of course, that is not all bad.  There are plenty of people who will tell you that their divorce is what made them finally realize the fleeting nature of their children’s youth and was, in fact, the impetus for ensuring that they spent time with their children before it got to be too late.

                  It is important for parents of teenagers to remember that, just because your child doesn’t see you much — due to everyone’s busyness — that doesn’t mean that your teenager will want to hang out with you when he or she does not have a scheduled activity.  Teenagers want to be with their friends, usually, and any parent who makes it a point of getting in the way of that for “visitation time”, might be asking for trouble. The older they get, the tougher it is to maintain a regular schedule of time with your kids – but they are always happy to have you drive . . . and pay! But, it is often those drives, after all, when you will at least get to know your children’s friends and that is, many parents find, a delight!  Try and keep a balance between making sure you and your children spend time together and allowing your teen to have a social life that is not over-prescribed by your and your ex’s divorce situation.

                arguing-family  John Hartson, PhD. And Brenda Payne, PhD recommend, in their book Creating Effective Parenting Plans: A Developmental  Approach for Lawyers and Divorce Professionals, that people working on parenting plans for families with teenagers be mindful of teenagers’ differing needs at the various stages of adolescence.  For example, with 12-13 year olds, Hartson and Payne note that there are many physiological changes going on during this time, in addition to the big move-up to middle school.  Often times, they assert, it is best to leave the custodial care schedule as it is and not add any more changes to the mix, unless there are serious problems.

                  For older teens, those entering high school and later, it is often wise to include them in discussions regarding where they will be/want to be spending their time.  At this point, for many teenagers, it tends to be more about “where” than about “with whom” they will be spending time.   For example, some teens express strong desires to spend greater amounts of time in one home over the other, not because they desire to be with one parent more than the other, but their choice is often greatly influenced by which home has greater proximity to friends, activities, and the convenience of having all of their stuff in one spot.

                  Remember that teens, like children of all ages, are still watching everything that you do.  You are still their role model in many ways, as is their other parent.  They need to see you and your ex function in everyday life so that they can learn what is important in your family culture, how you “get it all done”, what are your priorities, how your values effect your choices, etc.  This is your last shot at parenting, for the most part, and you want to try and get it right.  That will mean that you have to find a way to both spend time with your teenager, while keeping a healthy awareness of his or her need for some level of independence.

                  Your teenager will be gone before you know it.  Enjoy your time together.  Listen to your teen.  Try and accommodate his or her needs and desires, but don’t cave in to every whim. Watch for classic divorce manipulation between you and your ex.  Let your teenager know how much you love him or her every day.  Cross your fingers . . . and be confident that you are doing the best that you can, which is all anyone can really ask of a mom and a dad.

Posted by Kristina Duncan Hoeges, Freelance Paralegal and Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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Posted by Graine Mediation

The IRS’s “Child Contingency Rule” Could Cost you a Bundle of Money If You Fail to Plan Appropriately

April 23, 2013

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Q: What is the IRS’s “Child Contingency Rule”?

A: The IRS’s Child Contingency Rule states that when alimony payments end on or around the same time as a child-related event (e.g. graduating from high school) all alimony payments leading up to that child-related event may be reclassified, by the IRS, as child (not spousal) support.  Further, the Child Contingency Rule states that any tax benefits received by the payer of support, and any taxes paid by the receiver of alimony (which is later reclassified as child support) are to be returned – the payer will owe the IRS money and the receiver will receive a refund of taxes previously paid on alimony received.

Q: What triggers the Child Contingency Rule?

A: Support payments that would otherwise qualify as alimony may be treated as child support, by the IRS, to the extent that the payment is reduced or eliminated either:

  • On the happening of a contingency relating to your child (e.g., graduation from high school, turning 18); or
  • At a time that can be clearly associated with the contingency.

