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Divorce Resources for Women

divorce faq

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  • Alimony/Spousal Support
    There are no questions in this category
    Child Custody
  • My husband is fighting for full custody of our children. He is saying I am an unfit mother, which is a lie. I’ve been the main caregiver all along. What can I do?
    •  If you don’t have an attorney already, get one.
    • Start documenting everything you do on a daily basis for your children. The idea here is to prove that you are the main caregiver and that you are able to be a single parent going forward. Any journals, photos, calendar details, etc. may be admissible in court and help make your case.
    • School records will most likely need to be subpoenaed by the court.
    • Find ways to show that you are involved in your community via church, neighbors, etc. Testimonials are a great way to do this.
  • Is it possible to get sole legal custody of my child(ren)?

    This FAQ is usually submitted by the mother, particularly of very young children, because she has been their main caregiver and wants to continue to be able to make all major decisions for them. The legal custody decision is mainly based on your individual state’s laws and precedents, as well as the judge assigned to your case. Typically, joint legal custody is the most common court order, however, if you can show that the other parent is unfit or difficult to co-parent with, then the judge may not order joint legal custody.

  • Child Support
  • My ex isn’t paying me court-ordered child support. How can I get him to pay me?

    If he is not paying child support, then he is in direct violation of a court order. You should go back to the court and file paperwork to make them aware that he is in violation and ask them to enforce the order. Check your local family court’s website for online forms. Also, let them know that you want the state to handle collection. This will make it easier for you, because they will be able to more easily find sources of payment and enforce payment (e.g., garnishing wages, settlements).  Note that visitation is a separate issue from child support. If your ex is not exercising his right to visitation, he still must pay any court-ordered child support to you. On the other side of that, you cannot deny your ex visitation rights because he isn’t paying the child support.

  • Will the court still order child support if we have joint physical custody?

    Generally, the answer is yes. The key factors here are time and money. With regard to time, typically the courts do not like to order a 50/50 arrangement due to it being harder on the child(ren), so the parent who has the least amount of time with the child(ren) will usually be ordered to pay support to the other parent, unless the other factor - money - is an issue.  Even if there were to be a true 50/50 split in physical custody, the parent who has the greater means will most likely still be ordered to pay child support. Be sure to consult a local attorney, as the answer will vary depending on the state, the court, and the judge.

  • My ex is in arrears on his child support payments. Can the IRS take his tax refund?

    If your ex is due a tax refund, then, yes, the IRS can seize his refund for child support owed. However, if your ex owes taxes upon filing his tax return, then there is no refund to be seized. Typically, the domestic relations agency in your state serves as a collection agency for child support, and as such, they are responsible for notifying the IRS if your ex is in arrears. Contact them to make sure they have done so. If your state agency is NOT helping you with collecting child support payments, you should petition the court to arrange for your state agency to begin collecting child support on your behalf.

  • My ex and I get along very well and I don't anticipate any problems with him making the child support payments. Does the state have to handle the child support payments?

    It depends on your state. Some require that they handle it and others do not. Have your attorney check into this for you. It is generally recommended that you have the state collect the payments for you, as this will provide a way to enforce the child support order if your ex falls behind.

  • Financial
  • Do I have to wait until my ex retires before I can get part of his 401(k)?

    First of all, you will need an attorney to prepare a Qualified Domestic Relations Order (QDRO) which meets the 401(k) plan requirements. Once you have that in place, you can then have your share rolled over to an Individual Retirement Account (IRA) in your name. You will then have to follow the IRS rules regarding distributions from IRAs.

     

  • Can my husband and I file a joint tax return if we are separated?

    As long as your divorce was not finalized as of December 31 of the tax year in question, you have the choice of filing "Married filing jointly" or "Married filing separately" for that tax year. Usually there is an advantage to filing jointly, as opposed to separately, but be sure to check with a tax professional to determine whether this is the case for you.

  • If I'm given the house as part of the divorce agreement and then sell it for more than the mortgage due, do I have to give my ex any of the money?

    This depends on what your divorce decree states.  If you were given complete ownership of the home, then you would keep all of the proceeds.  If you both own the home, then you would give your ex his ownership percentage of the proceeds.

  • What if we can't agree on who gets what specific items in the house?

