Tuesday, July 17, 2007

Tax rules on selling home after a divorce


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Sunday, July 15, 2007

Are You Entitled to a Part of Your Spouse's Severance Package in a Divorce?

Suppose you are getting divorced. During the marriage your husband or wife lost his or her job and received a severance package. Are you entitled to part of that money? According to the Nebraska Court of Appeals, the answer is yes.

In Malin v. Loynachan, 15 Neb. App. 706 (2007), a Nebraska appellate court addressed this issue for the first time. The Court of Appeals ruled that the portion of the severance package earned during the marriage is considered marital property. The Court also held that the spouse claiming that part or all of the severance package is nonmarital has the burden to prove so.

In Malin, 15 Neb. App. 706 (2007), the husband received a severance package that included $11,022.30 in vacation pay, $98,581.08 in severance pay, a bonus of approximately $1,390.60, and $5,000 in outsource assistance. The severance pay consisted of 1 month's salary per year of service. The husband had worked for the company a total of 88 months, and he was married to the wife for 68 months at the time left his job.

The Court first multiplied the amount of the severance package by 62%, in order to reflect the amount actually received after taxes (that is outrageous, by the way). The Court then multiplied that amount, $61,120.27, by 77.27%, to reflect the portion of the severance pay earned during the marriage (68 months divided by 88 months). The Court concluded that $44,227.63 of the severance pay was marital property. The Court also ruled that since the husband did not prove that the vacation pay, bonus pay and outsourcing assistance amounts were not marital property, the after-tax amounts of those items would also be included in the marital estate.

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Wednesday, July 11, 2007

How do Nebraska Courts Treat Money Spent on the “Other Woman (or Man)”?

Suppose you are getting a divorce. You either knew already that your spouse was cheating or have found out during the divorce proceedings. You learn that your husband (or wife) was spending tons of money on another person. It could be dinner, jewelry, lingerie, hotel rooms, heck, it could be for breast implants (yes, that has actually happened). When you total it up, it is to the tune of several thousand dollars. What do you do? Does your spouse have to pay that money back?

When you get a divorce in Nebraska, the court hearing the case will decide what is considered marital property and split that between you and your spouse. If the court decides that your spouse has to pay back the money spent on dalliances, the value of the marital estate is increased, which means at the end of the day, you get more money. So it is in your interest to ask the court to find that the money spent by your significant other was marital property. The term for what he or she did is “dissipation of marital assets”, or “dissipation of funds.”

So what is required for the court to find a dissipation of funds? Well, first, your spouse must have spent money or used marital property for a selfish purpose unrelated to the marriage. If your husband took $4,000 from your joint bank account to get his girlfriend breast implants, that would definitely qualify.

However, the second requirement is crucial. The dissipation of funds or assets must have occurred at a time while the marriage was undergoing an irretrievable breakdown. If your spouse is spending the money at a time when you think you are in a perfectly happy marriage, you may not be able to convince the court that your spouse should reimburse the marital estate for the funds or assets spent.

The Nebraska Court of Appeals squarely addressed this issue yesterday in Malin v. Loynachan, 15 Neb. App. 706 (2007). In Malin, the wife discovered that her husband had charged things on their credit card, such as trips, jewelry and lingerie purchases, that were not for her benefit. The husband admitted to spending about $9,000 on another woman. The trial court declined to make him reimburse the marital estate for that amount, and the wife appealed. The Court of Appeals ruled that, because the wife did not provide any evidence that the marriage was undergoing an irretrievable breakdown during the time the husband spent the money, the court could not order him to reimburse the marital estate for the $9,000.

What evidence is required to show that the marriage is undergoing a irretrievable breakdown? Well, certainly, if the spouses are separated, or if one spouse has asked for a divorce, or if the spouses are estranged, then there is an irretrievable breakdown. But is estrangement or separation required? The Court of Appeals said no in Malin. However, the Court did not elaborate on what other kind of evidence might prove an irretrievable breakdown.

So how do you protect yourself? Well, first, try to stay involved in the family finances as much as possible. Be aware of what transactions are occurring. Second, if you feel your marriage is on the rocks, start documenting. Keep a diary of things that are happening and people involved. It will be easier for your attorney if you can show him a list of specific events and potential witnesses from three years ago showing that your marriage was over in all but name only. Third, make sure your attorney involves you in reviewing past transactions for potential dissipation of assets.

One final note: Dissipation of funds does not necessarily have to involve a third party. If your spouse is spending money hundreds of dollars each month at the casino by himself or herself, or on high tech gadgets for their own benefit, that can also constitute a dissipation. Bur remember, it is not enough to show a selfish purpose unrelated to the marriage. You must also show that the marriage was undergoing an irretrievable breakdown.

Tuesday, July 10, 2007

Nebraska Enacts Uniform Child Abduction Prevention Act

On February 2, 2007, Nebraska became the first state to enact the Uniform Child Abduction Prevention Act. The purpose of the Act is to help parents prevent the other parent from taking children out of Nebraska or out of the United States and refusing to return them. The Act went into effect immediately. Below are some basic questions and answers explaining how the Act works. If you have further questions, you can comment on this post or email me and I will answer them in this blog.

