Divorce Rates at Lowest Level; but So Are Marriages

December 8, 2015

Though it may seem that everyone you know is getting a divorce, the divorce rate has actually declined by 23% since 1970!scissors

This is according to a new report published by the National Center for Family and Marriage Research Family Profile (NCFMR), Divorce Rate in the U.S.: Geographic Variation, 2014 (FP-15-18), issued by Bowling Green State University in Ohio. After peaking in 1979 (22.8 divorces per 1,000 married women), the divorce rate declined until 2000 when it began to rise again. The divorce rate fluctuated between 2005 and 2010, but since 2010, it dropped steadily. In 2014, 17.6 women divorced per 1,000 married women – a 23% drop since 1970. (Data is based on statistics from 1970-2000, National Center for Health Statistics; 2008-2014, U.S. Census Bureau, American Community Survey, 1-yr est.) http://www.bgsu.edu/ncfmr/resources/data/family-profiles/eickmeyer-divorce-rate-us-geo-2014-fp-15-18.html

Married couples do not get along better than they used to . . . couples simply skip the marriage step and head right to parenthood.

If there is no marriage, of course, there does not need to be a divorce. When asked about the declining divorce rate, Wendy D. Manning, co-director of the NCFMR, clarified that “I think it is important to consider that the marriage rate is also declining so there are fewer men and women marrying.” https://www.bgsu.edu/ncfmr.html

However, just because a mom and dad do not get married, does not mean that they do not have a relationship, live together, parent together and, from the child’s perspective, enjoy a family life together just like their married counterparts.

“Living together” can have devastating financial consequences to families when mom and dad break up.

From my perspective as a family mediator, parental break-ups – without the “benefit” of divorce —  mean that the children born of those relationships will suffer through the same repercussions as do children whose divorcing parents were married – but without many of the financial protections that are built into the divorce process.  

Often times, parents have spent many years building a life together.  However, unless they are married, there will be very little financial protection for the economic life that they built as a couple.  If both parents are working and make a good living, this is not always the end of the world. But, in those cases where the mom or dad is a stay-at-home parent, such a break-up can be financially devastating to that parent and child.

What is stopping couples from getting married today?

From everything that I have seen over the 14 years that I have worked with countless families in my practice as a divorce mediator, divorce lawyer and family court hearing officer, unless both parties have at least a bachelor’s degree and some money in the bank—or at least access to money—couples are often choosing to not get married in the first place. The traditional “family order” is being reversed at an increasing rate: Kids are being born first; mom and dad may or may not decide to get married in the future; and mom and dad may or may not live together, without tying the knot.  This has become the norm.

Top 3 Reasons Couples Hold Off the Wedding Plans:

  1. Couples are waiting to have enough money in the bank to have their “dream ceremony.”
  2. Couples are waiting until at least one of them has his or her career on track.
  3. Couples have lived through their own parents’ awful divorce—and it scared them to death.

Are miserable married couples staying together in greater numbers than they used to?

Though the statistics are not completely clear, it seems that couples are trying harder to stay together.  In my mediation practice, the vast majority of clients have done of everything in their power to stay together before they make the decision to divorce.

Top 3 Reasons Couples Avoid Divorce:

  1. These days, many married people have already been through a divorce – their parents’ divorce. They do not want to repeat the pain.
  2. Married couples with children (as opposed to parents who are not married) tend have higher levels of education, higher incomes, are older when they have children, and might just be better prepared to weather the storms of marriage and kids.
  3. Divorce is very expensive.

It is not only expensive to get divorced, but it is incredibly costly to maintain two independent households on less money than the couple originally had when they were maintaining only one.   Most couples know this and, for the most part, would rather see their hard earned money and savings be used for their children and building a new life for themselves, rather than disappearing into the pockets of their divorce lawyers.

If divorce is impossible to avoid, settling with a mediator is a much less expensive and emotionally damaging experience than litigating with a divorce lawyer.  Mediation is also an excellent settlement choice for unmarried parents who are working on custody and child support issues.  

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.


How Does Mediation Save Divorcing Couples Money?