    You should really try to work this out with your ex, because ultimately it will come down to your lawyers getting involved, which means you would pay their hourly fee to help both of you resolve this.  Depending on the value of the item, does it make sense to pay $350 per hour (or whatever your attorney charges) to have them hold you and your ex's hands and walk you through this?  If so, then go for it.  If not, then do your best to work it out between the two of you.

    A judge would likely recommend mediation and/or put pressure on your lawyers to get the two of you to come to an agreement.  As a last resort, the judge will make a decision based on how the rest of the assets and debts are being divided and the specifics of the item(s) in dispute (i.e. function, value, history).

  • Who gets to claim the children as dependents on their tax return?

    Start by reviewing your divorce decree.  If there isn't anything mentioned in the divorce decree, then you need to work this out with your ex or go back to court to settle the matter. Typically, if it is not spelled out in the divorce decree, the custodial parent (the parent with whom the child spends the most nights) is the one who has the right to the dependent exemption. If the custodial parent agrees to let the non-custodial parent claim the exemption, then the custodial parent must complete IRS Form 8332.

  • Can getting part of a retirement plan be brought up after the divorce is final?

    Typically, no. However, if you did not have a QDRO (Qualified Domestic Relations Order) as part of your divorce settlement, you may be able to get one if you can prove there was improper disclosure at the time the divorce became final. You will need to consult with your attorney in order to see if your situation justifies reopening the divorce and requesting a QDRO.

    In a situation in which there is an existing QDRO as part of the divorce settlement, but you do not want your ex to receive any of your retirement plan(s), the answer is no, unless your divorce was finalized very recently, in which case you can file an appeal.  Consult with your attorney for clarification specific to your situation.

  • Am I liable for my spouse's debts?

    The general rule is that spouses are not responsible for each other's debts, but there are exceptions. Many states will hold both spouses responsible for a debt incurred by one spouse if the debt constituted a family expense (e.g., child care or groceries). In addition, community property states will hold one spouse responsible for the other's debts because both spouses have equal rights to each other's income. Also, you are both responsible for any debt that you have in both names (e.g., mortgage, home equity loan, credit cards).

  • My husband and I are divorcing. Will I continue to receive Social Security based on his record?

    If you already receive Social Security based on his earnings record, you will continue to receive it as long as you live (or in some cases, until you remarry). If you don't receive Social Security yet, you can apply for a reduced benefit when you turn 62 or wait until your full retirement age if you want to receive an unreduced spousal retirement benefit.

    If you've been divorced for more than two years, you can apply as soon as your ex becomes eligible for benefits, even if he hasn't started receiving them (assuming you are at least 62). However, if you've been divorced for less than two years, you must wait to apply for benefits based on your ex's earnings record until he starts receiving his own benefits.

    You don't have to worry about losing your benefit even if your ex remarries. Benefits for a divorced spouse are calculated separately from those of a current spouse.

  • How do I protect my assets in a divorce?

    If protecting your assets means that you want to keep all of your money, property, and possessions out of your soon-to-be-ex-spouse's hands, you're probably out of luck. Any assets acquired during marriage are considered marital property and must be divided according to state law.

    If you live in a community property state (i.e., California, Texas, or one of eight other states), you and your spouse must split any marital assets equally. However, in all other states, assets must be divided equitably (fairly) rather than equally. Your best protection is to make sure that your interests are represented. Hire an experienced attorney who will help you negotiate a fair settlement.

    Don't shortchange yourself by overlooking hidden assets. For instance, you may know your joint savings account balance and what possessions you must divide, but do you know the balance of your spouse's pension plan? Does your spouse own a prepaid life insurance plan? Does your spouse have retirement funds (e.g., 401(k), IRAs) in his own name? These things will be considered marital assets as well.

    Finally, don't forget about debt. In general, you will be responsible for any debt acquired during the marriage, even if you didn't run up the debt yourself. Make sure that the divorce settlement states who will be responsible for paying off all debts, and close all joint accounts.

  • Insurance
  • I’m covered by my spouse’s employer’s health insurance. Can I keep this health insurance if I get a legal separation?

    You should contact the employer’s HR department and/or the health insurance company to determine how they handle legal separation situations. Some will stop coverage as of your separation date, while others will stop coverage as of your divorce date. Regardless, you will have the right to maintain your coverage through COBRA. Consult an attorney to find out what other options are available in this situation.

