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WHEN GOOD DIVORCES GO BAD: Three Things You Can't Afford NOT To Do Before You Divorce

1456675356476.jpgThe clouds literally parted and cast sunlight unto the Detroit skyline. I can't believe I'm divorced - that was easier than I thought it would be he said as we walked out of the courthouse together, newly signed divorce decrees in hand, humming the first few bars of Sunshiny Day.

You might not be signing songs. You might not be planning your first trip as ex-husband and ex-spouse, complete with new spouses and matching Hawaiian shirts. Heck, you might be counting the days before you can move out of your house, without your attorney yelling at you, with your stuff in tow and your ex left in the dust. But, your divorce was not the tragedy your buddies scared you into believing it would be, your ex and your ex's attorney did not drain every dime from you like friends threatened would, and you're divorcing with some money in your pocket and a decent size retirement account to boot. Overall, your divorce is good.

Good for you. But not so fast. If you're like most newly divorcing folks, there are three things you've probably forgotten to do that will make your good divorce go bad.

You Forgot the Tax Professional

Spend a little extra cash now and have your tax professional review your decree before you sign it. Tax law, like divorce law, is a specialized area of practice. It is also an evolving area of law, and you will want the most accurate, current information available. You will not offend your attorney, and, if you have a good attorney, your attorney will consult a tax professional with you. We want to make sure our clients take advantage of tax benefit and avoid tax consequences whenever possible.

If you do not, the consequences could be costly. Consider this. Transfers of property between spouses or former spouses incident to their divorce are generally tax free. See IRC 1041. This means the transferor spouse does not have to report a discharge of indebtedness, nor the transferee spouse income, for the transfer when filing the tax return for the year of the transfer. This does not mean, however, that there are no tax consequences. Under IRC 1041, the transferee spouse takes the transferor spouse's basis and holding period in the property. When the transferee spouse disposes of the property, the transferee spouse pays taxes on the entire disposition. This is, in a sense, a delayed tax. For example, if during the divorce each spouse agreed to be responsible for 50% of their stock's $50,000 appreciation, if this language is not included in the divorce decree, after divorce the burden is 100% the transferee spouse's.

The most important thing for you to do is plan ahead. Have you tax professional review the final draft of your decree before you sign it, and ask for a thorough assessment from a tax perspective. It is better to pay for these services now than to find out, ten years from now, that you have to report $50,000 of gain. The court will not listen to you complain that you did not anticipate the tax consequences. As the Michigan Court of Appeals said of an ex-husband making that argument, "His claim regarding unexpected income taxes is, of course, without merit. He either knew, or should have known, of the income tax consequences of his actions. . . ." Couzens v Couzens, 140 Mich App 423; 364 NW2d 340 (1985). [1]

You Forgot the Appraiser

Appraise your home and personal property - the couple bucks and a few hours' intrusion in your home could mean a couple thousand extra dollars in your pocket. Do not assume that a bad economy means your home has no equity - we've received appraisals indicating homes with equity of $60,000 and more. Moreover, every item of personal property has a value. Yes, in isolation the value may be small ($5 for all of the plants, $20 for the yard tools), but, combined, they add up! A fully furnished, three bedroom, two bathroom home with a family computer, a washer and dryer set and a tool shed would have, even at garage sale prices, between $5,000 and $10,000 worth of personal property. Half is presumably yours, possibly thousand of dollars you would have otherwise left with your ex. You may retain a local auctioneer or estate salesman to appraise that property in one afternoon for a few hundred.

You Forgot the Plan Administrator

Pension division is one of the most heated areas of contention in a divorce, right behind child custody. Invest in a good pension valuation now, and contact your plan administrator for sample orders and required language to divide that pension, so that you know how much and what you are working with. Ideally, your judge will sign the order to divide your pension right along with your divorce decree - otherwise, trying to prepare that tedious order after your divorce will have your divorce lingering on and on and on like a bad movie that never ends.

If you are entitled to a share of your spouse's retirement account and the account is ERISA-covered, do not rely on your decree to effectively divide it. ERISA applies to private tax-qualified pension, profit sharing, and stock bonus plans, including defined benefit pension plans, 401(k) plans, money purchase pension plans, and employee stock ownership (ESOP) plans, but not government and church plans unless those plans elect ERISA coverage. If ERISA applies to the plan, then the plan administrator cannot alienate and divide the account unless and only as provided in a Qualified Domestic Relations Order, which you have probably heard referred to as a "QDRO." A QDRO is a court order that creates or recognizes the existence of an alternate payee (your ex-spouse)'s rights to receive all or a portion of the plan benefits. The QDRO must also include, at a minimum, the name and the last known address for the payee and the alternate payee, the amount or percentage to pay the alternate payee, the manner of payment, the number or duration of payments and each plan to which the order applies.

This may seem simple, but the key is the phrase "at a minimum." Under ERISA, plan administrators may reject a proposed QDRO even after the court has signed it if it does not comply with ERISA or the administrator's requirements. As a matter of federal preemption, the plan administrator holds this power over your judge.

It is common for attorneys and plan administrators to go back-and-forth, for months, revising the QDRO to the administrator's liking. To avoid the time lost and fees incurred, be sure your attorney has contacted the administrator early in your case. Request sample QDROs from the administrator. Investigate all of the plan benefits. Are there early retirement benefits, for example, and will you be entitled to them? If so, what language do you need to include in your QDRO? Ask your attorney whether a QDRO preparation service will be more efficient and less costly than the attorney's work to prepare the QDRO. If possible, have the administrator review and pre-approve the QDRO before you submit it to your court for signing as an order. If you do not have an attorney, you will be responsible for these tasks.

In other words, for a few hours one day with your tax professional, an afternoon with your appraiser and a phone call and letter or two with your pension plan administrator, you could save yourself thousands.

And who wouldn't be singing Sunshiny Day after that?

[1] You should contact a tax attorney and/or your tax advisor for a thorough assessment of the tax laws applicable to you. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, be advised that any federal tax advice contained in this article was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Always consult a specialist for thorough tax advice.


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