Tag: maintenance

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

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

Is My Spouse Spying On Me?

Is My Spouse Spying On Me?

Probably.  If you are in the middle of a divorce or custody case, you should at least assume you are being watched to prevent you from doing anything you would not later want used against you in court.  What about actual spying?  The fact is, it happens all the time in these cases.  You may feel like it is tinfoil hat type stuff reserved for people with paranoia, but over the years I have seen this happen over and over again.

In one particularly hostile case, we hired a private investigator to inspect a client’s house.  He found enough stuff to equip James Bond.  There were cameras hidden in the house, taps on the phone lines and even a recorder hidden underneath her house.  The husband, who was living a few miles away at his mothers, would go over to the house when he knew she was gone and retrieve the tapes from under the house.  It was crazy.

In another case the husband “just happened” to show up at the same place as his wife.  He would even sometimes send her text messages that obviously showed he knew where she was.  This was unnerving to say the least.  It turns out he had a tracker on her car as well as tracking software on her phone.

So how do you know if your spouse is spying on you?

  • The first thing is assume that your spouse is spying and behave accordingly.
  • Watch out for strange changes in behavior like “coincidentally” being at the same place you are.
  • Listen for clues in texts and conversations that your spouse has been watching you.  People often are not that smart and many times tell on themselves.
  • Does your phone or computer start acting strange?  Is it suddenly running slower or do there appear to be new programs that you do not recognize?
  • Does the home phone make an odd buzzing or clicking noise?
  • Has your spouse suddenly started buying things for the house?  Cameras and microphones can be hid in numerous places, e.g. new furniture, knick-knacks, picture frames, etc.  I knew a private investigator who carried a recorder that was built into a pen to record conversations.
  • Do you share an iTunes account?  If so, you can track anyone else who shares that account with the Find My iPhone App.  There are similar methods with Android phones and there are other apps specifically designed to track people that can be surreptitiously installed on someone’s phone.

So what do you do if you think your spouse is spying on you?  It usually involves hiring someone to check things out.  Often a private investigator or other security consultant can inspect a home or car for bugs or other electronic devices.  A computer expert can scan your computer and hand-held devices for malicious software.  Also check the credit card bills and bank statements for unusual purchases.  Most of these types of devices are bought off of various websites or even Amazon.com.  The important thing is that if you suspect it is happening, do not ignore it.  Talk with your attorney and make a plan for it.  Remember, just because you are paranoid does not mean they are not following you.

Photo courtesy of Mike Mozart

Jennifer Lawrence & Other Celebs Learn – Your Photos Are Never Completely Private

Jennifer Lawrence & Other Celebs Learn – Your Photos Are Never Completely Private

You have zero privacy . . .”
Scott McNealy, then CEO of Sun Microsystems

The latest photo scandal for Jennifer Lawrence, Victoria Justice and other celebrities illustrates an important point to remember in your divorce or custody case.  Your photos and your information are never as secure as you think they are.

I previously discussed the fact that your Facebook and other social media can be used against you in court.  Nevertheless, people often feel much more secure having their own “private” stash of photos, videos, etc.  These “private” images almost certainly will not remain “private” once a civil suit is filed.  If anonymous hackers are able to seemingly routinely get their hands on private photos of celebrities, how much easier will it be for someone close to you (i.e. a spouse or lover) to figure out a password or supposedly secret hiding place?

Unless you wind up with a child as a result of a one night stand, most likely the person on the other side of your divorce or custody case kno
ws you quite well.  Most likely, they can guess your password to your phone without a lot of effort or they know that supposedly super-secret hiding place you use.  Those will be some of the first places they look to dig up dirt on you.

In the years I have been handling divorce and custody cases, believe me I have seen people who felt the need to record, write about or photograph some pretty bizarre things.  The relevance of these depends on the facts of the case and may actually be of dubious value from a litigation standpoint.  However, their value for settlement negotiations can be immeasurable when the writer, video star or photo subject really, really does not want them released into the public record.  The value of these can go up exponentially if you are seeking maintenance and have already started a new relationship and decided to “document” it.  Why put yourself at risk?

Anything that is photographed, written down or recorded has the potential to be used against you in court.  So before you decide to be a star in your own movie or you decide the world needs photos of you in your unmentionables (trust me, we don’t), ask yourself if you would want your grandma to see it.  Unless your grandma looks like this, in which case you should just cut to the chase and decide if you would ever want a judge to see it when deciding if you are a good parent.  The best advice is simply to keep your privates private.

Photo courtesy of Amy Wilbanks