Spending Money While Going Through a Divorce

Part of the divorce settlement process includes determining how to divide marital assets equitably. Equitably does not always mean equally, and factors in that calculation may differ from state to state. However, one thing that divorcing spouses need to avoid is the dissipation of marital assets.

Dissipation is the legal term for using funds in an extraordinary or unnecessary manner – in other words, wasting money. Such expenditures can be deemed as retaliatory, or an effort to decrease the spouse’s portion of the assets, and can result in penalties.

While going through the divorce procedure, avoid major expenses that are not typical, for instance purchasing a luxury automobile or going on vacation. Even frequent smaller purchases could be considered dissipation if the accumulated expenditure becomes substantial. Avoid the sale of assets: a boat, jewelry, etc. Even if you think it is “yours,” in the judgment of the court, all assets acquired during the marriage are deemed joint assets and will be calculated into the total sum of marital assets.

When a spouse brings a complaint of dissipation and the court judges in his or her favor, the judge generally will award that asset to the spouse who spent it and give the other spouse a financial award in the same amount. For instance, if you spent $20,000 on a luxurious vacation, the judge will determine that you have spent $20,000 of your assets already and your spouse may get $20,000 more than you do at the division of assets.

But what if you suspect your spouse to be the one wasting money? It can be difficult to prove if you do not have access to all financial records during the divorce. Major purchases or expenditures may be easier to identify, but for frequent extravagant expenses, gambling losses, or other wasteful spending, you may have to engage a forensic accountant to analyze the expenditures in order to determine if they are substantial and frivolous.

 

Prior to a divorce, a person may be tempted to hide money. If most of the money is in your spouse’s name, it is a wise idea to move some funds into an account in your name so that you have money available in the short term. However, do not hide it. Money can be traced, and the court may further penalize you for perceived ill will. And under some circumstances, a spouse can demonstrate dissipation started before the divorce was filed, so spend carefully if you suspect a divorce is imminent.

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PASCDU

If you are paying or receiving support in Pennsylvania you are likely dealing with PASCDU. The acronym stands for the Pennsylvania Statewide Collection and Disbursement Unit. They are responsible for collecting support from the payors and giving support to the payees. Payors are warned at the time an award is established that they will not receive credit for direct payments to the payee and all payments must go through PASCDU. Payors should receive information on sending payments to PASCDU at their support conference or hearing. Local domestic relations offices may be able to accept payments as well. Wage garnishment is the preferred method of collection for support. Once it is set up, payors do not need to worry about sending payments in any longer as the support due will be automatically withheld from their pay.

Payees should receive information on receiving payments from PASCDU at the support proceeding. They can elect to receive the money on an electronic card similar to a debit card or they can provide their bank information to allow for direct deposit. If electing to receive support via direct deposit, the payee must have their bank complete an enrollment form. PASCDU keeps track of all payments in and out and will generate contempt petitions if payments fall behind. For parties having issues with support the first step to take is to contact your local domestic relations office. PASCDU is located in Harrisburg. Additional information is available online at https://www.humanservices.state.pa.us/CSWS/

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Proving Your Ex is Cohabitating

Spousal support and alimony are calculated based on a complex combination of factors including income, age, health, length of marriage, and expenses. These calculations vary from state to state, but the assumption is usually that the spouse receiving support from the ex (and statistically, it’s usually the wife) does not have another adult partner helping to provide financial support.


But what if you suspect your ex-wife is living with someone and getting help paying the bills? This doesn’t have to be a romantic relationship. The issue is primarily whether or not she’s getting financial help. If that’s the case, your support or alimony would likely be reduced or terminated. So how can you prove it?


1. Surveillance: This can be done by you or by a private investigator. A private investigator may be pricey, but you will avoid the possibility of being accused of stalking or harassment. In addition, a private eye can testify in court. One thing to look for is car activity. Is your ex-spouse’s car at another address overnight on a regular basis, or is someone else’s car at her house overnight frequently? Get pictures of the car there late at night and still there early the next morning. Getting pictures of your spouse or the other person coming or going is also helpful.