However, you can overcome those presumptions by showing that the determination of the time at which the payments are to be reduced/eliminated was determined independently of any contingencies relating to your children. In other words, that the timing was mere coincidence. For example, if you can show that the period of alimony payments is customary in your local jurisdiction (such as the “rule of thumb” in Northern Virginia that the alimony duration is often equal to one-half the length of the marriage) you may be able to overcome the presumption and, therefore, overcome the harsh IRS penalties for tying alimony to a child-related event.

Q: What sorts of other “child-related” events is the IRS looking for?

A:  Per the IRS, a contingency relates to your child if it depends on any event relating to that child. It does not matter whether the event is certain or likely to occur. Events relating to your child include the child’s:

  • Reaching a specified age or income level;
  • Graduating high school;
  • Becoming employed;
  • Dying;
  • Leaving the household;
  • Leaving school; or
  • Marrying.

 

Q: What are the time parameters for the Child Contingency Rule?

A: The IRS may automatically reclassify your alimony payments as child support payments, pursuant to the Child Contingency Rule, in the following situations

  • The payments are to be reduced not more than 6 months before or after the date the child will reach 18, 21, or local age of majority (18, in Virginia)
  • The payments are to be reduced on two or more occasions (only in families where there are 2 or more children) that occur not more than 1 year before or after a different one of your children reaches a certain age from 18 to 24 (the IRS defines “a certain age” as the age of your first child at the time of your first stepped down reduction in alimony). This certain age must be the same for each child, but need not be a whole number of years.

Much of the information for this article comes from IRS Publication 504, online

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Leave a Comment » | affordable divorce, divorce, divorce finance | Permalink
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Alimony Recapture Rule

April 16, 2013
Tug o' war

Tug o’ war

“Alimony Recapture” is a tricky and often misunderstood IRS rule (Internal Revenue Code (IRC) §71) that is designed to prevent front loading of alimony payments which, the IRS presumes, are actually a property distribution “disguised” as alimony to save on taxes due. Of course, not everyone who is vulnerable to the recapture rule is trying to disguise a distribution of property as alimony, but the rule is supposed to be applied uniformly, regardless of motivation.

Alimony Recapture applies, in certain cases, where there is an award of alimony[1] from one ex-spouse to the other ex-spouse, that decreases in amount during the first three post separation years[2].  “Recapture” refers to the IRS’s right to force the payer of alimony to pay back, to the IRS, all tax benefits received as a result of alimony payments made to his or her former spouse during those first three years.  (After the third full year, the concept of recapture becomes irrelevant.)

This would be, for many ex-spouses, a tax tragedy.  Recapture aside, alimony is a very generous tax deduction that is almost always of primary importance when negotiating a divorce settlement wherein support of an ex-spouse is appropriate and feasible.  Specifically, 100% of the alimony paid is allowed to be deducted from the payer’s gross income, thereby reducing his adjusted gross (taxable) income, dollar-for-dollar, in the amount of the alimony paid for that year. The ex-spouse who receives alimony, however, must pay taxes (also dollar for dollar) on those alimony payments received.

The rules of recapture are not overly complicated.  They are, however, like so many IRS promulgated dictums, befuddling for most people because they are written in such a convoluted manner and sound, pretty much, like gobbledygook. In a nutshell, the tax benefits of paying alimony will be recaptured by the IRS if, in the 3rd year after your alimony payments commence, you pay greater than $15,000 less in alimony than you paid in the 2nd year. Or, if, during the 2nd and 3rd years, you pay  “significantly less” in alimony than you paid in the 1st year. The term “significantly less” is the IRS’s word, not mine, and it is not defined in the statute.  Luckily, the IRS has provided a recapture worksheet that makes trying to figure out what they mean by “significant” a nullity.  In other words, if you run your numbers through the worksheet and they show that you fall under the recapture rule, you do.  Period.  (“Significant” of not!)