What does the Uniform Child Abduction Prevention Act do?

Briefly, the Act allows a person to file a petition to protect a child from abduction by seeking “abduction prevention measures.” The Act also authorizes a court to order such measures on its own and authorizes a county attorney or the Attorney General to seek a warrant for such measures.

Who can file a petition under the Act?

Any person who is a party to a court order of child custody or visitation can file the petition. You do not have to be the “custodial parent.” Also, any person or entity who would have the right to seek a court order for child custody or visitation may file a petition under the Act.

How much proof is necessary for the court to enter an order?

The court must find that there is a credible risk of abduction.

What does the court look at to decide whether there is a credible risk of abduction?

The court will look at the following factors in making its determination:

- Has the parent in question previously abducted, attempted to abduct, or threatened to abduct the child?

- Has the parent in question recently engaged in activities that may indicate a planned abduction, including:

(A) abandoning employment;

(B) selling a primary residence;

(C) terminating a lease;

(D) closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities;

(E) applying for a passport or visa or obtaining travel documents for themselves, a family member, or the child; or

(F) seeking to obtain the child’s birth certificate or school or medical records?

- Has the parent in question engaged in domestic violence, stalking, or child abuse or neglect?

- Has the parent in question refused to follow a child custody determination?

- Does the parent in question lack strong familial, financial, emotional, or cultural ties to the state or the United States?

- Does the parent in question have strong familial, financial, emotional, or cultural ties to another state or country?

- Is the parent in question undergoing a change in immigration or citizenship status that would adversely affect his or her ability to remain in the United States legally?

- Has the parent in question had an application for United States citizenship denied?

- Has the parent in question forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a Social Security card, a driver’s license, or other government-issued identification card or has made a misrepresentation to the United States government?

- Has the parent in question used multiple names to attempt to mislead or defraud?

- Is the parent in question likely to disregard a determination by a court of Nebraska to not recognize and enforce a foreign child custody determination?

- Is the parent in question likely to take the child to a country that:

(A) is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;

(B) is a party to the Hague Convention on the Civil Aspects of

International Child Abduction but:

(i) the Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country;

(ii) is noncompliant according to the most recent compliance report issued by the United States Department of State; or

(iii) lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction;

(C) poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;

(D) has laws or practices that would:

(i) enable the person in question, without due cause, to prevent the person seeking the order from contacting the child;

(ii) restrict the person seeking the order from freely traveling to or exiting from the country because of that person’s gender, nationality, marital status, or religion; or

(iii) restrict the child’s ability legally to leave the country after the child reaches the age of majority because of a child’s gender, nationality, or religion;

(E) is included by the United States Department of State on a current list of state sponsors of terrorism;

(F) does not have an official United States diplomatic presence in the country; or

(G) is engaged in active military action or war, including a civil war, to which the child may be exposed?

What if I keep the child in my custody to prevent my ex-husband/ex-wife from hurting my child and my ex files one of these petitions against me?

If a petition is filed against you, you will have to go to court to address the problem. However, at the hearing, the court will consider any evidence that you believed in good faith that your conduct was necessary to avoid imminent harm to the child or you and any other evidence that may be relevant to whether you may be permitted to remove or retain the child.

What will the court do if the judge finds that there is a credible risk of abduction?

The court will issue an abduction prevention order that may include one or more of the following:

- imposing travel restrictions that require that a party traveling with the child outside a designated geographical area provide the other party with the following:

(A) the travel itinerary of the child;

(B) a list of physical addresses and telephone numbers at which the child can be reached at specified times; and

(C) copies of all travel documents;

- prohibiting the person in question from directly or indirectly:

(A) removing the child from this state, the United States, or another geographic area without permission of the court or the written consent of the person seeking the order;

(B) removing or retaining the child in violation of a child custody determination;

(C) removing the child from school or a child care or similar facility; or

(D) approaching the child at any location other than a site designated for supervised visitation;

- requiring that a party register the order in another state as a prerequisite to allowing the child to travel to that state;

- with regard to the child’s passport:

(A) directing the person seeking the order to place the child’s name in the United States Department of State’s Child Passport Issuance Alert Program;

(B) requiring the person in question to surrender to the court or the attorney of the person seeking the order any United States or foreign passport issued in the child’s name, including a passport issued in the name of both the parent and the child; and

(C) prohibiting the person in question from applying on behalf of the child for a new or replacement passport or visa;

- as a prerequisite to exercising custody or visitation, requiring the person in question:

(A) to provide an authenticated copy of the order detailing passport and travel restrictions for the child to the United States Department of State Office of Children’s Issues and the relevant foreign consulate or embassy;

(B) to provide proof to the court that he or she has done so;

(C) to provide to the court an acknowledgment in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child; and

(D) to provide to the person seeking the order proof of registration with the United States Embassy or other United States diplomatic presence in the destination country, unless one of the parties objects; and

- Upon request, requiring the person in question to obtain an order from the relevant foreign country containing terms identical to the child custody determination issued in the United States.