2. Look for evidence: You’ll want to interview neighbors and friends. Ask questions that may lead to information about the living arrangements or recent behavior of your ex. You should also watch social media. Are there lots of posts that mention a significant other? Images of them together? Take screenshots.


3. Get subpoenas: Cell tower location data will tell you where your spouse has been. Records from the landlord, utility companies, and banks that hold loans or the mortgage can help determine who’s writing the checks. A records request from local law enforcement can tell you who has listed that address as their address. It will also tell you if there’s been any police activity there.


This information may be particularly valuable if children are involved. Cohabitation may affect child custody arrangements, especially if any police activity has taken place at the residence where your spouse lives.


Again, rules change from state to state, and some require remarriage to terminate alimony. Look into the rules of your state on this matter, and if necessary, take some of the steps listed above to find out once and for all if your spouse is getting significant financial help.

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Mortgage Payments

A jointly owned property is frequently addressed in family law actions. It may be defined as a marital asset hence subjecting it to equitable distribution. Financial responsibility for the property may also be a factor in the context of a support action. If only one party is making payments on a marital residence while a divorce is pending, they may be able to seek a credit for payments made. This may be the case if both parties are residing in the home or if the party not contributing to the mortgage is residing in the home. Mortgage payments may also be considered in the course of establishing a support award. Pennsylvania Rule of Civil Procedure 1910.16-6 covers adjustment to basic support awards and allocation of additional expenses. Under sub-section (e) mortgage payments, real estate taxes, and homeowners’ insurance may need to be considered. Second mortgages, home equity loans and other obligations secured by the marital residence may be considered but are within the discretion of the court and addressed on a case-by-case basis.

The expense to maintain the marital residence can be considered if the total expense exceeds 25% of the obligee’s (party receiving support) or obligor’s (party paying support) income. If the obligee is in the marital residence and paying the mortgage, the court would look to see if the mortgage payment exceeds 25% of the obligee’s income after considering the basic support award. If the mortgage is still more than 25% the court can direct the obligor to assume up to 50% of the excess resulting in an increased support award. Obligors can also receive assistance with the mortgage if they are the party in the marital residence or responsible for the payments. The basic support award is subtracted from the obligor’s net income first. If the mortgage payment is more than 25% of the remaining net income available to the obligor, the court may make a downward deviation in the basic support award. The mortgage deviation is only applicable prior to final equitable distribution in the divorce matter. Additionally, the courts are more likely to allow for a mortgage deviation in cases where the home is ultimately going to be sold as opposed to a case where one party intends to keep the residence post-divorce.

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Treatment of Veterans’ Benefits

Former military members may be eligible to receive a number of different veterans benefits from the Department of Veterans Affairs (VA). Possible benefits include disability compensation, pension benefits, life insurance, educational benefits and more. Veterans benefits cannot be divided as an asset in a divorce case. This is due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Pennsylvania Divorce Code confirms this rule. Under 23 Pa. Section 3501(a), discussing the definitions for marital benefits, veterans’ benefits exempt from attachment, levy or seizure are defined as non-marital. Additionally, the veteran gets to decide how to use educational benefits and who to designate as beneficiary for their life insurance.

Veterans benefits can be classified as income for purposes of determining a child support award; specifically, disability payments. The disability payments are intended to compensate the veteran for lost earnings and to support their family. There are restrictions as to when veterans’ benefits can be garnished. In the event the benefits cannot be garnished, that does not mean that the veteran is not still responsible for the support payments as determined by the guidelines.

Copies of the current support order and records of any arrears owed and former payment history will need to be supplied to the VA to review as evidence when making its determination on whether garnishment is appropriate and a reasonable amount to be garnished.

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Starting Probate

After a family member’s death, the first step should be to determine if they had a last will and testament. If so, you will want to locate the original will and make sure it has been properly signed and witnessed. The named executor will need to go to the Register of Wills with the original will, photo identification, and some method of payment to open the estate. If the named executor does not want to act they can sign a renunciation which would allow someone else to take on the role. The Register of Wills will give the executor a short certificate of letters testamentary. This document authorizes the executor to handle the decedent’s estate. If a loved one has passed away without a will, the Pennsylvania laws on intestacy will govern how their estate is handled. The closest kin can apply to the Register of Wills to be designated as the administrator of the estate. They will also be granted a short certificate as proof of their authority to handle the estate.