The worksheet and further explanation of the recapture rule can be found in IRS Publication 504 Divorced and Separated Individuals.  That publication forth a nice example that most people find helpful when trying to understand the concept of recapture.  Below is the IRS’s example and their worksheet, straight from Pub 504:

IRS Example: You pay your former spouse $50,000 alimony the first year, $39,000 the second year, and $28,000 the third year. Using these numbers, you report $1,500 as income on your Individual Income Tax Return (Form 1040, line 11). Your former spouse, on the other hand, reports on her Income Tax Return (Form 1040 line 31a), a $1,500 deduction. See worksheet, below:

Worksheet 1. Recapture of Alimony—Illustrated

Note. Do not enter less than -0- on any line.

1.

 Alimony paid in 2nd year

1.

$39,000

2.

 Alimony paid in 3rd year

2.

28,000

3.

 Floor

3.

$15,000

4.

 Add lines 2 and 3

4.

43,000

5.

 Subtract line 4 from line 1

5.

-0-

6.

 Alimony paid in 1st year

6.

50,000

7.

 Adjusted alimony paid in 2nd year
(line 1 minus line 5)

7.

39,000

8.

 Alimony paid in 3rd year

8.

28,000

9.

 Add lines 7 and 8

9.

67,000

10.

 Divide line 9 by 2

10.

33,500

11.

 Floor

11.

$15,000

12.

 Add lines 10 and 11

12.

48,500

13.

 Subtract line 12 from line 6

13.

1,500

14.

 Recaptured alimony. Add lines 5 and 13

*14.

1,500
* If you deducted alimony paid, report this amount as income on Form 1040, line 11.
If you reported alimony received, deduct this amount on Form 1040, line 31a.

So, what facts and circumstances usully exactly triggers the IRS’s Alimony Recapture rule? Typically, it is triggered by a reduction or termination of alimony payments caused by one or more of the following:

  1. a.    A lump sump payment scenario;
  2. b.    A settlement agreement/divorce decree in which alimony payments are decreased over that first three year post separation period;
  3. c.    A settlement agreement/divorce decree that allows for alimony payments to cease prior to the end of the first three years post separation;
  4. d.    A change made to your separation or divorce agreement, by the court or by agreement, due to the recipient’s decreased need, or the payer’s decreased ability to pay, that ignores the recapture rule; or
  5. e.    The payer’s failure to make alimony payments on time, or at all.

You will note that, even if you do everything “right”, for purposes of legal enforceability (i.e., you consult an attorney, who puts the agreed-upon changes in writing, and you execute the document with the same formality as the original agreement, etc.), you still cannot assume that you will be free from the punishing effects of the Alimony Recapture Rule. It’s the old “knew or should have known” scenario.

Are there exceptions?  Yes.  There is no Alimony Recapture if:

  • you made alimony payments over the three year post- separation period that varied because they were a fixed part of your income from a business, property, employment-compensation, or self-employment compensation[3]; or
  • your alimony payments decreased as a result of your ex-spouse’s death; or
  • because the spouse receiving alimony got remarried before the end of the 3rd year post separation period.

 

Caveat: There are rare cases when a party might still be better off working to get his or her alimony payments reduced and taking the lumps from the IRS in terms of recapture.  Such a decision will depend on your individual financial circumstances. Run the numbers, do the worksheet, and talk with you CPA and divorce attorney before making such a decision.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

[1] The Virginia Divorce Code refers to alimony as “spousal support”.  For this article, however, I will be referring to monetary support payments (that are not child support), from one ex spouse to the other, as “alimony” because that is the term used by the IRS.

[2] The three-year period, in which the payer is vulnerable to the recapture rule, begins the first calendar year during which he or she makes an alimony payment under a divorce decree, order for separate maintenance, or written and signed separation agreement, as long as all the other criteria for alimony are met. The 2nd and 3rd years are the next two calendar years, whether or not any payments are made during those years.  Please know that alimony payments made under a temporary support order do not count as part of the 3 years for purposes of alimony recapture.

[3] Alimony payments are sometimes set to correlate with a party’s business earnings, rents received, etc. such as in a case where the parties agree that the former spouse will receive X% of the payer’s gross or net profits from his or her business/real estate income earned for a set period of time post divorce. 

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