Divorce FAQs

There are many factors which go into the decision to keep the family home including the ability to pay the mortgage, property taxes, and insurance; whether the children will be comfortable in another home and a potentially different school district; whether there are offsetting assets for the out spouse; the potential loss of the out spouse’s $250,000 capital gain exclusion when the home is eventually sold; and the ability of the spouse who retains the home to refinance the mortgage, if necessary. The family’s entire financial picture needs to be analyzed to see if it is in anyone’s best financial interest to retain the family home.

While there is not a tax consequence to dividing retirement assets incident to a divorce, when your retirement assets are withdrawn, they are taxed as ordinary income. Care needs to be taken to ensure that the cost basis of all assets is determined before there is discussion around which assets either party is to keep. $100,000 worth of retirement assets is not the same as $100,000 worth of cash. In addition, there is the issue of whether the employer’s plan even allows a division. There have been instances where an agreement has been made to divide a plan when the plan does not allow it. This can be a costly mistake. Another asset should be identified before the marital agreement is signed to offset the half of the marital portion of the plan that would go to the non-owning spouse.

A thorough examination of all the finances needs to be made and put into one readable report. The original basis; cost of all the assets should be determined. My reports will show the real value of each asset. Again, a dollar may not equal a dollar. Debts will be reviewed for interest rates, minimum payments, length of years to pay off, and the ability to pay off immediately. With all this knowledge, you will be able to negotiate an equitable division.

Family support is combined child and spousal support. Child support is never taxable or deductible. Under current tax law, neither family nor spousal support are taxable to the recipient or deductible to the payor. Care must be taken in deciding yearly support amounts. Certain step-downs in yearly amounts will trigger the IRS to deny deductibility of older agreements. Financial analysis takes into account these tax issues. In addition, certain levels of family or spousal support may require quarterly estimated income taxes to be filed and paid.

My spouse has equity incentives such as stock options, restricted stock benefits, and other employee plans.

Equity Incentive analyses will give a complete breakdown of values, how they can be divided according to the employee plan documents, and potential offsetting assets. Discussion of the pros and cons, tax consequences, and current availability of these assets for division is necessary for informed decision making.