  • My husband and I are divorcing. Whose health insurance policy will cover the children?

    As parents, both of you will want to keep the best interests of your children in mind. That means you should compare your health plan with your spouse's health plan and determine which one offers the most comprehensive health coverage and flexibility in choosing healthcare providers.

    Your ultimate decision will also involve other considerations, such as job security. If you and your spouse are eligible to participate in employer-sponsored group health insurance plans, which of you is more likely to remain employed? Expense is probably another issue you will face. If your employer pays a larger portion of the premiums than your spouse's employer pays, your spouse may argue that you should cover the children under your health plan. If you have custody of the children, though, you may find the extra expense too burdensome.

    The issues of child support and child custody are quite relevant when you discuss health insurance coverage of the children. For example, if you have custody of the children, receive child support, and need your spouse to provide health insurance coverage for the children, you may be able to obtain a court order (if necessary) to ensure his compliance. This is known as a qualified medical child support order.

    You will resolve the issue of health coverage--and many other issues--during your divorce settlement negotiations. Because state divorce laws may vary, you should seek advice from a divorce attorney before making any decisions.

  • Legal Process
  • I never signed anything, so how can my divorce be final?

    This varies by state, however, usually you either sign a settlement agreement indicating you are in agreement with the terms set out in the agreement, or you go to court if you cannot reach an agreement, in which case the judge makes the decisions for you. If you were served with papers and never responded nor appeared in court, then more than likely your divorce was considered ‘uncontested’, in which case the court finalized your divorce. You can check with the court clerk in your jurisdiction to see if there is a copy of your finalized divorce on file.

  • How do I get a divorce if I can’t afford an attorney?

    A pretty loaded question, indeed.  The short answer is, it depends. But you want the long answer, right? So, here goes:

    • If you’ve been separated for awhile and both of you just want to ‘get it over with’, you may be able to do an uncontested divorce, which is quick and easy. To find out if you are eligible, go to your local court’s website or office. You’ll also be able to get the necessary forms there if you qualify.
    • If your spouse has hired a ‘big name’ attorney, then you’ll want to find a good attorney willing to take on your spouse’s attorney, even if it means borrowing money from friends, family, a bank, or selling some of your valuables.
    • If you have little or no money, but know that your spouse will fight you on everything, contact your local bar association and ask for a referral for a low-cost attorney or a free or ‘pro bono’ legal services program. You can find local legal services at the American Bar Association’s website.
    • If you have little or no money, but you and your spouse can reach an agreement easily, then go to your local court’s website or office and request information on how to do a ‘pro se’ (representing yourself) divorce.
  • My divorce has been going on for well over a year now. I am living at poverty level while he is taking lavish vacations and driving a luxury car. What can I do if his attorney keeps postponing court dates?

    Contact your attorney or retain one if you haven’t already. Your attorney should immediately file for a temporary spousal support order on an emergency basis.

  • What does "file for divorce" actually mean?

    This can vary from state to state, so you will need to consult an attorney in your area for more specifics. In general terms, filing for divorce consists of filing a summons with the court, which is considered the 'date of commencement' of the divorce action.  You must then serve your spouse with the court papers within a specified period of time from the filing date.

  • Taxes
  • Are alimony (spousal support) payments considered taxable income?

    Alimony is a support payment made to a former (or separated) spouse under a divorce decree or separation instrument in an attempt to maintain the predivorce lifestyle. Alimony is sometimes called maintenance or spousal support. Simply stated, alimony is taxable income to the one who receives it and tax deductible to the one who pays it. To be considered alimony under present tax rules, however, the payments must meet several requirements.

    These requirements include (but are not limited to) the following:

    • All payments must be made in cash, check, or money order
    • A written court order or separation agreement must exist regarding the alimony
    • The order or agreement must not designate the payment as not being alimony (i.e., it cannot be designated as child support)
    • The couple generally cannot live in the same household while alimony is being paid (although an exception applies in the case of payments to a separated spouse living in the same household if the payments are made under a written separation agreement, support decree, or other court order)
    • The obligation to pay alimony cannot continue past the death of the payor-spouse
    • The former spouses cannot file a joint tax return

    You should also be aware of the alimony recapture rules. Because alimony is tax deductible, some spouses are tempted to disguise property settlement payments as alimony. They might accomplish this by front-loading alimony during the first couple of years. That is, one spouse might agree to pay high sums of alimony during the first two years after the divorce, and to continue with normal payments thereafter. According to the alimony recapture rules (which are fairly complex), deductible alimony payments will be re-characterized as nondeductible property settlement payments to the extent that payments made during the first two years are excessively front-loaded.