The executor or administrator has the responsibility for identifying and managing all the assets and debts as well as identifying beneficiaries and their contact information. Notice should be provided to all possible beneficiaries. Notice should also be provided to all possible debtors by publishing notice in the local law reporter as well as a local newspaper of general circulation. The executor or administrator should notify social security, employer(s), banks, insurance companies, retirement plans, etc. regarding the death of the decedent. Ideally within three months of the date of death, the executor or administrator should pay estimated taxes on the estate to get a discount. Taxes for the estate will depend on the size of the estate. A federal estate identification number should be obtained. The executor or administrator also needs to make sure the final individual tax return for the decedent is prepared and filed in addition to the inheritance tax return.

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Grandparent Adoptions

It is not uncommon for grandparents to take on a more active role in the lives of their grandchildren and serve as their primary guardian. Adoption is an option for cases where all interested parties desire to make this arrangement permanent. Some of the statutory requirements for adoption are waived in the case of a grandparent adopting a grandchild. A standard adoption requires a home study to be completed by the local Children & Youth services agency. This process is somewhat expensive and takes a number of months to complete. A home study is not required for a grandparent adoption. Grandparents do need to complete the requisite background checks. Presently, there are three background checks required: (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare.

Lastly, the rights of the natural parents must be terminated in conjunction with the adoption. The termination can be voluntary if the natural parents are consenting to the adoption and their consents would then be attached to the Petition for Adoption for submission to the court. Alternatively, if lacking written consents, grounds for involuntary termination can be addressed with the petition. Common grounds for involuntary termination include conduct by the parent(s) continuing for a period of at least six months evidencing their refusal or failure to perform parental duties or repeated and continued incapacity, abuse, neglect by a parent that has caused the child to be without essential care, control or subsistence necessary for his physical or mental well‑being. Following successful completion of all the pre-requisites and filing of the Petition for Adoption, the final step is the adoption hearing. Generally, the hearing is just a matter of ceremony and a happy occasion for the adopting parents.

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Pre-Nuptial Agreements

A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement could provide that each party retains anything they came into the marriage with as well as anything they acquire in their own name and that anything acquired jointly during the marriage will be divided equally or pursuant to their jurisdiction’s divorce laws. A pre-nuptial agreement can also be much more specific and detailed in how it addresses pre-marital and marital property, regardless of how it’s titled. An agreement may also address support for a spouse in addition to division of assets. For example, an agreement could provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. It could also act as a waiver to any future support such that neither party could subsequently request any form of spousal support.

A pre-nuptial agreement is a form of contract and must meet several requirements to be valid. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was under duress or felt forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud or misrepresentation. Any challenge under the above listed causes of action will result in a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not.

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Can You Pay Child Support Directly To The Child?

Child support is designed to allow the non-custodial parent to share the financial load for food, clothing, shelter, and other expenses of raising a child. Some parents wonder if it would be easier, wiser, or more beneficial to pay child support directly to the child. In almost every case, the answer is…no.

 

Child support is a direct agreement between the parents. There are many expenses that go along with raising a child. So, while payments made directly to a child may allow that child to buy themselves clothes and a little food, it would not allow them to pay rent or a mortgage, utility bills, insurance, medical bills and many of the other financial obligations that a parent handles. In most cases, a child is too immature in both experience and financial knowledge to handle child support money on their own. Therefore, it is better left to the parents.

 

The parent who has primary custody, or has a lower income and has equal custody, is entitled to receive child support.  It is their choice whether to file through the court, in which case the amount will be attached to the payor’s wages, or to have the support paid directly. The benefit of having the court garnish the payor’s wages is that they will keep track of the payments and if any are not paid, they will automatically order a contempt hearing for enforcement after 30 days.  

