How an Inheritance could hurt you in a divorce

If you are getting divorced and you are entitled to a large inheritance, although the Court cannot distribute your inheritance as part of the marital estate (unless you put it into joint names), it still must be disclosed as part of the divorce process. Inheritance that you are entitled to prior to the divorce due, can hurt you in the distribution of the marital assets even though the inheritance is not marital. One of the factors that the court considers in determining how to distribute marital assets is the separate estate of the other party at the time of the distribution. If you have a large inheritance, this could lead the Master in Divorce or the Judge to decide that you deserve less of the marital estate than they otherwise would award you if you had no inheritance.

It is important if you think that your spouse may have an inheritance, that you gather that information prior to the divorce by way of public record of a probated estate, or by production request, or interrogatories.

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Post-Judgment Relief

Most agreements submitted to the court for enforcement or final judgments made by the court are difficult to change. There is the option of an appeal or motion for reconsideration within a certain time frame following the decision. The argument at that time is usually that a wrong decision was made based on the evidence presented or there was some error of law. The remedies available for possible modification or amendment to final orders or agreements become more limited as time progresses.

Under NJ Court Rule 4:50, the following are examples of instances where relief on the basis of a post-judgment motion may be pursued: (1) mistake, inadvertance, surprise or excusable neglect; (2) newly discovered evidence which is likely to alter the judgment/order and could not have been previously discovered with due diligence; (3) fraud or misrepresentation by the opposing party; (4) judgment or order is now void; (5) judgment/order has been satisfied, released or discharged or it is simply no longer equitable for the judgment/order to have prospective application; and (6) any other reason justifying relief.

There are still time limits to consider. Request for relief under the first three instances must be within a year after entry of the judgment or order. Relief under the remaining three grounds must be within a reasonable time which is interpreted to mean in a timely basis after discovery of the facts giving rise to the application. This option for post-judgment relief is often sought in family law matters as it relates to final judgments of divorce and equitable distribution provisions. Relief is only to be granted upon a showing of exceptional circumstances with specific emphasis on an unconscionable change in circumstances; otherwise, parties will be held to what they agreed to or were ordered to do within the court’s discretion.

Click here to read more on family law appeals.

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How to Approach Debt in a Divorce

When you are getting divorced, most debt, with a few exceptions, accumulated during the divorce is marital debt regardless of the name on the debt. The first step in approaching your debt is to find out what you have. I recommend that you start by obtaining your free credit report. You can obtain one from each of the three major credit bureaus once a year. It may be a good idea to stagger it every three or four months so you can pull one from each throughout the year. Review your credit report to obtain balances, or identify accounts you either did not know about or forgot about. You should also have a title clerk do a search on your real estate to make sure there are no unknown liens on your house.

Next, compile an organized binder with a list of all your debts and start organizing your statements. You will want to obtain the statements of balances as of the date of your separation. You will also then want to start saving copies of cancelled checks and statements after your date of separation so that you can seek credit for payment of marital debt where it is allowed. In addition, you want to save the statements to show you did not increase the marital debt.

If you find yourself in a situation where you are unable to pay all the debt, you may want to consult with a bankruptcy attorney who can not only help you determine if it is a good idea, but may also be able to guide you in recovering money from creditors.

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Checklist to Include in a Divorce Agreement

If you are drafting a Property Settlement Agreement for divorce or having one drafted for you, consider including the following topics in your agreement:

1. House/other real estate: Be sure you indicate who will get to keep the house, when the deed gets transferred into their name, who is going to prepare the deed, who will pay any fees associated with the recording and transferring of the deed. In addition, be sure to indicate when the mortgage, home equity loan or any other debts against the house will be refinanced into the name of the spouse keeping the house and what happens if they cannot refinance. Will the house be sold? If so, who keeps the proceeds? Indicate what percentage of the proceeds the other spouse is getting in the refinance or sale or the set price. If the house has to be sold, who is going to pay for repairs? Who will maintain the expense of the home until it sells? You may have a host of other issues if the house sells such as the selling price, terms, etc.

2. Retirement Accounts/IRAs/Pensions: If you have retirement accounts, be sure to cover the percentage of the account the other party is receiving, if any, or the set amount in dollars and how it is to be calculated. Will you need a QDRO to provide for a tax fee transfer and if so, who will pay the cost to have it prepared? Certified by the Court? Is there a beneficiary or survivor benefit? If so, is the spouse going to be named or given a percentage and is there a value to this?

3. Savings Accounts, checking accounts: Have you closed all joint accounts? Have all accounts been fully disclosed? Who is going to keep what funds? Any credits due to the other?

4. Business: If one of the parties has a business, has it be valued? Who is paying for the valuation? If it is not valued, do you agree on the worth or understand you could have had it appraised?

5. Other Assets: Have all assets been addressed? There could be rewards dollars, airline mileage rewards, timeshares, stocks, bonds, investment accounts, stock options, etc. Be sure you cover every possible asset and who is keeping what asset.

6. Taxes: If taxes are being filed jointly, how will the refund or money owed be divided? Who is going to claim the children in future years? If any taxes are owed as a result of any distribution of assets, who is going to pay the taxes?

