In Virginia, alimony may be terminated if there is clear and convincing evidence that the spouse receiving spousal support (alimony) has been habitually cohabitating with another person in a relationship analogous to a marriage for one year or more, pursuant to Code of Virginia §20-109. This includes the cohabitation of same-sex couples.
Samantha Cucco and Michael Lutrell entered into a Property Settlement Agreement pursuant to which Michael Lutrell paid alimony to Samantha Cucco. Mr. Lutrell sought to terminate his alimony payments to Ms. Cucco when he learned Ms. Cucco had been cohabitating with her fiancé, another woman, for over a year.
Ms. Cucco argued that because her relationship was with another woman, she was not cohabitating pursuant to §20-109. In Luttrell v. Cucco, The lower court agreed with Ms. Cucco, stating that “cohabiting in a relationship analogous to marriage” does not include cohabitation by same-sex couples, and the Virginia Court of Appeals agreed. The Supreme Court held that the Court of Appeals erred when it concluded that same sex couples cannot cohabit for purposes of §20-109 and the case was remanded back to the lower court.
If you are seeking to modify alimony based on your spouse's cohabitation with another person, it is important to seek the advice of an experienced family law attorney. Contact Hess Family Law to discuss your particular situation and goals.
Tom returned from a contentious mediation session with his soon to be ex-wife Marta regarding custody of their two boys. Angry and frustrated, Tom vented to his “friends” on Facebook and tweeted negative comments about Marta. A week later he posted pictures of his new girlfriend and his boys despite an agreement with Marta that they would not post pictures of their children on social media. Mediation broke down, in large part because Marta no longer trusted Tom to keep his word. Through mutual friends and discovery, Marta was able to obtain Tom’s social media postings and used them as evidence during their trial.
It may seem like common sense, but if you are thinking about divorce, going through a divorce, or are divorced with minor children, you need to think twice before posting or tweeting on social media. Hess Family Law recommends suspending all use of any social media during the divorce process.
If you are not willing to suspend your social media usage, then at least take precautions when using social media by checking your privacy settings and limiting the people you don’t know from viewing your posts.
You should also limit what you post. If you bad mouth your spouse not only does it make it more difficult to reach an amicable agreement but it makes it more difficult to co-parent and you might lose the ability to share joint custody. One way to determine if a post or tweet should be sent is whether or not you would want your children to see it. If the answer is no, don’t post or tweet it.
Arguing your case on social media will not win your case and could damage it. While your post that highlights why you should have custody and why your spouse should not may garner you sympathy from your friends, it may also backfire if brought to your spouse’s or the court’s attention.
If your case is litigated, the Judge will look at objective and subjective factors when making a determination. Negative comments made on social media may not weigh in your favor because they may show poor judgment and poor decision making abilities, two qualities that are important for parenting and co-parenting. You may also appear as a bully, which will not weigh in your favor.
Ask yourself if your spouse could misinterpret a post. While it may seem harmless to you, will they feel attacked or find a way to use it against you? Also, resist the urge to check in or post every time you go out. Again, your spouse can use this as evidence against you.
If you have an agreement to not post pictures of your children on social media without your spouse’s consent, don’t do it. Violating the terms of an agreement, even if it seems minor to you, could have serious consequences. If your spouse or the court have evidence that you don’t follow court orders, or that you don’t keep your word, then your spouse may be awarded more of the responsibility because you are not reliable or trustworthy, or credible.
If you are concerned that your spouse may use your social media postings against you, the best thing you can do is take a break from social media while your divorce is pending. If this is not possible, then heed the advice above to minimize any negative impact your social media posts or tweets may have on the outcome of your case.
What happens if you file for divorce and properly serve the divorce papers on your spouse, but your spouse does not file a response with the Court within the required time allowed?
You are not stuck, you can still proceed to get divorced in the State of Maryland. You must file with the court a Request for An Order of Default, file an affidavit and proof stating that your spouse is not currenting serving in the armed forces. The proof can be obtained by visting the Department of Defense Servicemembers Civil Relief Act (SCRA) website, and print out your search results. Once the court issues the default you can then request a hearing for divorce and the process can proceed without your spouse. What happens if your spouse suddenly decides to respond and participate? The default is likely to be set aside and the case will proceed with both parties participating. The issues, especially custody and visitation, are so important that Judges don't like to proceed in divorce cases without hearing evidence from both spouses.
There are many reasons why people do not initialy respond to the divorce papers. Sometimes it is denial of the divorce, sometimes it is financial inability to hire a lawyer or figure out how to file without a lawyer, sometimes it is because a spouse is hoping that the matters can be resolved outside of court, with or without the use of an attorney or mediator.
