Ms. Hess has been selected by her peers for inclusion in the 2014 Best Lawyers in America Publication. Best Lawyers is one of the leading referral guides in the legal profession. Ms. Hess will be listed in the Washington D.C. and the Baltimore's Best Lawyers special advertising supplement in the The Washington Post, The Baltimore Sun, The New York Times, and all local editions of The Wall Street Journal on Friday, September 27, 2013.
Hess Family Law is proud to be one of the sponsors of the 2013 Preparing For Success Fall Forum.
The “Preparing for Success” Fall Forum is an all-day conference, designed to provide useful and practical information for high school girls headed for college and the workplace. The Montgomery County Women’s Bar Foundation designed, planned and has offered this program every November, beginning in 2001. The program offers workshops that address interviewing, resume writing, career choices, getting into college, and a section on helping young girls stay safe while in high school and also on the internet. The entire day is free of charge. Co-sponsors include the Montgomery County Commission for Women, the J. Franklyn Bourne Association, the Maryland Hispanic Bar Association, Montgomery College and Montgomery County Public Schools.
You can register here for this free program.
Julie and Pete are in their mid 50’s and have decided to divorce. Both are worried about the affect a divorce will have on their retirement. Julie fears that she may not be able to afford to retire and Pete has concerns that he may have to push retirement back several years. Both wonder if there is a way to divide their retirement assets with a minimal amount of financial damage. Marilyn Timbers, in her article 4 Divorce Mistakes That Can Derail Retirement, raises four issues that may affect Julie’s and Pete’s retirement after divorce.
Should Julie give up her interest in Pete’s retirement in exchange for keeping the marital home?
Often times a spouse believes it is better to keep the house rather than receive a portion of their spouse’s retirement. However, this is not always true. Julie needs to consider the cost of maintaining the home as well as its future value. If Pete’s retirement plan is well diversified, Julie may be better off receiving the retirement income. It is also important for Julie to consider the tax consequences of receiving either asset before signing an agreement.
Are all retirement accounts the same? How are the accounts impacted by taxes?
Pete believes that it is fair for each of them to keep their own IRA accounts because they have the same value. Pete has not considered the tax implications of this arrangement. While both accounts may have the same value, his IRA is a pre-tax account and Julie has a Roth IRA, a post-tax account. If they were to each keep their own account, the division would not be equal due to tax consequences at the time of withdrawal; Pete pays taxes at withdrawal and Julie does not. It is important for Julie and Pete to consider the value as well as the tax status of all of their retirement accounts.
If Julie needs cash should she take a withdrawal simultaneously with the rollover of retirement funds from Pete to her, or should she do it later?
Julie rolls her share of Pete’s 401(k) into her IRA immediately after divorce even though she needs cash to pay for divorce related expenses. If Julie withdraws funds from her retirement prior to age 59 ½ there is a 10 percent tax penalty; however since her share of Pete’s 401(k) is allocated to her under a Qualified Domestic Relations Order (QDRO), she is entitled to a one time opportunity to withdraw money from Pete’s 401(k) without owing the penalty. Once the rollover from Pete’s 401(k) into Julie’s IRA occurs, she will be subject to the ten percent penalty should she need to withdraw the funds early.
Should Julie decide to take all of Pete’s 401(k) in cash, rather than rolling over the funds into her own retirement account?
Although Julie has the ability to withdraw funds from her portion of Pete’s 401(k) without incurring the ten percent penalty, she should not withdraw more than she needs. While immediate cash will help Julie now, she may be sacrificing her retirement down the road. Julie needs to assess her current and future cash flow and determine how much she will need for retirement before she determines how much, if any, of Pete’s 401(k) she should withdraw rather than rollover into her IRA.
It is important for Julie and Pete to discuss these issues with both their legal and financial advisors before entering into an agreement with regard to dividing retirement assets.
Fall is in the air. Temperatures are dropping, leaves are changing and pumpkins are in abundance. For kids and many adults the best part of Fall is Halloween.
As a divorced or separated parent you may not get to be with your children on Halloween day or night. But that doens't mean you can't celebrate the holiday and the season. Now days there are so many events leading up to Halloween, and even afterward, that you can still celebrate and enjoy the festivities with your child. And, don't forget about fun at home seasonal activities.
My six year old son rides the school bus to school. He has been nervous about riding the bus. He has fears about what will happen if a responsible adult is not at the bus stop to pick him up in the afternoon. He is the only student at his bus stop, there are no other parents we can rely upon to help out if we are not at the stop. We've reassured him that the bus driver will not let him off the bus if his adult is not present. We've reassured him that the bus driver will take him back to his school, place him in after care and a responsible adult will pick him up from after care. We have cleared this plan with my son's bus driver. But, this is not the bus policy in the Montgomery County, Maryland public school system. If you children go to public school in Montgomery County, Maryland, read on about the county bus policy.
In July 2013, Governor O’Malley authorized a commission to review the current Maryland child custody system and to make recommendations for reforms to provide better outcomes for children and their families. The Commission is comprised of attorneys and legal leaders in Maryland such as Judges, Delegates, Senators, and Psychologists.
