Category: alimony

Can I Get Temporary Maintenance While the Divorce is Pending?

Can I Get Temporary Maintenance While the Divorce is Pending?

You have just been served with divorce papers.  You’re world is crumbling down around you.  You have been a stay-at-home parent for years and now you are staring down the likelihood of trying to reenter an unforgiving job market. You feel like someone has just struck a match to your entire world.  How will you be able to support yourself and the children?

We have previously discussed maintenance but we have never really delved into temporary maintenance.  Temporary maintenance is just that, maintenance that is temporarily ordered to be paid while the divorce is pending.  Temporary maintenance is awarded in situations where there is a need by one party and the other party has the ability to pay.

A request for temporary maintenance begins with filing a motion with the court requesting temporary maintenance.  This motion must be accompanied by your last three pay stubs or income information if you are self-employed.  Obviously, if you are unemployed, you can skip this step.  The motion must also include an affidavit detailing your monthly expenses and income and, finally, information about the income of the party from whom maintenance is sought.  This financial affidavit is vital to your success.  Estimating your monthly expenses too low will have you struggling by the end of the month.  If you estimate too high, you will lose credibility with the court.  It is imperative that you work closely with your attorney to develop this affidavit as accurately as possible.  The motion itself, is an opportunity for you to lay out to the court the factual basis for any special relief that you may also be seeking such as service on the marital debt.

Unlike post-judgment maintenance in which the court has to take into consideration the division of marital property and debt before making the determination, the court primarily looks to each party’s income, living arrangements in making a temporary maintenance decision.  The length of the marriage and lifestyle the parties enjoyed during the marriage also come into play.  The fact that a stay-at-home mother can temporary live with family while the divorce is pending may not be persuasive on a judge.  There is an old case in Kentucky in which the Court of Appeals said that a wife should not be reduced to the standing of a “scullery maid” simply because she is getting divorced.

Some things to keep in mind in dealing with temporary maintenance.  The first is that temporary maintenance is not appealable in Kentucky because it is not part of a final order.  Likewise, just because it is ordered (or denied) at a temporary hearing does not necessarily mean that the court will not change its mind at the final hearing.  Therefore, you can either strengthen your case or destroy it in the interim between the temporary hearing and the final hearing.  Finally, the court has broad discretion in whether to award temporary maintenance and whether to continue it as part of the final judgment.

Photo courtesy of torbakhopper

Can I Deduct My Attorney Fees From My Divorce?

Can I Deduct My Attorney Fees From My Divorce?

It is possible in some limited circumstances.

Let me preface this article by saying that I am in no way a tax expert and you should consult with your tax advisor on your specific situation.

With that being said, yes, attorney fees for a divorce can be deductible.  Attorney fees, along with other litigations costs, are only deductible to the extent that they are incurred to produce taxable income.  For example, if you incurred attorney fees to secure an award of maintenance and that maintenance award is taxable as income, which it generally is, then you can deduct a portion of your attorney fees and litigation costs.  Likewise, if you incurred attorney fees to modify a maintenance award, you may be able to deduct your fees.

Conversely, since child support is non-taxable, you can never deduct your attorney fees incurred to pursue a child support claim or modification.  However, you can always go through your local county attorney office for free child support enforcement assistance.

Other areas where attorney fees in a divorce may be tax deductible include fees incurred to secure a portion of a spouse’s retirement account, since the account payments will be taxable when they are withdrawn.  If the retirement account was generated with taxed income and is not taxable upon withdrawal, then the fees are probably not deductible.  You may also be able to deduct your fees if they were incurred to secure things like rights to patents, royalties, and other similar assets that will generate taxable income for you.

The right to deduct your attorney fees is not total.  The attorney fees can be deducted as miscellaneous itemized deductions.  Sorry, if you take the standard deduction you are out of luck.  Additionally, the fees are only deductible to the extent in which they exceed 2% of your adjusted gross income.

As you can see, this is a very complex area and I would reiterate that you should never try to deduct your attorney fees without first discussing it with your accountant.  Your accountant may want you to request a letter from your attorney to specifically designate what portion of the attorney fees were incurred to produce taxable income because such a letter or other statement will likely be required by the IRS if there is ever a dispute.  Since many attorneys move their files to storage upon completion of the case, the sooner you ask for that documentation, the better.

Photo courtesy of Ken Teegardin

Can A Maintenance Award Ever Be Modified?

Can A Maintenance Award Ever Be Modified?

Yes.  However, this was not always the case in Kentucky.  We have previously discussed the issue of maintenance and how it might be established.  But once it is established, what happens if the payor has a sudden downturn in his finances?