7. Debts: What debts of the marriage exist whether in joint or individual names, and who is paying what? What happens if one party files bankruptcy on a joint debt?

8. Alimony, APL, Spousal Support: Is it being paid and if so for how long and how much and to whom? Under what circumstances may it terminate early? Is it being waived?

9.Full Disclosure: Has there been a full and final disclosure of all marital assets? What happens if an asset is discovered after the agreement?

10. Future Breach of an Agreement: What happens in the future if one party breaches the terms of the agreement? Will attorney fees and costs be paid by the other side? Will you go to arbitration?

11. Custody and Child Support: Both custody and child support do not need to be in your property settlement agreement in order to get a divorce as they are separate remedies. Any provision in your agreement regarding support or custody will be modifiable. Since schools require a copy of your custody order, it really should be set forth in a separate document.

These are by no means all the points you should cover in your agreement, but these are essential. You may want to consult with an attorney to assist you in this process.

For additional information see:/Family-Law-Divorce/Division-of-Marital-Property/

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Living Together During Divorce

Sometimes when parties are divorcing, they continue to reside together under one roof while the divorce is pending. This can be the situation for many reasons. One reason may be that neither party has sufficient income to live on their own. It may be that all their funds are tied up into the house and they do not have a significant payment to put down on another residence. Sometimes, they both want to keep the house in the divorce. In others, it may be that neither wants to move out when there are children involved. Whatever the reason, it can be very difficult to live together while the you are divorcing and setting some ground rules may be in order.

When you have children and are in the process of divorce, it is best that you try to maintain a stable home environment for the children. Do not start dating and bringing your new partner into the home to visit while you are still living with your spouse. It can be confusing for the children and can lead to conflict. Likewise, do not bring other families into the home to live unless your spouse agrees. This can lead to an action in Special Relief to try to evict you and your unwanted guests. In addition, keep your arguments out of the earshot of the children. If you need to address things that stir emotions, put it in writing to your spouse or create a space in your home away from the children where you can go to talk.

Sometimes when you are living together while divorcing, it is not a bad idea to try to create a custody schedule if you have children. This allows you to test out what may work or not work in the future when you eventually do separate. It does not mean you have to leave or not see your children when you are in the home together but you may want to set up rules on responsibility for the children on particular nights and weekends, which may involve all the care for the children, from cooking, to dressing, feeding, bathing, etc. so you have a trial run before you actually physically separate.

Financially, many parties who live together while they are divorcing continue to manage their household expenses as they did when they were not divorcing. This seems to lead to less conflict in the home. You can still and should establish your own separate account so that any excess funds you generate from your own work can be deposited into that account. You may want to deposit your earnings in your separate account and transfer money into your household account to pay the bills. Any money you earn after separation that you keep separate will not be considered in the divorce. You definitely want to close joint credit cards unless they are used strictly to pay household expenses.

While it may not be ideal to be getting divorced and still living together, it can be easier when you set up rules that both parties follow.

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What Happens to the Divorce if you Spouse dies?

If you are getting a divorce, what happens if your spouse passes away before it is finalized? Under Pennsylvania law, if you have established grounds for divorce, the Family Court may still proceed with equitable distribution of your assets. They cannot grant a divorce posthumously, but you can still seek your share of the assets that you both accumulated while you were married. This is especially important in cases where the assets are held in your spouse’s name. You will need to file a Petition to substitute your spouse’s estate as the other party.

If you do not have grounds for divorce, then the divorce action will terminate and you will have to pursue your rights in Probate Court. Under the Estate laws, as a surviving spouse, you are entitled to receive in Pennsylvania 30% of your spouse’s estate even if they did not include you in the will. You would have to file a Petition to seek your elective share of the estate. If you have grounds for divorce at the time your spouse has passed away, you lose your right to seek the elective share.

If you have a spouse who is ill while you are getting divorced, it may be important to make sure you have established your grounds for divorce. In Family Court, there is a greater possibility that you will receive more of the assets since it is a Court of equity. It does not mean that since your spouse died, you will receive everything, but you likely will fair better than if you have to go to Probate Court. In order to establish grounds under the no-fault statute, you either have to have both parties consent to the divorce after 90 days of service or you can move to establish the grounds after a two years separation.

For additional information see:/Family-Law-Divorce/Grounds-for-Divorce/

 

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Divorce and When to get the House Appraised

If you are getting divorced and own a home, the value of the home is considered for purposes of equitable distribution. If the home was owned by you prior to the marriage and remained in your name alone, the increase in value of the home from the date of the marriage until the date of separation is considered marital. In this case, you should get two appraisals done on your house, one from the date of the marriage and one as of the date of separation.

If you received the home as an inheritance, you will need the values of the home as of the date of gift to you and as of the date of separation if you kept the home in separate names. Since inherited assets are non-marital, as long as they are kept separate, only the increase in value of the asset from the date received to the date of separation is considered. You again will need two appraisals to reflect these dates.