 

Despite the ease of wage attachment for basic child support, it may be simpler to have expenses that fluctuate such as tuition, camp fees, and before or after school care expenses paid directly to the provider. In those situations, you will be responsible to file for enforcement if the direct expenses are not paid.

Keep in mind that child support is based on a guideline calculation in proportion to incomes and is based on the total income of both parents.  That is why a lower income household may have a lower amount of support than a higher income household.  

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Divorce and Your Retirement

As a family lawyer for Bucks and Montgomery County, we help clients just like you through the complicated process of divorce. When clients walk in our door, they are usually very concerned about paying and receiving alimony and child support and then working out a schedule for their children.  During the initial meetings and discussions, we remind them of the importance of looking down the road a few years to retirement.

 

Divorce is as much about your future as it is about your past and present. And retirement funds and benefits are a critical component of your financial future. Whether you are trying to protect your retirement accounts, or collect from your spouse’s retirement accounts, dealing with these funds is as important as it is complex.

 

For many people, retirement accounts and benefits are one of their most valuable assets. In a divorce, these funds are considered marital property and are subject to division. Retirement funds can include 401k money, investment funds, IRAs, and pensions.  Social Security is a benefit and not an asset that is distributed in a divorce but may be considered income for purposes of support. With short and long-term implications for both parties, it is essential to understand the laws and your rights when it comes to divorce and retirement funds. Here are a few points to keep in mind.

 

Understand how retirement funds are divided

An ex-spouse is entitled to a percentage of the amount of retirement earned during the marriage.  If a spouse has been working for 20 years, and the marriage lasted for the last 12 of those years, the ex-spouse is only entitled to retirement funds deposited and interest earned during those 12 years, not earnings or investment made prior to the marriage or after separation.  Also, since oftentimes the spouse is still working, it is unknown how many years of work they will have. A fraction, known as a coverture fraction, is a formula often used to determine what the percentage will be at retirement. The numerator is the number of years married and the denominator is the total number of years accumulated in the plan (usually TBD).  The percentage the court awards is multiplied by the fraction and the amount of the plan or the dollar benefit to determine what the spouse, called the “Alternate Payee” will receive. It is also important to determine if there are any beneficiary options and whether the spouse will be a beneficiary and whether it has marital value.

 

How are your retirement funds divided after divorce?  

If your or your spouse’s 401(k) or employer-sponsored retirement accounts will be divided, you need to let the plan administrator know as soon as possible. They will be able to tell you the value of the retirement account on the date of marriage and the value upon divorce – again, this is the part of the retirement account subject to division.  

 

If you are going to be dividing retirement assets, in many cases, you will need to obtain a Qualified Domestic Relations Order (QDRO), which is separate from your divorce decree. It will be signed by a judge and will instruct the employer to separate the retirement account into two accounts. This order will allow retirement funds to be withdrawn from the retirement account without penalty and deposited into a separate account for the non-employee. It is important to note that QDROs are not needed when the retirement plan is an IRA and in other types of plans will be a DRO similar to a QDRO.  It is best to hire an expert to draft a QDRO who is familiar with the rules and regulations and plans involved. The cost to draft it is typically around $600 per QDRO and the parties normally share that cost. You may want to check if your plan, however, imposes any of their own fees.

 

Consider Alternatives

In some situations, the parties may negotiate a settlement that avoids the splitting of retirement funds. For example, one spouse may offer the other a buy-out such as stocks, bonds, investments, or property of equitable value in exchange for keeping all of their retirement funds intact. In order to do this, however, you must know the dollar value of the marital portion of the retirement plan. In pensions, this will require an appraisal.  In 401(k) plans you will need all the statements after separation as well the statement at the time of separation in order to determine what is marital.

 

Get Professional Help

A qualified attorney will know your rights in regard to protecting or collecting retirement benefits and funds. A certified accountant can help you explore the short-term tax implications and long-term financial ramifications of dividing retirement funds.

 

Divorce presents an incredible challenge – making decisions that have far-reaching impacts at a time when you are the most emotionally and mentally stressed. Allowing a compassionate professional to provide guidance can help ensure not only a brighter future but a more financially secure one as well.

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