    For more information, consult a tax professional.

  • How is child support taxed?

    When a separation or divorce occurs and the couple involved has one or more children, the noncustodial parent is usually ordered to pay some child support to the custodial parent. The child's expenses over and above this sum are generally borne by the custodial parent. Whether you are paying or receiving child support, you should be aware of the federal income tax consequences. You are not taxed on child support that you receive, and you cannot deduct child support that you pay.

    Payments will be classified as child support for federal income tax purposes if the divorce decree or separation agreement:

    • Fixes a sum that is payable for the support of the child (this can either be a dollar amount or a specific fraction of a payment), or
    • Provides that the amount payable by the payor-spouse to the receiving spouse will be reduced when a contingency relating to a child actually happens, or at a time that can clearly be associated with a contingency relating to a child

    For example, John agrees to pay his ex-wife, Carol, $2,500 per month until she dies. (Note that the words 'child support' are not specifically mentioned.) Carol has custody of their child, Justin. The divorce agreement states that upon a certain date, John's required payment to Carol will decrease by $800. Because Justin will turn 18 within six months of the date on which the payment is scheduled to decrease, the payment reduction is assumed to be related to Justin's reaching 18 years old. Therefore, the $800 per month reduction is treated as child support, regardless of the parties' intent.

    From a tax perspective, being a custodial parent can be advantageous in terms of claiming the child dependency exemption and the child-care credit. In addition, the custodial parent can potentially qualify for head of household filing status.

  • Which parent can claim the children as dependents?

    Ordinarily, the custodial parent is entitled to claim the exemption, regardless of who pays child support. The noncustodial parent can claim the exemption if 1) the custodial parent agrees in writing (IRS Form 8332 should be completed and attached to the noncustodial parent's tax return), or 2) a pre-1985 divorce decree grants the exemption to the noncustodial parent and the noncustodial parent provides at least $600 in child support for the year.

  • Which parent can deduct the children's medical expenses?

    In this situation, custody of the child(ren) isn't required, and claiming the child(ren) as a dependent isn't required (although you must be eligible to claim the child as a dependent). Keep in mind that medical expenses are only deductible as an itemized deduction on Schedule A, Form 1040, to the extent they exceed 10% of adjusted gross income (AGI) on the tax return.

  • Which parent can claim the Child and Dependent Care credit?

    The Child and Dependent Care credit can only be claimed by the custodial parent. Only those child-care expenses incurred so you can work qualify for the credit. If qualified, you can claim the credit even if you are not claiming the child as a dependent due to your release of the right to claim the child to the noncustodial parent.

  • Which parent can claim the Child Tax credit?

    If qualified, you can claim the Child Tax credit for a child you claim as a dependent. Custody of the child is not required.

  • Which parent can claim the education tax credits for the children?

    You must be claiming the child as a dependent in order to claim the education tax credit, and you must have paid the qualified tuition and/or related expenses.

  • My spouse and I are filing separate returns. Can we both itemize deductions?

    When spouses file separately, both must use the same method of claiming deductions. That is, either both parties must itemize, or both parties must take the standard deduction. If you choose to itemize, it's important to know how to divide your deductions.

    If your filing status is married filing separately, you typically report on your income tax return only your own income, expenses, credits, and deductions. Therefore, if you paid for a doctor's appointment out of your separate checking account, you would claim that deduction on your return. Any medical expenses paid out of a joint checking account, in which you and your spouse have the same interest are considered to have been paid equally by each of you, unless you can show otherwise. Different rules may apply in community property states.

    You should also be aware that the amount of your total itemized deductions will be limited or phased out if your adjusted gross income (AGI) exceeds that tax year's level.

    Often, married couples have a lower overall tax liability if they choose to file jointly. This is not always the case, however. If you are unsure which filing method results in the lowest tax liability, you should determine your tax liability both ways before filing your return.

    For more information, see IRS Publication 17 or consult a tax professional.