Kentucky courts, if they award maintenance at all, will award either permanent maintenance (i.e. until death or the recipient remarries/cohabits with someone) or “lump sum” maintenance.  Lump sum maintenance is a bit of a misnomer in that what it refers to is a situation where the maintenance award can be reduced to a lump sum, but it actually paid out in installments over time, for example $500 per month for a period of thirty-six months.  Lump sum awards are by far much more common. The problem was that until the past few years there was a Kentucky Supreme Court case that had ruled that lump sum maintenance awards were not modifiable.  That case was finally overturned in 2011 in the case of Woodson v. Woodson.

The Woodson case makes all maintenance awards modifiable where a showing of changed circumstances is so substantial and continuing as to make the maintenance award unconscionable.  This only makes sense given the fact that the statute allowing for modification or termination of maintenance has not made a distinction between permanent or lump sum maintenance and, in fact, says “any decree respecting maintenance” can be modified.  I suppose the court decided that the word “any” truly meant “any.”

Keep in mind that from my experience, the Woodson decision has only been applied to a modification of a maintenance award.  I have not seen and do not think it is likely that a court would come back after a decree is entered and then award maintenance based on a post-decree change in circumstances.  That being said, I have seen more than one case where a previously higher wage earner suddenly pleads poverty during the divorce and claims that his/her business has taken a sudden downturn once the divorce was filed.  In those situations, I have seen the court order maintenance of as little as one dollar per month for a period of thirty-six months with the idea that if the business of the obligor suddenly improves, the recipient would have standing to come back to court and ask for a modification/increase.  To my knowledge such rulings have not yet been tested at the appellate level.

With this ruling even if maintenance is awarded, it may not be locked in. If you have been hit with a maintenance award and can show that the award is no longer equitable and is now actually unconscionable, you may be able to finally get some relief.

Photo courtesy of Johan Kuno

Does My Spouse Have a Right to My Medical Records?

Does My Spouse Have a Right to My Medical Records?

If you are involved in a custody case or possibly even a maintenance case, the answer is yes.  Although as a general rule medical records are private, once you put your health at issue, you have effectively waived that privacy right.  Your spouse’s attorney can then force you to produce them through the discovery process or subpoena them directly from your medical provider.  Under Kentucky’s Family Court Rules of Practice and Procedure you can be required to sign an authorization for the release of such information to the opposing attorney.

Your physical, mental and emotional health is always at issue anytime you ask the court to make a determination of child custody.  Moreover, if you are seeking maintenance and claiming that your health in some way inhibits your ability to work and earn a living, then you have made your physical health a factor for the court to consider and essentially given the other side the right to snoop through your medical history.

If this becomes an issue in your case, you should talk to your lawyer about your concerns.  This is not a time to be shy or to keep things from your attorney if there are potentially dangerous or embarrassing things in your medical history.  Your lawyer may be able to file a motion with the court to limit the information that the other side can get or to prevent it from coming in altogether if it is not actually relevant to a case.  If your lawyer knows all of the facts of the situation he can better advise you on how to proceed and protect your interests in court.

Photo courtesy of Seattle Municipal Archives

Don’t Email (or Text, Facebook, or Tweet) While Angry!

Don’t Email (or Text, Facebook, or Tweet) While Angry!

We’ve all been there.  You get an email or text message that really makes you angry and you want nothing more than to fire right back.  After all this person has just insulted you, or hurt you, or even threatened you.  That fight or flight instinct kicks and before you know it you have typed out a scathing reply that cuts the sender to the quick, possibly even questioning his/her parentage and/or intelligence.  Before you hit the “send” button, stop and think.

We have previously discussed how things you post online or share electronically can be used against you in a divorce and custody case.  It is even more common for emails and text messages to be used in divorce and custody proceedings.  Oftentimes, those messages are written in the heat of the moment and things are said (typed?) before the writer has given much thought or much less tried to cool down.  It creates some cognitive dissonance for a judge when someone is trying to portray themselves as a paragon of moral virtue and the opposing attorney has copies of emails and text messages in which that person is swearing like a drunken sailor.

Other problems arise when written communication becomes the only means of communicating between parents.  As this article points out, the nuance of the English language is lost in written communication.  You lose tone of voice, a great deal of context and most definitely body language, so it is imperative to be clear in your communications to avoid mixed signals.  I represented a father one time and he and the mother of his children insisted on only communicating by text message.  It was terrible.  These two could not get along to save their lives and if anything could be misconstrued it was going to be.  I begged him to pick up the phone and call her on occasion before flying off the handle.  It is no telling how much each of them spent on attorney fees simply because they refused to communicate effectively.

Finally, these messages often wind up containing very damning evidence that can totally torpedo your case.  Why give your opponent the ammunition?  I have had cases where people admitted to affairs, drug use, theft, abuse, and abandonment of their children in texts and emails.

Before you hit the send button, use the same test used by the Office’s Dwight Shrute.  Stop and think.  Take a deep breath.  Ask yourself some questions.  Would you want this read in court?  Would your attorney advise you to send this message?  How is this going to help you and your children in the long run?  Remember don’t type angry.

Photo courtesy of RA Torsten Kellotat