If, however, you own a home that was purchased during the marriage, you will want to delay getting the house appraised until you are either ready to sign an agreement or go to a divorce hearing. In Pennsylvania, the Court values the home as of the date of distribution so by getting an appraisal close to the date of your divorce hearing gives the most accurate value. If you get the house appraised too early, you may end up having to pay to have it appraised again.

If you own a home that was premarital or inherited, but you added your spouse’s name to the deed, you will want to get an appraisal at the time you married or received the asset, at the time you gifted it to the marriage and at the time of distribution.

When you get your house appraised, you may want to also consider whether you need to also get a fair rental value of the house included in the appraisal. If the house has no mortgage or a very low mortgage and you are not living in the house, you should get the fair rental of the house established in your appraisal so that you can make a claim for this value in equitable distribution.

It is also important to remember that you do not need an appraisal done if both you and your spouse are able to agree to the value of the home. You may also want to use a Comparative Sales Analysis in an effort to come to an agreed price.

If you are having trouble getting access to the home to have it appraised, there are remedies and you can file Special Relief with the Court in divorce in order to gain access for purposes of an appraisal. In that instance, you should consult with an attorney.

For more information see:/Family-Law-Divorce/Division-of-Marital-Property/

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Dating During and After the Divorce

When you are going through a divorce, you may wonder whether you should be dating and if you do how it will impact your case. Once you are separated, even though the divorce is not yet final, you are permitted to date without it being considered grounds for adultery in the legal arena. While adultery is a factor in the consideration of an award of alimony, it refers to relationships that began prior to a separation not after. Once a divorce complaint is filed you are clearly separated and for some that may now involve the choice to date. If you are entitled to support or alimony, you may date both during the divorce or afterwards. As long as you do not cohabitate, it will not affect your alimony award. Cohabitation can be found even if the other person has their own residence if they spend significant overnights with you.

Whether you choose to date during or after the divorce is a personal choice. It is also a personal choice as to whether you want to disclose it to your former spouse. Sometimes it may help your former spouse accept that the relationship is over and in other cases it may add such fuel to the fire that it makes an amicable settlement impossible. In the latter case, you may want to wait until the divorce is final. If you have children with your former spouse, you should consider disclosing it to them at the point that you are ready to introduce your children to that person. Oftentimes, this is where conflict occurs. It is only natural for your spouse to have concerns about some third party around their children that they do not know, especially if this person is going to spend significant time with your children. If you really want avoid litigation in custody, you may want to provide as much information or even an introduction to your former spouse depending on the circumstances in order to avoid unnecessary litigation in custody. If you consider how you would want to be treated if you were in the situation, it may help to guide you in how to approach the situation with your former spouse.

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What happens if I don’t want a divorce?

Pennsylvania has two no-fault grounds for divorce. One is where both parties consent after 90 days of one being served the complaint and the other is where one party does not consent and the other party moves the divorce forward after a two year separation. If your spouse wants a divorce and you do not want a divorce, ultimately, unless they change their mind, they will be granted a divorce. Even if you have children and you contest that it is not in the best interest of the children, if your spouse does not wish to be married anymore, ultimately, the court will grant a divorce. You can delay the divorce by not consenting to the divorce. This will force your spouse to wait the two year period from when you separated before they can move the divorce forward. Even at that point, you can still contest that it is not irretrievably broken or that the two year separation has not occurred. You can say discovery is not completed and further delay the divorce or file an appeal. While there are many ways that a divorce can be delayed, ultimately, it will become final if one of the parties wants a divorce. The day will come when the marriage will end. While you may not want a divorce, you should weigh the benefits of delaying it against the costs. Unless you really think there is a chance of reconciliation if you delay it, or you benefit financially for health insurance purposes, sometimes, moving on quicker and accepting the ultimate outcome is better. It enables you to heal quicker and create a life that does not involve the pain and emotional turmoil that a drawn out divorce creates. It also may be financially better to have the finality and save in extended legal fees. Finally, it may also make it possible to move on to a different relationship with your ex-spouse where you are able to maintain a civil relationship verus one filled with resentment for keeping them in a marriage that they no longer desire.

For more information, see:/Family-Law-Divorce/Grounds-for-Divorce/

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How to Divorce a Spouse you cannot locate

If you want to divorce and are not able to locate your spouse, it is not completely hopeless to get a divorce. There are challenges involved that are different than when you have an address for a spouse. In order to divorce your spouse without an address or location, you will need to first make attempts to locate your spouse. Your attempts need to be documented. Some ideas would be to send mail to their last known address and save the envelope showing that it was not deliverable and that there is no forwarding address. You may also want to contact relatives of your spouse and keep copies of letters or calls you have made to attempt to locate them. You may also want to get statements from relatives or prior coworkers indicating that they have no idea where your spouse is located. You may even want to hire a professional to try to locate them through their date of birth or social security number. You may want to contact the Post Office and request freedom of information for a forwarding address. If, after you have exhausted all attempts to find your spouse and you still have no success, you can then petition the court to serve them the divorce by publication. You should be prepared for the costs of publication. Newspapers charge based on the number of words, and it is not unreasonable to expect that this cost will exceed $ 1000, even if you have no assets to divide which is the case in most divorces that involve a missing spouse.

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