The court may impose conditions on the exercise of custody or visitation that:

- limit visitation or require that visitation with the child by the person in question be supervised until the court finds that supervision is no longer necessary and order the person in question to pay the costs of supervision;

- require the person in question to post a bond or provide other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay for the reasonable expenses of recovery of the child, including reasonable attorney’s fees and costs if there is an abduction; and

- require the person in question to obtain education on the potentially harmful effects to the child from abduction.

Finally, to prevent imminent abduction of a child, a court may issue a warrant to take physical custody of the child and may direct the use of law enforcement to take any action reasonably necessary to locate the child, obtain return of the child, or enforce a custody determination.

I don’t have time to wait for a hearing. I’m afraid my ex is taking my child tonight!

If a petition contains allegations, and the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed, the court may issue an “ex parte” warrant to take physical custody of the child. “Ex parte” means the court can issue the warrant without first hearing from the person in question. If the court issues an ex parte warrant, the court must hold a hearing on the soonest possible court day. The warrant must recite the facts upon which the determination of a credible risk of imminent wrongful removal is based and must direct law enforcement to take physical custody of the child immediately. The warrant must also provide for the safe interim placement of the child pending further order of the court.

How long will an abduction prevention order remain in effect?

The order remains in effect until the earliest of:

- The time stated in the order;

- The emancipation of the child;

- The day the child turns 18; or

- The time the order is modified, revoked, vacated or superseded.

Sunday, April 29, 2007

Trusts and the Problem of Refinancing Your Home

If you are a homeowner with an estate plan that includes a revocable living trust, you likely intended for your house to go into the trust. Then, when you die, your house will transfer without the need for probate.

BUT - if you have refinanced your house after your estate plan was created, did you remember to put the house back in the trust?

If your house was in the trust before you refinanced, you would have had to pull the house out of the trust before getting your new mortgage. If you did not re-transfer the property back into the trust, then the house will still be subject to probate when you die. Probate is not necessarily a bad thing, but if the primary purpose of the trust was to avoid it, and then you take the assets out of the trust, you wasted your money.

Revocable trusts require regular review. The trust does you no good if you take assets out or forget to put some in.

Sunday, January 21, 2007

Factors in Determining Child Custody

If you are currently fighting or plan on fighting for custody of your child or children, what factors do you think the court will consider? How do you convince the judge that you you will be a better caretaker than the other parent? Here is a quick list of issues which you will should be able to address:

1. Love

Talk about how you show affection to your child/children, and, if suitable, how other parent does so (or does not)

2. Food preparation and types of food prepared

What are their favorite foods? What do they like? What do they hate? When do they eat? How often do they eat fast food vs food at home? If your spouse fills them with junk food, talk about that.

3. Routine – weekdays and weekends

You should be able to talk about when they get up and go to bed and any inherent difficulties, their involvement in activities outside the home, chores and hygiene routines, etc.

4. Education

What schools have they attended? What are their grades? Show report cards and talk about difficulties they are having, teacher conferences, open houses, etc.

5. Time spent with child or children

In what activities do engage with the children, e.g., reading, park, zoo, TV, etc.

6. Medical care

Who provides insurance for the child? Who are their doctors? Do they have their immunizations? Any particular health issues the child has? If child is on medication, does the other parent ensure child takes it regularly and on time?

7. Dental care

Who is their dentist? Who takes them to appointments? Also discuss records, current state of teeth, future work anticipated (e.g. braces)

8. Religious training

Do the children attend church? Where? How often? Who is their pastor, priest or rabbi? Who takes them to church? Are both parents same religion? Any obstacles to continuing the children in their faith?

9. Communication

Do the children openly communicate with you and/or other parent? Any difficulties in this area?

10. Provisions for child care

Who will watch the children while you are gone? How often are you gone? What are your expenses for child care?

11. Housekeeping

12. Child’s temperament

13. Child’s preferences as to custody and why

The courts usually will give weight to this factor only when the child is over the age of 12. However, it is important to know why the children, even younger ones, prefer one parent over the other. For instance, it can indicate that one parent may be bad-mouthing the other to the children, something to which courts do not take kindly.

14. Home condition and location – accessibility to parks, schools, churches, hospitals

15. Family in the area – grandparents, aunts, uncles, cousins, godparents

16. Physical description of family residence – rooms, yard, etc.

Remember, this is not just about bashing the other parent - it is about showing that you are an appropriate caregiver yourself. If your child or children have difficulties while in your custody, don't try to hide them from your attorney. Instead, be upfront about the problems so that you and your attorney are prepared to address them with the judge. After all, it is likely the judge will find out about the problems, and you don't want him or her to think that you are in denial about those issues.

Sunday, January 14, 2007

Proof that Amber Alerts Work

A West Point girl was kidnapped but then rescued less than six hours later, thanks to Nebraska's Amber Alert system. Someone seeing or hearing the alert called in a report, leading the State Patrol to the kidnapper and the girl.