November 23, 2015

It seems that everything is getting more expensive these days, and divorce is no exception. Luckily, mediation can be a good way to save money during the divorce process. Here are some simple ways mediation can help:

  • No “Surprise” Billing. Most work is done in the mediation room and it is easy to keep track of what the divorce settlement process is actually costing.  Mediators don’t nickel and dime their clients to death.
  • One Mediator, Not Two Attorneys. When both parties have their own attorney, the $300-$500 per hour fees rack up quickly, especially when multiplied by two attorneys (as opposed to only one mediator at an often lower hourly fee).
  • Get to the Point. Mediation is less strategically oriented than litigation.  This allows clients to address their and their children’s real needs faster and with a focus on mutual agreement versus winning the fight.
  • Sensible Information Gathering Process. There is no formal “discovery” in mediation.  Discovery is the court-supervised and procedurally complex method that attorneys use to gather information in a divorce case.  Keeping the information gathering process to its essential elements saves clients thousands of dollars that they will need to run two households where there once was only one.
  • Focus on Present and Future, Not Past.  The focus in mediation is on helping the parties to find common ground and mutual agreement that will allow them to start their and their children’s new lives in as good a position as possible considering the circumstances.  Past behaviors and transgressions are usually minimized, unless they directly impact the present or future.  This is the opposite of litigation, where past wrongs and transgressions are often the focus of the fight itself.

save-money1Don’t let tight finances keep you from moving forward with a divorce when it’s the best decision for you and your family. Speak to a mediator and see how they can help.

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.


Nesting

September 17, 2013

In recent years, parents seeking a divorce have been trying out a new and unconventional living arrangement to maintain what some of them feel is a higher level of stability for their children. This arrangement is known as “nesting”. In most cases, nesting involves the parents rotating in and out of the family residence, while the children remain in the family home full-time.nesting

            Parents may decide to nest for a few different reasons. Some feel that it is in the best interest of their children to keep them in a familiar environment in both home and school. Also, some parents have chosen nesting because the current market makes it economically unattractive to sell the family home. Nesting allows them to “buy time” without either parent moving out full-time.

            Nesting has the potential for creating less disruption in the children’s routines than traditional custody plans that have the children going and back and forth between their parents’ homes.  However, this means that both parents have to travel back and forth between their two homes, which has its own set of stresses.

            Nesting can also be expensive.  If there are no acceptable, free or inexpensive living arrangements for the parents during their “off time” (time not in the family home with the children), the nesting family may end up paying a mortgage and two rents. To avoid these costs, some nesting arrangements involve one parent living permanently in the family home while the other spends occasional nights in a guest bedroom or on the couch.

            That type of nesting, however, has its drawbacks.  First, it can be confusing to children.  Second, there are legal and tax issues with this second type of nesting, such as your state’s definition of “living separate and apart” for purposes of meeting the criteria to get divorced, and the fact that the IRS will not allow alimony payments to deductible for divorced former spouses if they are living under the same roof.

            When considering nesting, parents will need to decide what is in the best interest of the family in both the immediate future as well as long term. While it is good to maintain a familiar environment for children, nesting is often too expensive, too stressful or not a good idea from a legal or tax standpoint.

            Graine Mediation would love to hear from successful nesting parents—leave a comment!

Posted by Zia Meyer, Mediation Assistant

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.

Resource

Sklarew, Renee. “Bridging the Gap Divorced Parents Share Space”.


Marital versus Nonmarital Property: The Law and Application in a Mediated Divorce Settlement

June 25, 2013

scales

In mediation, I work with parties to help them classify their property as marital, nonmarital or hybrid (some of each) property.  This is important because, in Virginia, judges are only allowed to order the division and distribution of marital property (and that portion of hybrid property that is marital).  Nonmarital property, on the other hand, stays with the party who owns it  — at least that is the rule when a divorce case goes to the judge.

In mediation, parties may or may not choose to follow these rules.  Unlike judges, parties who settle without court intervention are free to divide and distribute their property however they see fit. In my mediations, however, I make sure that the parties at least understand the rules before they decide on another way of doing things.  Just like a good English teacher will tell you: “It’s best to know the rules before you break them!”  This is all part of the mediator’s role in ensuring that the parties make informed and thoughtful decisions based on both their unique set of circumstances and a comparison of how they might fare in litigation.

The type of property that is classified, divided and distributed, upon divorce, includes everything – even the kitchen sink . . . and the dog.  The most common types of property that are the subject of a divorce settlement include:

  • Cash assets (bank accounts, investment accounts)
  • Real estate
  • Automobiles, motorcycles & boats
  • Retirement accounts, funds & benefits
  • Deferred compensation plans, profit sharing plans, stock options & restricted stock
  • Artwork, antiques & collectibles
  • Furniture & other tangible personal property
  • Life insurance policies
  • Closely held business & partnership interests

Property that is classified as marital includes all property acquired by the parties during the marriage. In Virginia, “during the marriage” is defined as: The date of  marriage through the date of separation (the date upon which the parties began living separate and apart, and at which time at least one of the parties intended the separation to be permanent). Please note, however, that the durational criteria, in many other jurisdictions outside of Virginia,  for classifying property as “marital”, extends to the date of divorce (not just separation). It is not uncommon, therefore, for mediation client to choose the date of divorce, as is done so many places outside of Virginia, as the “dividing line” at which property acquired becomes nonmarital.

