Divorce, Dollars and Debt Facts and Tips
No Golden Years
For many divorced women, the so-called golden years of retirement can become a hard slog across the rocky terrain of financial hardship, if not poverty. A career homemaker who divorces in midlife often finds herself facing vastly reduced circumstances after a marital breakup. Indeed, anecdotal evidence suggests that some middle-aged women fear that divorce may become a one-way ticket to the poorhouse.
Pensions Can be Problematic
Pensions become problematic because, unlike cash in the bank or stocks and bonds, the rights to them involve 1) classification, 2) valuation and distribution, 3) qualified domestic relations orders (QDROs), and 5) miscellaneous areas of contention, including, for example, post-decree increases.
Many Models of Plans
Pension and retirement plans come in a bewildering array, with many diverse provisions; however, the two basic models are: the defined benefit or defined contribution. The defined benefit plan is generally a retirement annuity, wherein the employee contributes nothing and the employer sets aside benefits for all employees in a pool; the defined contribution plan is an individual or separate account in the employee-spouse's name, whereby he or she contributes pretax dollars to his or her account that are matched to a certain amount by the employer's contribution.
A Valuable Asset
Pensions and retirement plans often have significant value. The value of a typical pension benefit payable in the future can be deceiving. For example, a $2,000 monthly benefit payable for life beginning at age 65 can have a value of $100,000 to $200,000 for a person in his or her fifties today. Calculating the value of a pension demands an appraisal to compute its present value, which is the value of money over time.
The distribution of a pension normally requires a QDRO, which is a qualified domestic relations order that establishes the terms and conditions of payment to both the worker-spouse and his survivor or former spouse.
Women of all ages often go into divorces on a less equal footing than their husbands and, therefore, must pay particular attention to the long-term consequences of the division of the marital estate. Women, for example, may enter and leave the work force to the demands of child rearing, which lowers their contribution to their own pension plans (if they have them), and they may, for the same reason, juggle low-paying, part-time jobs that together yield a living wage but one without benefits and certainly no pension.
Pensions earned during a marriage are marital property and subject to division and distribution, but spouses, even professional couples, tend to defer to the husband's career because men still earn more than women. Many a homemaking woman faces a midlife divorce with only a sketchy understanding that her husband's pension may be their most valuable asset, and that she is entitled to a share.
The two largest assets that a middle-class couple divides in a divorce are the marital home and the husband's pension. Many divorcing couples do not realize that the pension benefits of a couple ending a long marriage may be worth more than the house they live in. A thrifty couple that lives in one house during their long marriage may have accumulated pension benefits greater than the value of their house. Moreover, the continuing decline of the housing market makes the value of the family home more problematic than at any time in recent memory.
Difference in Dividing the House and Pension
Many people quickly grasp the idea of dividing the marital house, but the importance of dividing the pension may not seem present since its distribution may be several years away. The custodial mother of teenagers may grab at the marital home as a solution to a short-term problem but forget that down the road her share of her former husband's pension will be more important than owning a house.
Good Legal Advice
The division and distribution of pensions often becomes very complicated, and these issues probably generate more appeals and reversals on appeal than any other issue in equitable distribution. Even some general practitioner lawyers may stumble facing the subtleties of pension law. One must learn how to ask the right questions when facing the distribution of pensions and retirement plans.
One of the most common ways to protect assets is a prenuptial agreement. Usually the wealthier spouse requests that the less advantaged spouse sign a contract that defines property rights and expectations upon divorce. The agreement normally waives certain spousal inheritance rights, establishes designated alimony, or even waives alimony. Courts usually respect such agreements if they are drafted properly. Older couples entering into second marriages frequently agree to prenuptial agreements as a way of protecting estates for children of the first marriage.
Keep it Separate
One way to protect assets is to keep separate property separate. The marital estate includes the assets acquired by either spouse during the marriage, and even if an asset is in one spouse's name, in a divorce it is subject to division between the spouses. Separate property, however, such as property owned prior to the marriage, inheritances, and gifts remain non-marital property and are not divided. However, separate property commingled with martial property loses its identity. For example, a paycheck deposited in a joint account, an inheritance used to amortize a mortgage, a gift invested in both names makes the property marital and subject to division.
Establish a Trust
Some divorcing couples preserve assets by establishing a trust. Neither spouse retains ownership when assets are placed in a trust. A trust is a great solution to assure these assets do not get tied up in the divorce proceedings. It assures that any future children either spouse has with another partner do not gain control of these assets. Thus the assets can be left to children, charities or other beneficiaries.
Maintain Credit Records
One spouse's debt can follow the other if the couple's credit report is based on joint credit cards and bank accounts. And when one spouse believes the other is going to file for divorce, it's not unusual for that person to incur credit card debt as payback. Therefore, it's a good idea to keep copies of credit card statements. By demonstrating a steady record of spending, a spouse can fight liability for outlandish debt incurred by the other spouse.
One of the best forms of asset protection is very simple: credit in one person's name alone, which should be checked from time to time to make sure there are not any individual blemishes.
Keep Good Records
One way to protect assets is good record keeping. It's wise to keep copies of every financial document available, including copies of 401(k) statements, life insurance policies, house appraisals, brokerage accounts, money market accounts and, of course, tax returns.
Separate Versus Joint Accounts
Many married couples now opt for separate bank accounts and one joint account. That routine, however, does not guarantee complete protection in case of a divorce. The income of separate accounts may be the property of both spouses, regardless of the name on the account, particularly if an individual account is used for marital purposes, for example, making a mortgage payment.
Revise the Will
Many people forget to revise wills, retirement accounts, and insurance policies to reflect a change in beneficiary. Although some states have statutory provisions to override the provisions of the wills of a divorced couple, when a spouse remarries and then dies without making any changes to his or her prior will or policies, any assets go to the person listed as a beneficiary, even if that person is a former partner.
Get on the Deed
One way to protect an asset is make certain of inclusion on a deed or title purchased with a spouse during a marriage. Many states assume that property purchased during a marriage is marital. Individual state laws vary depending on whether both spouses contributed money. Moreover, property in one name, such as a vacation home purchased before marriage, can also be considered marital property, if, for example, the spouses used it as a family getaway.
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DATE OF SEPARATION – Depending upon the laws of the state of residence, the Date of Separation – called the DOS – has a profound impact on the eventual division and distribution of property and debt, including credit, pension benefits, and other marital assets. As of the DOS, the separated spouses are now in limbo legally and financially and remain so until the actual Date of Divorce. A great deal of money may be at stake. For example, one spouse may share responsibility for any debts incurred by the other; the value of a retirement plan or other marital asset, such as residential property, may fluctuate, often by thousands of dollars.
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