People Magazine reports that although Gwenyth Paltrow filed for divorce on April 20, 2015 her husband, Chris Martin, did not file a response with the Court. Ms. Paltrow now has the option to request that the court proceed on a default judgment. In all likelihood this is a situation where Mr. Martin and/or Ms. Paltrow want to resolve their issues outside of court with their lawyers, mediators and business managers.
If you are recently separated or divorced it is important to maintain good credit. If you allow your credit score to fall you may have difficulty buying or renting a home, obtaining insurance, buying or leasing a car, or finding a job. So, what can you do to maintain or improve your credit especially when you may feel overwhelmed financially?
Amy and Curtis Arnold, in their Huffington post article, How to Improve your Credit Score After Divorce, have the following suggestions:
Establish New Credit: Closing joint accounts and establishing accounts in your own name is a good step toward maintaining good credit. Initially, your credit score might go down because you have less credit available to you, but if you reestablish credit, that dip should be temporary.
Review your Credit Reports: You are entitled to a free credit report every 12 months from the three credit reporting companies, Equifax, Experian, and TransUnion. Go to annual credit report, to request all three. Once you have the reports, carefully review them and determine which accounts are held in your name and which you are a joint holder. Sometimes a spouse opens an account listing you as a joint or authorized user without your knowledge, which is why it is important to review your credit report.
Pay Bills on Time: If you are considering paying bills late, or worse, not paying at all, you should reconsider. This action could be extremely detrimental to your credit. One missed bill payment or a late mortgage payment could affect your ability to purchase a home and/or open accounts in your own name down the road. If you think you might be late with a payment, contact the lender or creditor, explain your situation, and ask for an extension. While there is no guarantee that they will agree, if they do, your credit will not be damaged, so long as you pay according to any new agreed upon terms.
Work with a Family Law Attorney: Mr. Arnold’s article recommends working with an attorney who focuses on family law. Having an attorney who you trust and who can advocate for you is important at this time when emotionally you may not be able to make rational or reasonable decisions. If you and your spouse are not able to agree on finances, a family law attorney, such as Geraldine Welikson Hess at Hess Family Law, can help you review your options and seek assistance from the Court when necessary.
Educate Yourself: If you were not the spouse in charge of finances, now is the time to educate yourself. Read articles, talk to a financial advisor, and gather information. Knowledge equals empowerment.
Be Wary of Retail Therapy: Divorce can be emotionally difficult. Oftentimes people turn to retail therapy to ease their pain. However, this could lead to significant debt and/or depleting savings. Before making a purchase, determine whether you really need the item. Ask yourself why you are buying the item and think about how it will affect you financially down the road. You may also benefit by talking with your attorney and/or a financial advisor about the pros and cons of spending vs. savings while you are going through the divorce process. Taking a moment to consider options often leads to better financial decisions.
April 15th, the day you must file your tax returns or request an extension, is fast approaching. If you and your spouse separated during 2015, you may be wondering how to file your taxes. If you were not divorced on or before December 31, 2015, the IRS considers you married for 2015, even if you lived separate and apart for the majority of the year. Therefore, you must either file a joint tax return together or you each can file your own married, filing separately tax return. If you entered into an Separation Agreement that addressed how tax returns would be filed then your Agreement will dictate how to file. Absent an Agreement that addresses tax filings, then you likely have a choice whether to file jointly or married filing separately.
For many families, filing a joint return will result in the most tax savings for the family as a whole. However when it comes to cash refunds and cash flow, there may be reasons why it benefits some spouses to file married filing separately. Thus, it is important that you first consult any Agreement you may have, and then consult with your accountant and/or family law attorney to review your options. If you decide to file separate returns, be aware that only one parent can claim head of household and/or dependency exemptions related to the children. Therefore if you do not already have an agreement with regard to these issues it is important to communicate with your spouse just prior to or shortly after filing to avoid you both claiming the exemptions. If both you and your spouse claim the dependency exemptions you may be more likely to be audited. If you both claim the exemptions it is likely that the spouse who filed their return first will get the benefit of the exemptions.
If you file married filing separately, you and your spouse can later on decide to amend to file a joint return. If you file a joint return, you cannot later amend to file married filing separately. But be aware that if on April 15th you file for an extension, rather than filing your actual return, the act of an extension may later prevent you from amending your married filing separately return to a joint return. Before filing for an extension you should consult with your accountant for advice regading any impact the extension will have on your ability to amend your filing later on.
Your tax returns provide us with information about your income and the source of income, income producing assets, and your investments, as well as whether you over or under withhold taxes from your paycheck. This information enables us to provide better advice in regard to division of assets and payment of support. Review of your tax returns is an integral part of your family law case; the attorneys at Hess Family Law ask that you provide us with your past tax returns. How many years of returns will depend on the issues in your case, but almost always we want at a minimum the past three years.