Property that is classified as nonmarital consists, for the most part, of property acquired by either party:

a)    prior to the marriage;

b)    acquired by gift or inheritance from a third party to one of the spouses, individually (not as a gift to the couple); or

c)    after the date of separation.

            When determining whether a particular set of rules, with regard to the classification, division, and distribution of property, upon divorce, should or should not be applied in a divorce case, most parties will want to consider the following:

  • the totality of their financial circumstances;
  • the history of their family’s finances and any understandings that the parties may have had (implicitly, by action/inaction, and explicitly);
  • the potential effect that differing settlement decisions and proposals may have on other areas of their case (e.g. creating “bad will”, creating “good will”, feeding agitation, encouraging generosity in other areas, etc);
  • the parties’ relative earning power (even though this is not one of the statutory factors to necessarily be considered by a court[1]);
  • emotional attachment to property, such as a closely held business or valuable artwork and antiques (this is usually only up for consideration when there is a fair exchange for other property for which there is not such a strong emotional attachment)

Below are more rules, by way of example, that demonstrate how Virginia courts go about classifying property as marital, nonmarital, or hybrid property.

EXAMPLE #1: Husband has $50,000, all earned prior to the marriage, in an investment account in his name.  When he marries Wife, the two of them open up a joint bank account which they agree is to be the start of their “marital nest egg”, but there is no solid proof of this oral agreement.  Husband then removes $25,000 of his premarital money, from his individual investment account, and puts it into the new joint bank account.

            RESULT:  The court would probably consider the $25,000 in the joint bank account to be marital property by virtue of the doctrine of “transmutation”.  However, to the extent that $25,000 is retraceable to it’s origins as non marital property, and Husband can prove by a preponderance of the evidence that is was not a gift to the marriage (not as difficult, in Virginia, as one might expect), that $25,000 may end up being returned to Husband as his nonmarital property.  (VA Code §20-107.3 (A)(3)(f) & (g) & (h)

EXAMPLE #2:  Husband and Wife own a joint money market account, opened during the marriage, into which they each contribute money on a monthly basis. Wife inherits, in her own name, $10,000 (inherited money is nonmarital).  At that time, the balance in the parties’ joint money market account is $5,000.  Wife deposits her $10,000 inheritance into the joint money market, thereby commingling (a legal term) her nonmarital property with her and Husband’s marital property.

RESULT: The court would probably consider all $15,000 in the joint money market account to be marital property by virtue of the doctrine of “transmutation”.  However, just like in Example #1, above, to the extent that the $10,000 inheritance is retraceable to it’s origins as non marital property, and Wife can prove by a preponderance of the evidence that is was not a gift to the marriage that $10,000 may end up being returned to Wife as her nonmarital property.  (VA Code §20-107.3 (A)(3)).

EXAMPLE #3:  Wife owns a home, in her name alone, prior to the parties’ marriage.  After the parties are married, Husband puts in a new bathroom, with his own hands, a new tile floor in the kitchen, and wallpapers the large family room and foyer.  The house remains titled in Wife’s name.  The parties get a divorce and the husband seeks a portion of the value of the wife’s home.  Husband’s theory is that the home (or at least a percentage of the home) has been transmuted to marital property by virtue of his labor.

            RESULT:  The court may or may not consider Husband’s theory to be be a winning argument depending on three factors:  (1) Did the husband’s personal efforts contribute, directly, to an increase in value of the home?; (2) Were the husband’s personal efforts significant; and (3) Did the husband’s efforts result in substantial appreciation of the home?  (VA Code §20-107.3(A)(1)).  This area of the law is incredibly subjective and very expensive to litigate.  This is where “it depends . . . “ is an attorney’s favorite phrase.

EXAMPLE #4:  Husband has an online stock account when the parties get married, with an approximate value of $100,000 on their wedding day.  Husband spends, from that day forward, during their marriage, approximately 2 hours per week managing his stock portfolio.  It remains titled in his individual name.  No other money is put into that account during the marriage.  All assets traded emanate from Husband’s original (nonmarital) assets.  Over the course of the marriage, the $100,000 grows to $300,000.  The wife claims, in divorce court that, since the increase in value ($200,000) occurred during the marriage, that increase is marital property.

