A couple in Texas is considering filing for divorce to change their marriage status just so they can afford the medical bills of their six-year-old child.

Married for nine years, Maria and Jake Grey have arrived at the conclusion that a separation could be the most practical solution for their family. Their daughter Brighton suffers from a rare disease called Wolf-Hirschhorn Syndrome, a genetic disorder that causes delayed growth and development, impaired vision and hearing, seizures, heart problems, and kidney problems among others. The condition demands 24-hour care and expensive medical bills.

The Greys reportedly spend as much as $15,000 per year out of their pockets (representing 30 percent of their income) on Brighton’s health care needs—that’s on top of their health insurance. Because Jake, an army veteran, pulls in around $40,000 annually, the Greys are unable to qualify for Medicaid.

But there’s a solution, albeit a drastic one. If the couple were to divorce, Maria’s marriage status would change to a single, jobless mother of two, which, in turn, would make her eligible for state assistance. And while the family has tried to apply for state assistance in the past, they would be part of a huge backlog of tens of thousands of people, most of who have waited several years for relief.

This kind of financial planning is by no means new. The expansion of Medicaid under the Affordable Care Act (also known as Obamacare) provided health care coverage to all kinds of adults. In particular, it helped couples where one spouse was healthy and the other sick, ensuring that the sick person’s health care would not bankrupt the couple of their assets or make it difficult to keep their health insurance.

And so, some couples would seek a “Medicaid divorce” or a “medical divorce,” separating legally so that one partner could enroll in Medicaid and the other person could still keep their assets, whether it’s the family home, the car, or retirement. This option certainly has its appeal—it’s a vast improvement over drawing down on your home equity or retirement accounts until they run out.

Usually, couples who have filed for a Medicaid divorce stay together and continue to care and love one another—the divorce was only on paper. Still, this plan would still involve spending money and possibly cause family unrest. There’s also uncertainty as to whether a court would even approve this kind of divorce strategy.
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The Tax Cuts and Jobs Act of 2017 (TCJA) will have sweeping effects on how individuals and businesses file their taxes in 2019 and onwards, with ramifications affecting even family law. If you’re in the middle of a divorce or are considering one, it may be in your best interest to wrap up your separation this year as the federal tax code could affect the tax liabilities of divorcing spouses.

Tax codes are already complicated enough—the last thing you want is to deal with tax issues and divorce at the same time, which is why it’s important to steer clear of complications while you still can. Below are more reasons to act this year and minimize the tax pain from the TCIA.

Reduced Alimony Taxes

Spousal maintenance will undergo significant changes in 2019. At present, alimony payments are deductible by the paying spouse and taxable to the receiving spouse. This means that receiving spouses can pay lower taxes by reporting alimony as income, while payors can deduct it from their tax returns. This is important, because the tax deduction can save as much as 50 percent in taxes for high-earning individuals in high-tax states.

Going forward, however, alimony will neither be deductible by the supporting spouse or taxable to the receiving spouse. This might seem like good news to the recipient, but this will likely have the effect of hurting the supporting spouse, resulting in less alimony paid. With the new tax law, the government intends to raise more than $6 billion in taxes over the next decade—that’s over $6 billion less in the pockets of divorced spouses.

By finalizing your divorce in 2018, the tax rules for alimony payments will remain as-is for the duration of your agreement. And even if you modified your divorce agreement in the future, your deductibility and taxable status will not change unless stated otherwise.

Higher Taxes on Your Home

The family home tends to be a hot-button topic in many divorce situations; the new tax law will only make discussions on what to do with the family home after a separation more complicated. For starters, the law reduces the deductibility on property taxes, as well as the amount of mortgage that can qualify for interest deduction. This has the effect of making homeownership more expensive.

Selling your home will also be more expensive. While married, you can accrue up to $500,000 in capital gains without tax consequences. When single, however, this amount falls down to $250,000. In other words, you need to decide whether to sell the home before finalizing your divorce.

Prenup and Postnup Agreements

Couples who have signed a pre-nuptial or post-nuptial agreement should take the time to review their agreements this year as the law may end up rendering some points they have agreed to moot. For example, alimony provisions affected by the new law may necessitate a re-negotiation.
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The Supreme Court has ruled that a Minnesota law that revoked a former spouse’s insurance beneficiary designation after divorce does not violate the contracts clause of the U.S. Constitution when applied to a life insurance policy before the law’s enactment. Justice Elena Kagan and seven other justices sided with the adult children of a deceased Minnesota man in their majority opinion in Sveen v. Melin. Justice Neil Gorsuch dissented.

Case Background

In 1998, Mark Sveen of Minnesota named Kaye Melin, his wife at the time, the primary beneficiary of his life insurance policy. The couple divorced nine years later, but Sveen never removed his ex-wife from his policy.

In 2002, Minnesota amended its state probate law to include insurance designations in the “revocation-on-divorce” statute, making it one of the 26 states that have adopted such laws, which are based on a 1990 amendment to the Uniform Probate Code. As Justice Kagan pointed out, the law assumes that failure to change an insurance beneficiary after a divorce is likely caused by inattention instead of intention.

According to the amendment law, the dissolution or annulment of a marriage rescinds any revocable beneficiary designation made by a person to that person’s former spouse. Sveen passed away in 2011, four years after separating from his spouse, who was still the primary beneficiary on his life insurance policy. The problem is that Melin and Sveen’s adult children, both filed claims for the policy’s proceeds.

While a federal judge ruled in favor of the children, a three-judge panel in the Eighth Circuit reversed the decision last year, arguing that retroactively applying the 2002 amendment to Minnesota’s revocation-upon-divorce law to Sveen’s life insurance policy violates the U.S. Constitution’s contracts clause, which prevents a state from meddling with contractual agreements.

According to U.S. Circuit Judge William Benton of the Eighth Circuit panel, what is most important are the policyholder’s rights and expectations, not the interests of the beneficiary.

High Court Steps In

Sveen’s children, however, took their case to the United States Supreme Court, arguing that Melin was automatically removed as a beneficiary on their father’s life insurance when the 2002 law was applied to the policy. The High Court reversed the Eighth Circuit ruling in an 8-1 decision.

“Three aspects of Minnesota’s law, taken together, defeat Melin’s argument that the change it effected ‘severely impaired’ her ex-husband’s contract,” Justice Kagan wrote. “First, the statute is designed to reflect a policyholder’s intent—and so to support, rather than impair, the contractual scheme. Second, the law is unlikely to disturb any policyholder’s expectations because it does no more than a divorce court could always have done. And third, the statute supplies a mere default rule, which the policyholder can undo in a moment.”

What About in Texas?

Texas Family Code § 9.301 states that when you divorce your spouse, your spouse’s beneficiary status on your life insurance is automatically revoked. There are, however, three exceptions to the rule:

The divorce decree indicates the ex-spouse as a beneficiary
The person intentionally adds the divorced spouse as a beneficiary after the divorce
The former spouse receives life insurance proceeds because he or she acts as the legal guardian of the children
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Much has been said about the short-term impact of a divorce on your emotional and mental well-being. What many divorcees and people about to file for divorce fail to consider, however, is just how bad a divorce can be for their retirement readiness.

According to a report from the Center for Retirement Research at Boston College, half of American households are at risk of being unable to maintain their desired standard of living during their retirement years. The risk is worse for divorced spouses—higher by 7 percentage points.

The reason is simple, if you think about it. Couples benefit from economies of scale when they’re married, combining their incomes and splitting the costs of housing, food, and utilities. Many divorced spouses, however, are unprepared for the financial shock of continuing their standard of living now that they have a smaller income stream. This strain on their finances can also affect their ability to save for retirement.

What About Alimony?

Alimony, or spousal maintenance or spousal support, has long been the financial lifeline for many divorce spouses, allowing them to maintain some aspects of their desired standard of living. Alimony is paid by the higher-earning spouse to the lower-earning spouse, ensuring that the latter can still support himself/herself after ending the marriage.

It used to be that the supporting spouse, or the person paying alimony, could deduct this expense from their gross income for tax purposes, while the spouse receiving alimony is required to report it as income. In some instances, the higher earning spouse’s tax savings make it possible for him/her to pay more alimony.

But this could all change with the Tax Cut and Jobs Act, which removes the ability for spouses divorcing in 2019 and beyond to claim a tax deduction from alimony payments. Likewise, people receiving alimony can no longer report it as part of their income.

This has the effect of slashing the amount of money the higher-earning spouse can pay as alimony, raising the risk of the receiving spouse finding himself/herself in a worse financial situation. If this happens long enough, the receiving spouse’s ability to retire in comfort could be compromised.

Financial to Prepare for During and After Divorce

To protect your retirement readiness, there are a number of financial strategies you can look into:

Investments – if you’re a person receiving alimony, receiving a smaller amount could place you in a lower tax bracket (alimony is no longer reportable as income), which in turn, means you may qualify for a 0% tax rate on your capital gains. During property division, you can use this to your advantage by negotiating to receiving investment assets instead of the marital home. This should help you stay in a better position to retire with cash in your pocket.
The family home – Keeping the marital/family home in a state with high property taxes may be more disadvantageous in light of the new tax law, which limits state and local tax deductions at $10,000 a year. You may be better off renting a smaller home and claiming the new larger tax deduction. If you’re in your senior years, you can take out a reverse mortgage to use your equity and buy a new home.
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While the unique characteristics of a couple and their separation means that no two divorces are ever the same, many couples still make a few common mistakes when separating from one another. Whether you’re in the middle of a divorce, or still contemplating one, try to keep the following common divorce mistakes in mind to avoid unnecessary complications.

Settlements that Don’t Anticipate Future the Events

One of the primary objectives in a divorce settlement is to divide marital the assets equitably, which requires a valuation of your assets and understanding each spouse’s current circumstances. But in many divorces, spouses can make the mistake of focusing too much on the present, failing to anticipate what could happen in the future.

Remember, what seems fair now may put you in a difficult situation in the future, especially when it comes to events like job loss, disability, changes in your health or your children’s health, or a depreciation in your assets. Bottom line? When negotiating a settlement, always take into account things that may happen in the future.

Unrealistic Expectations

Lifestyle changes are an unavoidable aspect of any divorce. Even if you were somehow able to negotiate to keep the marital house, get child custody and child support, and even receive spousal support, you need to be ready to make financial trade-offs in your life after marriage.

This might mean dialing back on your monthly spending, nixing the lavish annual vacation to the Bahamas, or postponing your plans to reward your teenage daughter with a car when she turns 18.

Not Paying Attention to the Details

The devil is in the details when divorces are concerned—more so if the divorce is of a complicated or contentious nature. Many would-be divorcees are often caught unaware by how exhausting the divorce proceedings can be, and how it often entails revealing details of their life they may not be comfortable sharing.

At the same time, you and your attorney need to gather volumes of data to support your claims during negotiation—something that may continue even after the finalizing the divorce. For example, if your splitting the costs of raising your children, you may be required to keep a record and share:

Tuition expenses
Doctor’s visits
Transportation
Miscellaneous living expenses

“Uninsured” Marriages

And by uninsured, we mean marriages without a prenuptial agreement. Although prenup agreements often have a negative stigma, they are a practical and realistic backup plan for protecting your interests and assets should the worst happen.

Prenups aren’t just for wealthy couples because they can help regular spouses stay together, helping them understand the repercussions of breaking up.
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When a marriage ends in divorce, it’s necessary to settle a number of issues concerning different types of property. Things can get especially tricky when individual retirement accounts (IRAs) are involved. In this case, it pays to know how to transfer an IRA properly—failing to do so could lead to a host of adverse consequences, not to mention tax headaches.

Common Questions About IRAs and Divorce

If you’re going through a divorce, or are about to go through one, you probably have these questions about IRAs:

What happens to assets like IRAs?
How are they divided?
When transferring or splitting funds in an IRA, who is responsible for taxes?

According to Section 408(d)(6) of the Internal Revenue Code, the transfer of a person’s interest in an IRA to his spouse or former spouse is done under a “divorce or separation instrument” and is a non-taxable transfer.

For qualified retirement plans, on the other hand, when a transfer is made to a former spouse after a divorce, the person’s interest in the plan at the time of the transfer is considered an account of the former spouse.

In other words, the spouse who transfers retirement assets is not liable for any taxes or penalties from future distributions. The spouse who receives the assets, however (i.e. when the plan becomes their own IRA), will be responsible for taxes and penalties from future distributions.

Are All IRA Transfers Tax-Free?

But not all IRA transfers are automatically tax-free. According to the Internal Revenue Service, spouses must present a number of documents, as defined in Section71(a)(2) of the IRC:

A final decree of divorce
A decree of “separate maintenance”
Or a document or written instrument incident to such decree

A decree of divorce is also known as a “judgment of dissolution.” A divorce decree may also come with an order to divide the IRA as part of the judgment or at any other after the judgment is entered.

How to Transfer an IRA

Although the process of transferring an IRA looks simple on paper, it is still complex enough that if you were to miss one technicality, the transfer can still trigger income tax. This is why having a divorce attorney by your side is so important.

In any case, a transfer of an IRA can be done in one of two ways:

Transferring a fixed amount or percentage of one spouse’s IRA to the other spouse’s IRA.
Setting up a new IRA to which the will be transferred

Remember that if any retirement funds are cashed out or distributed and then paid to the spouse or ex-spouse, the IRS will see this as a taxable event to the original IRA’s owner. In other words, it is crucial that any transfer of IRA funds is conducted as an actual transfer—not a distribution.
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Anyone who has ever gone through a divorce knows that when a child custody battle is involved, the gloves tend to come off. Anything can and will affect the outcome of the child custody case—that includes factors like age, location, income, parenting ability, and relationship with the child. And if the child is a baby, this adds another layer of complexity to your case.

But what if one parent is breastfeeding the baby?

As is often the case with child custody cases in Texas, the answer to this questions rests on several factors. What’s clear, however, is that the complex nature of child cases highlights the importance of working with an experienced Texas child custody attorney as soon as possible. When a child is under three years of age, the Court will consider the following before finalizing a parenting plan for a child under the age of 3:

– The Status Quo – who previously provided care and/or the amount of contact between parents and child
– Any Expert Opinions – how the child will be affected by separation from either party
– Current Family Dynamics: the availability and willingness of parents to personally care for the young child
– Co-Parenting Relationship – the ability of the parties to share in the responsibilities, rights, and duties of parenting, how well the parents get along.
– The Child’s Individuality – child’s physical, medical, behavioral, and developmental needs
– Your Personal Relationships – the impact and influence of individuals, other than the parties, who will be present during periods of possession
– The Family Unit – The existence of siblings
– Geographic Considerations – how close or far apart the parents live (the geographic distance between parents)
– The adaptability of the child – whether a transition schedule is needed to help the child adjust
any other evidence of the best interests of the child.

Specifically, with breastfeeding, How Are Child Custody Cases Involving Breastfeeding Decided?

All states encourage the divorcing spouses to arrive at their own child custody arrangements, provided it’s in the best interests of the child/children.

In the case of a breastfed child, the parents may come to an agreement that lets the father visit the child but allows for breaks where the mother can come in to feed the baby every few hours or so. Alternatively, the mother could agree to pump breastmilk so the baby can stay with the father for longer periods of time. This is something more feasible as the baby gets older (and much more difficult with an infant).

Again, parents are free to negotiate visitation and parental arrangements as they see fit so long as it is what’s best for the child.

Does Texas Consider Breastfeeding in Child Custody Cases?

Because each state determines their own child custody laws, different states will have different views on considering a breastfed baby’s situation when approving custody agreements. States like Maine, Michigan, and Utah have laws that specifically require judges to consider whether a child is currently breastfeeding or of a certain age requiring sustenance and nutrition from breastmilk when determining parental rights and responsibilities.

Texas, on the other hand, does not have any such laws. But the Texas Family Code, however, does specify that unique consideration must be given to custody cases involving children below the age of three (as stated above). In other words, the court may exercise its discretion to decide what is best for infants when making an initial custody order. And because of the unique needs of the baby, the court will issue another order, which will take effect when the child turns three.

This also means that a judge’s decision can be swayed by how well the mother or father can argue their case for getting custody of the baby.

For example, in a custody battle, a mother can use the argument that breastmilk is best for babies, so she must have primary custody of the baby—at least until the baby turns three. On the other hand, the father’s attorney can argue that it is in the best interest of the baby to develop healthy attachments to both parents, and that awarding exclusive custody to the mother would inhibit the father’s right to bond with the child.

Cases involving babies can be the most challenging. New parents not only have to get used to adjusting with their new baby and becoming parents but also with co-parenting in less than ideal situations.
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As the biggest change to the federal tax code in decades, the Tax Cuts and Jobs Act of 2017 (TCJA) will have a sweeping impact on how much individuals and businesses will have to pay the tax man. But what many people don’t realize is how the TCJA will also directly affect the world of family law, particularly divorce.

Although the TCJA’s provisions technically took effect on January 1, 2018, those that involve the taxability and deductibility of alimony/spousal maintenance will only apply to divorce and separation agreements after December 31, 2018. So, it might be in the best interest of anyone looking to file for divorce to weigh the risks and benefits of separating this year, while the tax changes have yet to take effect.

Here’s what you need to know about these new tax rules.

Alimony Payments

Alimony or spousal maintenance is a common solution to a disparity in the income of divorcing spouses, ensuring that the spouse with the lower income can continue a decent standard as part of a settlement or as ordered by a court.

Under Section 215 of the tax code, alimony payments used to be deductible by the supporting spouse.

Here’s where the TCJA changes things:

Section 11051 of the TCJA removes Section 215 altogether.
Alimony payments are no longer tax deductible by the supporting spouse, nor will they be considered as income to the recipient spouse. The TCJA removes such payments from the definition of gross income under Section 2016.
Moreover, income for alimony and spousal payments will be taxed at the higher supporting spouse rate instead of the previous lower rate of the recipient spouse.
Alimony payments will have the same designation as child support payments and will not be tax deductible by the supporting spouse nor taxable to the recipient spouse.

The TCJA’s new alimony provisions apply to:

Any divorce or separation instrument accomplished after December 31, 2018
Any divorce or separation instrument accomplished on or before December 31, 2018 and modified after the deadline, provided the revision uses language to comply with the new alimony provisions

Tax Deductions

In situations that allow for the deduction of alimony payments, the supporting spouse, who belongs to a higher tax bracket, will receive a deduction higher than the amount the recipient spouse, who belongs to a lower tax bracket, will pay on alimony as taxed income.

In other words, the after-tax net savings will only be available to the supporting spouse.

Other things to remember include:

Changes to alimony taxability and deductibility will directly impact the total net income of former spouses bound by child support guidelines.
The courts, family law attorneys, and mediators will have to consider the net income of each spouse to determine the appropriate amount of alimony and child support payments.
If you are in the middle of a divorce, you can file your taxes in one of two ways. If you are still married by December 31 of the tax year, you can file as married or married filing separately. How you choose could make a significant dent on how much taxes you will have to pay.
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When Texas parents get divorced, it is not unusual for one or both spouses to move to another city, state, or even country to begin life anew. Issues may arise, however, when one parent wishes to bring the child who is bound by an existing child custody order.

Under the Texas Family Code, a divorced parent’s ability to move with a child depends on the existing custody arrangement established after the divorce. So, before you make any decisions about relocating with your child, it’s imperative that you understand the basic factors and rules of child custody in Texas.

What Is the Custodial Arrangement?

While Texas law recognizes many types of custodial arrangements, the most common setup is joint custody, also known as joint managing conservatorship. The reason is simple—the Family Code assumes that awarding both parents with shared custody of the child/children is ultimately in their best interests, unless of course there is a proven history of abuse and violence in the family.

If the divorced parents are able to come up with a joint managing conservatorship agreement on their own, they may file a parenting plan stipulating the details of their agreement in court. Normally this parenting plan will also specify the child’s place of residence, which can be a specific geographical area in Texas, such as a particular county or any contiguous counties.

If the parents are unable agree on terms, the court may intervene and determine a custody arrangement that is in the best interests of the child/children. In many cases, the court’s custody orders will place restrictions on a parent’s ability to move with a child.

It’s for this reason that settling out of court with the assistance of a skilled Texas divorce attorney is important, as it gives you some control over the terms of the custodial arrangement.

What If There Is a Need to Relocate Outside the Agreed Place of Residence?

A parent can’t just pack up and move with their child outside of the agreed geographical area in their custodial agreement without first notifying the court. Under Texas law, the parent who wishes to move must seek a child custody modification from the court to change the initial custodial arrangement.

What’s more, even if the original parenting plan or custodial arrangement does not restrict the child’s residence to a specific area, a parent can’t just relocate with the child without informing the other parent. The other parent can file a motion to challenge the relocation and can even file a temporary restraining order until a hearing can be held.
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Although much has been said about the emotional and mental turmoil brought about by a divorce, there’s not a lot of information on just how damaging it can be to your finances. Sure, you’ll occasionally hear about the professional athlete or celebrity driven to bankruptcy because of ridiculously high spousal and child support payments. But things like debt, property division, and credit during a divorce don’t get the attention they deserve.

In truth, a divorce can have a significant impact on your credit score, which in turn, affects your ability to take on a loan, open a new line of credit, or refinance an existing loan. The good news is that there are ways to protect your credit during and after a divorce. Below are four steps to do just that.

Check Your Credit Report

Run a credit report during the divorce proceedings and double-check every credit card or loan item in your report. You might have a credit card under your name you’re unaware of with a balance owed that should be settled in the divorce process. Ideally, you want to close all joint accounts before finalizing the divorce to insulate your credit score from any spending activities.

Close Joint Accounts or Remove Your Name from Them

For loan accounts that can’t be closed right away, such as your mortgage or car loan, be sure you and your spouse agree on how to divide these debts.

When it comes to the family home, the cleanest thing to do is sell the property and use the proceeds to pay off what’s left of the mortgage. If your spouse insists on keeping the family home and shouldering all subsequent mortgage payments, remember that late payments will still affect your credit score.

The lender only cares about whose names are on the mortgage, regardless of their marital status. In other words, your liability for shared debt doesn’t go away after a divorce.

Apply for a Personal Credit Card Before Finalizing the Divorce

A credit card under your name can be a lifesaver for a spouse with no income after the divorce. To get circumvent the problem of having no income or not enough income to qualify for a credit card post-divorce, you can apply just before finalizing your separation. This way, you can leverage your spouse’s income to meet the credit card company’s requirements.

Evaluate Your Cash Flow Needs in the Future

High interest rates on credit cards will make it a challenge to pay off credit card debt with just one source of income after a divorce. It’s a good idea to consult a divorce financial planner to assess your cash flow needs and determine how much debt you can realistically keep. It may be in your best interest to sell off assets to pay your debt or create a settlement to pay off credit card debt.
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