Currently Maryland does not have a statute that lays out the factors to be considered when making child custody decisions. Instead, Judges must rely on case law. The Commission will analyze how custody decisions are being made and study how to make them more uniform and fair.
Divorce Tips to Keep you on the Right Track
Newly separated people are often overwhelmed with anger, sadness, and the complexity of the issues in their divorce case that they make mistakes. A recent article by Michelle Rozen, The 5 Worst Mistakes People Make During Divorce, lists these mistakes and tips that may help you make the right decisions and keep you on track during your divorce.
1. Be Informed: The biggest mistake people often make is not knowing all of the facts. You cannot make informed decisions if you do not understand your rights and options. A good way to learn your rights and options is to consult with a family law attorney. Many times parties shy away from an initial consult because they falsely believe that this will commit them to the divorce process. Learning about the process upfront before things have progressed will help you avoid costly mistakes down the road.
2. Be Aware of What is Happening in your Case: You need to need to make informed decisions with your attorney. Do not let others make decisions on your behalf because you are not in a position to face the issues. At Hess Family Law, we suggest that you have regular contact with your attorney, and that you open mail received from your lawyer in a timely manner. Another way to stay informed is to check the court computer for any upcoming court dates.
3. Never Act out of Anger: It is very easy for a disgruntled spouse to have revenge on their agenda. But acting out of anger will not always get you the results you desire and may cost both of you in the long run. It is better to keep drama to a minimum and focus on the facts. If you are finding it difficult to handle your emotions, seek the assistance of a therapist. Don’t use the courtroom to deal with those emotions.
4. Don’t Settle for Less than You Need or Deserve: Make sure you understand as best you can what your expenses will be post divorce. Try not to settle for less than you need or agree to pay more than you can afford. A good attorney can assist you in negotiating a settlement that is fair and reasonable, and if negotiations fail, your will be better prepared for trial.
5. Don’t Lose Yourself: If you feel yourself becoming overwhelmed take a moment to breath. Surround yourself with experts, such as a family law attorney, therapist, and a financial planner, that can help guide your through the divorce process. With a bit of planning you can make good decisions, no matter how bad things may look.
For more divorce tips to keep you on the right track read "Don't Make These "Biggest Mistakes" in the Resources Section of the Hess Family Law Website.
Are My Legal Fees Deductible?
Many clients wonder if the attorney fees they have incurred during their divorce are tax deductible. Generally, the IRS says no. According to Internal Revenue Code (IRC) § 262 (a), personal, living, or family expenses are not permissible deductions. Therefore, a spouse may not deduct attorney fees incurred in connection with a divorce or separation because these matters are considered to be personal. However, there are exceptions to this rule.
Legal fees in connection with advice regarding alimony qualify as a legitimate legal fee deduction. Why? IRC § 212(1) allows a deduction for expenses incurred for the production or collection of income. Therefore, those legal fees attributable to obtaining alimony or incurred to collect alimony arrears are deductible. However, attorney fees incurred by a spouse to defend an award or collection of alimony are not deductible.
Another legitimate deduction is for expenses related to tax advice. IRC § 212(3) allows deductions for all ordinary and necessary expenses paid or incurred during the taxable year in connection with the determination, collection, or refund of any tax. In the context of a divorce case, this means advice regarding transfer of property; dependency exemptions; characterization and treatment of alimony obligations; and income, estate, and gift tax consequences resulting from a trust to discharge an alimony obligation are permissible deductions to the taxpayer who incurs these expenses.
If you are planning to deduct some of your legal expenses, your attorney will need to determine what portion of their bill relates to deductible advice and provide an itemized bill. Otherwise, your legal fees will likely not be considered legitimate deductions by the IRS. Since tax laws continually change it is important to consult with your attorney and/or a tax professional for specific tax advice.
Spending Time with the Kids: 2013 Duck Splash Festival
Are you recently separated or divorced and looking for an activity to do with the kids that would be fun but not cost a lot of money? How about attending the 2013 Duck Splash Festival at Washingtonian Center in Gaithersburg, Maryland.
The event, to be held on September 28th from 11:00 a.m.-4:00 p.m., promises free activities and live entertainment. At approximately 3 p.m., 10,000 yellow ducks will splash into the lake. Anyone who adopts a duck ($5) will be entered for a chance to win great prizes. All proceeds benefit Arc Montgomery County which supports children, youth, adults, and families affected by intellectual and developmental disabilities.
If you attend, don’t forget to take lots of photos so that together you can relive and discuss the memories you made together.
A new school year can be stressful for any family, but it can be especially stressful for a family when parents are newly separated or divorced. Questions may arise such as: Whom does the school call first if there is a problem? Who pays for school supplies? Do you need school supplies in both households? What activities will your child participate in? Some of the answers may be addressed by your Court Order or Agreement, but if you do not have one, or even if you do, there may not be clear answers.
Many experts agree that divorced or separated parents should be on the same page when it comes to their child’s school. The most important things parents should do are communicate, coordinate, and cooperate. For some this may be easy, but for others this can prove to be difficult, especially if your divorce was not amicable.