RESULT:  Once again, it depends. The increase in value of nonmarital property, during the marriage, is not usually considered marital property.  However, if the court finds the increase from $100,000 to be substantial (which it probably would) and find the husband’s 2 hours per week managing the stock portfolio to have been a significant amount of effort (which it may or may not), it may consider all $200,000 as marital funds, to be divided and distributed upon divorce.  (VA Code §20-107.3(A)(1)-(3))

EXAMPLE #5:  Husband and Wife marry while husband is on active duty in the U.S. Military.  Husband came into the marriage with a piece of land that he purchased and fully paid for years before he even met Wife.  Husband receives news that he is being deployed to a very dangerous area of the world and he is a bit nervous because he does not have a will and he wants to be sure that there is no probate trouble in case he should die while overseas.  In an effort to protect Wife’s financial interests, he quickly adds her name to the deed and goes off to battle.  Husband doesn’t die, but instead is greeted by Wife upon his return, with divorce papers.  Wife says that the husband put the land into joint tenancy because he loved her and wanted to share everything he had with her, just as they had done with everything else that they owned. Is that jointly titled land now considered marital property?

RESULT:  Probably not, if Husband can prove that he put the land into joint tenancy for estate planning purposes only and that he did not intend to make a gift to the marriage of that land.  It would be a matter of proof and a judge’s final determination as to which party was telling the truth.  (VA Code §20-107.3(A)(1)-(3))/

As you can see, the law is very subjective in this area.  This is why clients, in mediation, often do just as good a job at determining whether property should be classified as marital, nonmarital or hybrid property, as do judges.  They know their own history and what was said, implied, reasoned, and what makes sense considering their family financial history and culture.  They know each other and they know what their hopes and dreams are – or at least what they were before the divorce —  for their children and for each other’s future as they get older.  Attorneys’ fees can sky rocket in this area of the law, as you can imagine, because “donative intent” necessary to show when, in fact, a contribution of nonmarital property to marital property is present is a very tricky area of the law.  It involves defining phrases, such as “substantial effort”, and “significant”, which are hardly quantifiable and, instead, rely on subjective standards and skilled gamesmanship in the courtroom.


[1] For a complete listing of the statutory factors that all Virginia judges must consider when dividing and distributing property upon divorce, see my previous blog article What Virginia Divorce Courts Consider When Dividing Property & Debt (10/13/12))

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.


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

April 23, 2013

calc

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.


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 IndividualsThat 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. 


“Happily Ever, After We Split” –An Uplifting Article About Divorce? A Definite Must-Read.

August 5, 2012

Boy with parents.

       Divorce can be scary. Especially, when contemplating whether or not to take that leap. The best analogy I heard, when faced with that very decision, is this: it’s like a cat that falls from a window, from way up high. At first, it arches its back and scrunches its face, adjusting to the pain and taking an inventory of the damage. But then, like a cat that always lands on its feet, after the initial impact, most people look around and realize: I am going to be just fine; there’s a big new world all around me, just waiting to be what I make of it.

       I like that. A lot. To be honest, hearing that very analogy was one of the final pieces I needed before taking that leap on my own. And now, nearly two years later, there’s no doubt that, for my ex-husband and me, divorce was the right decision. In fact, my ex, and son’s father, is the very person who clipped and mailed to me the article I want to share with you.

       Only now, post-divorce, are my ex and I able to enjoy together (with our son, of course), long lunches filled with laughter, and exciting road trips to the National Aquarium – just like back when we were dating. Well, kind of. The big difference, is that now we know how our story as a couple ends. Still, we both couldn’t be happier with our current “relationship” (as exes and co-parents).

       Don’t get me wrong. A) I would certainly never advocate for divorce…at least not indiscriminately. Anyone who’s been through one, knows the process can feel a whole lot like Hell on Earth.  And, B) without a doubt, I’m a true romantic, a true believer. I wish to holy heaven that my union of matrimony had turned out to be the real deal: a joyful, enriching companionship, enduring forever and ever. Unfortunately, my marriage most certainly did not. And yet, I sense that my ex and I will nonetheless share an enduring, enriching, and even joyful companionship. It’s just that, it looks absolutely nothing like how I would have planned or expected it.

      Everyone knows our national statistic. The divorce rate hovers somewhere around 50%. The point is, as a society, maybe we need to reevaluate our expectations of marriage. And, until we stop getting divorced with such frequency, maybe we should consider learning how to divorce with a whole lot more civility.

       Wendy Paris, the author of The New York Times article, “Happily Ever, After We Split” tells a wonderful anecdote with commentary, exactly to that effect. Enjoy!

Posted by Maggie Fox Dierker, Esq.


%d bloggers like this: