Attorney Daniella Deseta Lyttle of Lyttle Law Firm, PLLC, was featured in the March 2021 Edition of Women to Watch!
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Divorce is a difficult decision for everyone. Divorce is an especially hard choice for couples when one or both of the spouses are immigrants. According to Asian Journal, the good news is that there are four ways in which divorce can actually help immigrants obtain their green card.
Married daughters and sons of US Citizens
For immigrants who seek legal permanent resident (LPR) status based on a family-sponsored preference (F3) by a parent who is a US citizen – and based on being a daughter or son who is a married 21-year-or-older daughter or sone – there is normally a long time to wait for approval depending on your country of origin. In some cases, it may take decades before your application is reviewed. Your application’s priority date is typically the date your US citizen parent(s) filed your petition.
For the most part, it doesn’t matter who files a Texas divorce case – you or your spouse. You both have the right to assert your rights and defenses. These rights and defenses include contesting the grounds for divorce, the division of the property, spousal support, child custody, and child support.
The benefits of filing first are mostly psychological and procedural. Each case is different. An experienced Texas family lawyer will explain the pros and cons of being the person who files the divorce case.
The psychological benefits of filing first
People with a 401 (k) may consider taking money from their accounts for many reasons. Struggling to make ends meets during the COVID-19 pandemic is one reason. Another reason is that they’ve separated from their spouse and need the funds to survive.
A 401 (k) is a defined contribution plan where employees contribute funds each year to a retirement plan. The employer may provide matching amounts. The advantage of a 401 (k) is that you don’t have to pay taxes on the income until you withdraw the money. Often, withdrawing money later in life means you’re in a lower tax bracket than when you contributed, so you save on federal taxes by postponing the withdrawal.
In Texas, all property acquired during the marriage is considered marital property unless there is a pre-nuptial agreement or a post-nuptial agreement. Marital property does not include property either spouse owned before the marriage. Marital property does not include property acquired during the marriage if the parcel was obtained – by a gift, through a will or estate when someone dies. Marital property doesn’t include a personal injury recovery unless the recovery is for loss or earnings (while the accident victim was married).
The pandemic is affecting the desire for a divorce, the ability to obtain a divorce, and the issues that need to be resolved – in many different ways. A recent article in D Magazine analyzed the many different ways the pandemic is changing divorce in America.
Divorces in Texas are still being filed and resolved during the pandemic. Mediators and collaborators are still working to settle cases. It takes more time to obtain hearing dates in Texas as criminal trials have priority, and safety precautions need to be taken before cases can be heard. Many cases are being heard virtually instead of in-person.
The Texas Supreme Court states that current possession orders in divorce cases should be followed. Lawyers are being asked to keep the status quo as much as possible.
The laws on divorce, property division, child custody, alimony, and child supports haven’t changed due to the pandemic – but the needs of spouses, parents, and children have changed dramatically. A lot of the need for modifications of existing orders and the new requests for divorce depend a lot on the financial ability of Texans to weather the storm and the comfort levels of each spouse.
Courts are generally hesitant to change existing orders if the pandemic is likely to end within a year.
Some of the ways the pandemic is directly affecting family law issues are:
- Grounds for divorce. One example of a practical change is that living apart for three years, one of the grounds for divorce, is more difficult because people are hesitant to move due to finances and the need to interact with movers and other people – to change locations.
- Child support. It’s harder to enforce child support payments by holding parents who don’t pay in contempt. Contempt means time in jail, and jails are having some of the worst COVID-19 outbreaks.
- Child custody/conservatorship. The parent with primary conservatorship is being required to make more decisions than usual.
The Pros and Cons of Virtual Divorces
Practically, most divorce hearings and negotiations are being handled virtually. Zoom is the primary technical medium.
In Texas, according to a Texas family lawyer, “It’s not uncommon now for me to have a three-day trial or several hearings in one day all on Zoom.” With Zoom, lawyers and clients don’t need to wait their turn to be heard. Mediators and judges have been able to adapt reasonably well.
Other lawyers appreciate how well Zoom works – but still think face-to-face hearings are better. In-person, the closeness and stress of a hearing can help forge settlements and help confront spouses who aren’t credible. Virtual trials can make it difficult to see the people testifying for or against a client and to ask them credibility questions and cross-examine them. With Zoom, you can’t see if a client is being coached through text messages or in some other technical way.
Some aspects of remote divorce proceedings may continue even after the pandemic because remote communications help cut down on legal and court costs.
How the COVID-19 Health Crisis is Affecting the Resolution of Divorce Issues – Such as Child Custody, and Child Support
The pandemic is forcing more decisions to be made about child custody and support. Deciding when to divorce and how to divide property often can generally wait longer because they don’t affect life on a daily basis.
Some of the Texas conservatorship issues that are affected by COVID-19 include:
Child custody and visitation. Many schedules do need to be modified – either amicably or through the court process. Modifications are necessary because children are staying home more (during school hours and after school hours). Some of the pros and cons of raising children during the pandemic are:
- Parents are finding it challenging to obtain daycare services during the pandemic.
- It simply isn’t as easy for the parents to exchange their children due to safety concerns.
- Many parents need to stay home to monitor their child’s remote learning.
- On the plus side, many parents are getting closer to their children because they’re spending so much time with them.
Child support. Some parents have lost their jobs due to the pandemic crisis. Losing a job is a proper reason for seeking a modification of a child support order.
Some couples are fighting more because of the pandemic for different reasons:
- Sometimes being in the same home 24/7 makes it hard to find escape valves for releasing tensions.
- Spouses may discover that the other parent isn’t willing to take care of the children.
- Spouses may discover that the husband or wife can’t handle stress well.
- For some spouses, the close quarters only makes clear that the marriage isn’t working.
- Different parents may have different ideas on their children’s education and social activities during the pandemic.
- Marriage counseling is continuing online.
How Lawyers are Trying to Help Spouses and Parents During the Divorce
Lawyers are trying to help couples with marital difficulties by clarifying what their lives will look like during and after a divorce – so they can better decide whether to work through the pandemic issues or seek a divorce. Family lawyer help spouses and parents by explaining:
- How the divorce process works;
- What issues need to be resolved;
- How the resolution process works;
Some of the mechanisms family lawyers are using during the pandemic are:
- Informal settlements;
- Encouraging more flexibility;
- Reducing the number of exchanges of children;
- Collaborative divorces (which use a team approach with financial and mental health professionals), are working well during the pandemic – because the core idea behind the collaboration is to work out solutions instead of focusing on confrontation. Mediation is also a valuable divorce resolution tool.
In 2017, National Defense Authorization Act (NDAA) made a radical change to the way states divide the military pensions of divorcing spouses. Before the NDAA, states had the discretion of dividing pensions of divorcing military personnel as they saw fit. Now, the federal government has not only imposed significant restrictions, it has also changed the military pension division rules of 45 states.
Historically, these states divided military pensions using the Time Rule Formula as stated under the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982. The formula has been the source of criticism in the past because it allows the ex-spouse to benefit from any increases in rank and time-in-service pay of the military member long after the couple ended their marriage.
Let’s suppose a couple divorces while the military member spouse is an Army Captain with four years of service—all through which the couple were married. Under the old rule, the divorce court could award the service member’s wife 50 percent of his pension and base the corresponding dollar amount not on the husband’s rank at the time of the divorce (i.e. Captain) but the rank at the time he retires. Let’s assume again that spouse rises to the rank of Army Colonel and retires after 20 years of service. Even if the service member divorced his spouse 16 years ago, she would still collect the retirement benefits the Colonel earned with 20 years of service.
Moreover, this award was irrevocable. Even if the military service member were to remarry and stay married to another spouse for the next 20 years, the first spouse would still be entitled to half of his military pension.
The NDAA, on the other hand, implements what’s known as the “Frozen Benefit Rule,” rewriting the USFSPA and stating that a service member’s rank and number of years spent active are “frozen” at the time of the divorce. So, using the same example above, the new rule would limit the share of retirement benefits the non-military spouse can collect to 50 percent of the service member’s pension as a Captain with four years of service. It cannot be based on the total value of his pension at the time that he retires with a higher rank and more time-in-service pay.
This rule, however, is not retroactive, applying only to divorces finalized after the NDAA was signed into law.
What Does This Mean for Military Divorce in Texas?
Nothing. The frozen benefit rule is already in effect in five states, namely Florida, Kentucky, Oklahoma, Tennessee, and Texas. The NDAA applies to all military personnel in the service, including the Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and Atmospheric Administration (NOAA), and Public Health Service’s Commissioned Corps.
As 2019 rolls in, divorced individuals will have no choice to but to bid farewell to alimony tax rules that have been around for decades. Under a new tax code—made possible by the Tax Cuts and Jobs Act (TCJA) of 2017—that takes effect on January 1, alimony payments will no longer be considered tax-deductible for the spouse paying alimony and taxable income for spouse receiving spousal support. These new rules take effect after December 31, 2018 and will not affect existing divorces and separations.
Overall, it looks like spouses will end up pocketing less cash from alimony payments, whether they’re the ones paying or receiving money. But there are ways to make up for this.
Tax Benefits from Selling the Home
If you are getting divorced and thinking of keeping the family home, see if you can qualify for any tax benefits. The best option might be to sell the home to take advantage of a capital gains tax exclusion of up to $250,000 if you’re single and up to $500,000 if you are still married and filing jointly. So, it may be in your best interest to sell the property before the divorce is finalized.
Take Advantage of Child Tax Credits
Under the new tax code, the Child Tax Credit (CTC) amount awarded to parents will see a significant bump next year, raised to $2,000 per qualifying child—up from $1,000 under the current rules. So, if you’re negotiating for child custody, you can use plan ahead and use the CTC to offset alimony taxes.
And this part is important. If you are the parent of three children under the age of 17 and make $100,000 as a divorced spouse (the CTC is unavailable to individuals making $200,000 a year and couples earning more than $400,000), you qualify for $6,000 of tax credits. This makes the CTC more powerful than a tax deduction as it reduces your tax bill dollar-for-dollar.
Consider this situation: You’re a mother of three who owes the $4,000 to the IRS for the previous tax year. But you also qualify for a tax credit of $2,000 for each of your three children, which means you no longer have to pay last year’s taxes.
Look to Other Payment Methods
Spousal maintenance payments don’t have to be in the form of traditional alimony. For example, couples can consider property division payments instead of alimony.
If the couple’s marital estate is worth $2 million, they can agree for one spouse to pay the other $1 million in staggered payments. The benefit? Property division payments are non-taxable.
But this option isn’t perfect either. If the spouse paying property division files for bankruptcy, the property division payments could very well go away. In contrast, alimony payments are not dischargeable in bankruptcy.
What if You Beat the December 31 Deadline?
To be honest, if your divorce proceedings began during the last few months of the year, you’re probably too late. For example, if you had filed for divorce in November, it’s very likely you won’t get a judgment until next year.
While it may seem farfetched to say that social media is the direct cause of broken relationships, according to a 2013 study published in the published in the Journal of Cyberpsychology, Behavior and Social Networking, individuals who spend more time on Facebook are more likely to “experience Facebook–related conflict with their romantic partners,” which could then lead to a divorce.
Speaking with Vox, divorce attorney James J. Sexton notes that social media is a huge factor in a growing number of divorces and separations, adding that he can’t remember a case where social media was not the cause or, at the very least, implicated in some way. The pattern with social media, he says, is consistent: spouses maintain affairs on sites like Facebook or communicate with people they know they shouldn’t.
In other words, Sexton believes that social media has made infidelity easier than ever.
But there are other, subtler, reasons why social media can be dangerous to marriages.
Jealousy and Anger
If you’re in a relationship, you’ve probably, at some point, felt jealous about your partner’s behavior on social media, whether it’s because of the content they ‘like’ on Facebook or Instagram, or their interactions with other people.
And for what it’s worth, your suspicions may not be completely unreasonable, as one survey notes that one in ten adults admits to hiding messages from their partners. Furthermore, eight percent of adults in relationships admit to keeping a secret social media account.
These threats are so real that 14 percent of adults scour their significant other’s social media profiles for signs of impropriety and other questionable behavior.
Excessive Facebook Use
But it’s not just what people do on social media that causes conflict in relationships, it’s also how much time they spend online. More and more people are reporting that their partner’s excessive time spent on social media has negatively affected their romantic relationships.
A study, published in Computers in Human Behavior 22, compared divorce rates between states to Facebook accounts per capita and found a connection between time spent on the social networking site and a decline in marriage quality. In fact, a 20 percent increase in time spent on Facebook over a year was associated with a 2.18 percent to 4.32 percent increase of divorce rates.
The study’s model derived from the individual survey results also predicts that people who avoid social media are up to 11 percent happier in their marriages than people who are on social media all the time.
Social Media Only Complicates Existing Problems
Others, however, argue that social media isn’t so much the cause of separations, as it as a platform that amplifies known issues in marriage, such as distrust, infidelity, and jealousy among others.
Even under the most amicable circumstances, getting divorced can be tough—more so if you have children. Even if you think your separation is for the best, your children may not see it that way. It’s not surprising then why research tells us that the best way to protect the well-being of your children during a divorce is to keep the process as low-conflict as possible.
For some parents, the solution that works for them is “nesting,” sometimes called “birdnesting.”
What Is Nesting?
Nesting is the practice where parents keep the family home intact and rotate living with their children. This also means that both parents take turns living in separate residences when they’re not “at home” with the kids.
The idea behind nesting is that it ensures that the children’s lives continue to be as normal as possible. They don’t have to be uprooted from their home and they still get to spend time with both parents. But while nesting sounds like a great thing on paper, there are serious issues that you should be aware of if you’re considering this arrangement.
Accounting, Property Division, and Spousal and Child Support
Nesting presents potential legal issues. For starters, some states may not consider spouses ‘divorced’ if they engage in the practice of nesting. This, in turn, could throw a wrench in the terms of their property division and child/spousal maintenance orders.
Another problem that may arise from sharing a home in a nesting arrangement is the issue of who owns the property. There’s going to be quite a bit of accounting to be done, including figuring how to share the mortgage and upkeep expenses, deciding who will take the mortgage interest deduction, and deciding tax liability when it’s time to sell the home.
You also need to consider just how expensive nesting can be. Aside from child support and alimony, you also have to deal with the cost of maintaining two separate residences, which can be too much, even for wealthy families.
It’s for this and other reasons that nesting should only be done on a short-term, transitionary basis. Anything beyond six months will be impractical and may end up confusing the children instead of putting them at ease. It may lead them to believe that reconciliation may happen in the near future.
Only Works If Both Parents Are on Good Terms
Another reason nesting should be done on a short-term basis is because it can create opportunities for the kind of conflict that caused you and your spouse to divorce in the first place. If you can’t agree to set aside your differences and put the children first for a few months, a nesting arrangement will stand on shaky ground.
One of the more unexpected effects of going through a Texas divorce is one spouse losing his or her health insurance coverage once the divorce becomes final. Given how expensive healthcare is, it’s important to be mindful of this consequence after a divorce, especially if you are currently under your spouse’s health insurance plan.
If you’re presently employed, the most sensible thing to do is move to your company plan—premiums are low and deducted from your payroll, which means you also get a tax break. The appeal of company health insurance is why many at-home spouses seek employment or look for associations that offer group health insurance plans after a separation.
But what if you can’t do either? Below are a few options to choose from.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 allows individuals to keep their health insurance coverage for a specific period provided a qualifying event, such as a divorce, happens. COBRA is particularly useful for individuals who are part of their spouse’s company health insurance, as a divorce—no matter how amicable—automatically terminates the dependent spouse’s coverage.
This is where COBRA comes, applying to employer health insurance groups with at least 20 employees. If you are in the middle of a divorce, you can use COBRA to remain under your ex-spouse’s health insurance plan for up to three years. The key, however, is to fill up and return COBRA enrollment forms within 60 days of receiving an eligibility notice—missing the deadline forfeits this option.
State-sponsored Continuation of Healthcare Coverage
Texas and some other states allow individuals who are not eligible for COBRA or have exhausted their COBRA coverage to avail for of state-sponsored healthcare coverage continuation—a perk often called mini-COBRA.
In Texas, the following rules on coverage continuation rights apply:
Dependents can stay covered under their ex-spouse’s employer’s health plan for up to nine months if they are not eligible for COBRA.
Depends who have exhausted their COBRA coverage can seek state-sponsored continuation for six more months after their COBRA continuation ends.
When in doubt, check with your state’s department of insurance and the company’s human resources to go through the finer details of this setup.
Affordable Care Act (ACA)
You also have the option of buying individual health insurance under the ACA instead of going through a group-based plan. You can purchase your plan through the government exchange or off-exchange directly through a health insurance provider or broker. Either way, individual plans are guaranteed issued free of any underwriting or exclusions for pre-existing conditions. Benefits are also more robust than ever—a big reason behind why many people get healthcare coverage under ACA after losing group coverage.