We can obtain copies of tax returns through the court discovery process if you do not have them. Other ways of obtaining copies of your tax return may include asking your tax preparer to provide copies, or obtaining copies from the IRS. To obtain a copy of your previously filed and processed tax return with all attachments, including Form W-2, you should complete Form 4506, Request for Copy of Tax Return, along with a $50.00 fee for each tax return requested. You have to allow 75 calendar days for the IRS to process your request. Tax Returns are generally available for returns filed for the current and past six years. On jointly filed tax returns, either spouse may request a copy and only one signature is required.
Oftentimes we don’t want to wait 75 days for the tax return to arrive, and/or it is cost prohibitive to pay $50 per tax return. The solution may be to order a Tax Return Transcript instead of the actual Tax Return using Form 4506-T. You can request your tax return transcript online directly from the IRS rather than making a request by mail. For a short time the IRS allowed individuals to obtain immediate transcripts of prior tax returns, by online download. However, due to security measures the ability to download a copy of your tax transcript has been suspected. It should take between 5 and 10 days to receive your tax transcript through the mail. Click here to learn how to obtain your tax transcript.
If you have a child applying to college or currently in college then you have probably assisted them in applying for financial aid. There are two major financial aid forms: the Free Application for Federal Student Aid (FAFSA) and the CSS Profile. The FAFSA requires financial information only from the custodial parent, which for purposes of the FAFSA application is defined as the parent that the child lives with more than 50% of the time. This applies to students whose parents are divorced or have been separated for at least six months prior to filing the FAFSA application. However, if the custodial parent remarries, the stepparent’s financial information must be included for financial aid purposes. Additionally, any child support that a parent receives is considered income for both the FAFSA and CSS Profile.
Divorced or separated parents should note that most but not all colleges that require the CSS Profile expect the noncustodial parent to complete a noncustodial Profile form. Both the custodial and noncustodial parents’ income is considered. However, the total family contribution from both parents is usually slightly less than if the parents were still married, because colleges take into consideration the added cost of maintaining two households. If both parents income is considered by the college then a stepparent’s income is not usually included; however if the college only requires the custodial parent to report income and that parent is remarried, the stepparent’s income will also be considered.
If a 529 college savings plan is owned by the non-custodial parent, you may want to consider changing the account owner to be the custodial parent. A 529 plan that is owned by the custodial parent is reported as a parent asset on the FAFSA (worst case impact, a reduction in aid equal to 5.64 percent of the account’s value) but distributions are ignored. If the 529 plan is owned by the non-custodial parent, it is ignored as an asset, but distributions count as untaxed income to the beneficiary on the FAFSA (reducing aid eligibility by as much as 50 percent of the distribution). Having a 529 plan owned by the custodial parent will reduce the impact on eligibility for need-based aid.
Generally speaking, a child of divorced parents will qualify for more financial aid if the custodial parent is the parent who earns the lesser income. This may be a factor that parents want to consider when determing custody of their older almost college bound children. However, if parents live in different school districts and the children attend public school it may be suspect for the custodial parent to live in one school district and the minor child attends school in the non-custodial parent’s school district. Also, know that you may be asked to provide a court order demonstrating custody and/or a custody agreement so you need to make sure you take care of obtaining agreements and court orders before applying for financial aid. Attorney Geraldine Welikson Hess and Hess Family Law can assist clients with any initial or modification of custody needs.
While January has traditionally been the month when FAFSA applications can begin to be filed, starting with the 2017-2018 school year the FAFSA application can be completed as early as October 1st of the previous year. Click here for more information regarding changes to the FAFSA during 2016. If you have questions about the FAFSA or CSS Profile you should contact a financial aid expert or FAFSA directly.
Sources: Paul Bishop February 12, 2016 Want More Financial Aid? Get a Divorce
Emma Johnson September 9, 2015 College Financial Aid Advice for Divorced Families
When the rich and famous get divorced their divorce settlements usually involve millions. Slice.ca lists 20 of the costliest celebrity divorce settlements of all time. For example, according to The Guardian, media mogul Rupert Murdoch's divorce from his second wife Anna Torv cost him $1.7 billion. The Daily Mail reported that Mel Gibson’s wife and mother of their seven children received approximately $850 million as part of their divorce settlement. Wondering what other celebrities had to pay large settlements, click here.
Many of the celebrities cited in the article were married before they became rich and famous. Those that married after their financial success may have avoided some of the emotional and financial fallout of their divorce if they had entered into a Prenuptial Agreement prior to their marriage. It appears that all of these famous couples did enter into settlement agreements, enabling the couples to decide on the terms of their marital dissolultion rather than letting a judge decide the terms of their marital dissolution during a public trial.
Attorney Geraldine Hess, and Hess Family Law can assist clients with the negotation and preparation of Prenuptial Agreements or Settlement Agreements.