General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
In many divorce cases, the most thorny property division question is: what to do with the marital home?
That is especially likely in a depressed real estate market like the current one.
One commonly agreed to option is for the spouse who wants to remain in the house to refinance the other spouse’s name off the mortgage.
But what if the occupying spouse doesn’t have sufficient income or credit to accomplish what was agreed to?
Well, that may depend on what state you live in.
A Virginia women is apparently facing jail time for not being able to refinance as agreed.
Due to the downturn in the real estate market, she also has been unable to sell her way around the refinancing obligation.
Read more in this WAVY TV 10 (VA) article: York Co. woman faces possible jail time for failing to refinance, sell home.
A millionaire and his wife are pitted against each other in an ongoing custody battle … over their dog.
The “father”, who has no children, has spent over $60,000 to win custody of the pooch.
At first, the couple engaged in roughly equal timesharing, by agreement.
Then the “mother” accused the “father” of abuse.
The judge didn’t buy it, and the “father”’s timesharing resumed …
Until the “mother” moved to Connecticut.
Since then, the “father” has had no time with their pet.
The “father” is filing an appeal.
Read more in this New York Daily News article: Fur flies over dog custody.
Last month I posted Canada to Enforce Premarital Agreements Crossing into Religious Issues.
In that case, the Canadian Supreme Court ordered a man to pay his ex-wife nearly $50,ooo for making her wait 15 years for a religious divorce - in violation of their prenuptial agreement.
The Canadian high Court based its ruling both on the contract and a Canadian statute that penalizes spouses who hold up religious divorces.
Now the ex-husband is seeking an appeal to challenge the statute as interfering with freedom of religion and as being discriminatory, because he argues that it targets Jews.
It is anticipated that the Canadian Supreme Court will decline to hear the appeal, possibly because the ruling was supported on contract grounds independent of the challenged statute.
Read more in this Montreal Gazette article: Man challenges divorce law.
The Canadian Supreme Court recently ruled that a premarital agreement is a binding contract and that the Court has the power and obligation to enforce it - even where it has religious implications.
In the case at hand, a premarital agreement provided that, in the event the couple’s marriage broke down, the husband was to seek a “get” for the wife. A get is a divorce under Jewish religious law.
Without the get, under religious law, the spouses are still considered married to each other.
The husband refused to pursue a get for fifteen years, until after the wife was beyond her child-bearing years.
The wife sued the husband for breach of contract, seeking damages because she was unable to remarry and have kids within her faith.
But, of course, under Canadian law, she had the legal right to remarry and have children.
Read more in this Montreal Gazette editorial: Court erred badly in divorce ruling.
Financial Considerations In A Divorce Settlement:
Read more in this Kansas City Fox 4 News article, FOX 4 Finance: Divorce Settlements.
Granted, taxes are not foremost in the minds of most couples going through a divorce.
But for couples with sufficient assets, income and civility, tax impact is an important consideration which may be factored into any divorce settlement.
Couples should pay particular attention to alimony, the sale of the house, income tax filing status and timing of the divorce.
An interest in real estate can be transferred from one spouse to another tax-free, but alimony payments are normally taxable income to the receiving spouse.
Capital gains treatment on sale of real estate may favor selling as a couple before the divorce, rather than as a single after the divorce.
For late-in-year divorces, it may pay to wait until early the following year.
In appropriate cases, it may be well worth consulting a tax accountant or tax attorney on the structuring of any divorce settlement.
Read more in this [New Jersey] Courier Post article: Keep your cool in a divorce to avoid tax headaches.
Under the law of California, Florida and many states, the obligation to pay alimony ends when the receiving spouse remarries, among other possibilities.
A divorcing California man agreed to pay his wife a certain sum of money each month as alimony.
After their divorce, his ex-wife registered her domestic partnership with another woman.
Believing the registered domestic partnership to be equivalent to marriage, the man thought he was released from the obligation to pay alimony.
But a California judge disagreed, ruling that the domestic partnership is mere cohabitation and not a marriage.
The man plans to appeal the court’s order that he continue to pay alimony.
The ruling highlights one of the less publicized impacts of the difference between marriage and civil unions or domestic partnerships.
Read more in this San Francisco Chronicle article: Man ordered to pay ex-wife alimony, despite domestic partnership.
Accountants offer some useful advice on how to protect yourself from financial ruin in a divorce.
Regardless of how financial accounts are titled, they may be marital assets or liabilities, subject to equitable distribution in the divorce.
But in the short term during the divorce case and before final judgment, accounts that are titled jointly pose special issues and challenges in relation to recourse options open to creditors and the other spouse.
Joint accounts also pose special issues and challenges in regard to which spouse has access to how much of the funds in the accounts and when.
How to best handle joint accounts during a divorce case really depends on the facts of the particular case.
But spouses should try to educate themselves on, among other things, how marital assets and liabilities are actually titled.
Beneficiary designations should be re-considered.
Provisions for children, especially minor children, should also be re-considered.
Read more in this St. Louis Post-Dispatch article: Protect yourself if you’re facing a divorce.
Husband dies of a gunshot wound inflicted on the side of the road. Wife is charged.
Murder trial.
First witness for prosecution: Divorce lawyer.
His testimony: Their prenup limits Wife’s take in event of a divorce to $250,000 plus half of jointly held assets, for an estimated total of approximately $1.5 million.
In event of Husband’s death, his estate would be about $6 million. Her inheritance, about $3 million.
Next key witness: Wife’s boyfriend.
His testimony: He shot the Husband, for which he pleaded guilty to stalking and a gun charge. Why did he do it? For half of her inheritance.
Read more in this [Cleveland] Plain Dealer Reporter article: Defense begins its case with divorce lawyer and this KDKA [Akron] CBS article: Tearful Donna Moonda Learns Jury’s Guilty Verdict.
Some spouses used to complain of an interfering inlaw. Things have changed. The interfering inlaw pales in comparison to the latest interference in some marriages.
Imagine trying to hold your own against your spouse’s employer or future business partners. Yet that is exactly what many spouses must do these days.
It is reported that many hedge funds are now mandating that prospective partners have an executed post-nuptial marital property settlement agreement waiving any interest in or claim to the hedge fund. Other funds merely strongly encourage it.
Following suit, postnups are also reportedly making a splash among partners in investment banking companies as well.
Before long, postnuptial waivers of claims to business entities may become the price of admission to partnership in numerous businesses, including, among many others, accounting firms, law firms, medical practices, etc.
Of course, it is important to keep in mind that waiving a claim to the business itself is not necessarily the same thing as waiving a claim to a share of the value of the business, which could be paid from other assets. It may, however, complicate the process of determining the value of the business.
But it all depends on how broadly or narrowly, and creatively, the postnuptial agreement is drawn.
Read more in this New York Times article: Hedge Funds: With More Money Comes More Post-Nups.
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