This is not a money management blog but what we increasingly find is that many divorce clients simply “trusted” that their resources would be sufficient to carry them through retirement. The great awakening comes when they discover they are now splitting what looked like a comfortable retirement and that their ability to make up for lost time has been lost amidst the sands of time.

So today, lawyers need to help clients be creative, and based on an article in the March 22 Wall Street Journal, there is reason to take a second look at a device invented a few years ago called the reverse mortgage. When first introduced, they were disparaged as a kind of sleight of hand trick. The number of them issued spiked just after the Great Recession but then eased off as the economy (or at least the stock markets) recovered.

A reverse mortgage is what it sounds like. You have equity in a home that is essentially a trapped asset. A reverse mortgage involves your pledge of that equity to a lender who gives you your own trapped money. The true economist would dismiss this as absurd. If you need cash out of your home, don’t pay anyone fees or anything else to tap it; just sell, downsize and take the cash from the settlement proceeds. That’s why economics is called the dismal science.

The problem with today’s older divorced couples is that they want everything to stay the same. Sure, it’s only you living in the house that once held three or four. But you like it, you like the neighborhood, and besides, moving means dealing with 30 years of accumulated things that you call treasures and your child dismiss as “crap” when they come for Thanksgiving.

I typically advise clients that they should at least consider downsizing. The response is the same. A longing look like I told them they need to put the dog down unless his health improves and either a testy “Maybe next year” or even more challenging “Must I?” In the end, we assess matters and give clients options. No pets have met their demise on my watch but I have told several clients that unless they reduce their housing costs in the near term, they may need to consider a shorter life.

Reverse mortgages can be a way to ease the pain. At their worst, people borrow them to speculate. This is pure foolishness. But the mortgage in reverse can be a very effective tool, especially to cover late life rainy days. The best example is a sustained down market. If you are retired and drawing $4000 a month while getting $2,000 in social security, when the market tumbled, your $4,000 is coming out of a measurable smaller pool. If you had $300,000 in retirement and drew $3,000 a month in January, 2008 you had  100 months of retirement assuming no increase in value and no inflation. Your draw was 1%. By late Fall, your $300,000 was now $150,000 which mean your pool had halved and your draws were 2% a month.  The market quickly shot back up to 11,000 but if the trough had been sustained and you didn’t halve your expenses, you were burning retirement fast.

If you had a line of credit associated with a reverse mortgage, you could have reduced the impact on your portfolio by drawing on your home equity. Then you would have had more on hand to ride the market back to some form of equilibrium even though your home equity would have been reduced. There was a time when home prices could be said to keep pace with the market. But that is not a recent trend. A tract home in the Philadelphia region with 3,000 square feet  sold in July, 2008 for $400,000. Six years later it sold for $420,000 and it today draws estimates for $410-425,000.  Had you known in Fall, 2008, you could have borrowed $100,000 in home equity; stuck it in a Dow index fund and today your $100,000 would be worth $251,000. But, alas, that would require speculation.

But there are good times to draw on home equity. You sit, happily in your crap filled house burning through $3,000 a month of retirement. The roofer tells you “It’s time for me to get $20,000.” That roof can come out of home equity much more readily than an investment portfolio because the house is not really gaining value.

Now for some of the trickier strategies; tricky but solid if done in the right way. You are on a fixed income. You have $300,000 in equity but $200,000 in mortgage debt. The monthly mortgage of $200,000 plus $600 a month in real estate taxes is really crimping your ability to see the grandkids. Why not take a reverse mortgage on the equity to service the real mortgage you owe. This cuts expenses while leaving your investment portfolio intact. Yes, your real estate portfolio is going to decline but that wealth right now is trapped in housing and not really increasing.

Another strategy. We are told that if you delay drawing on Social Security from ordinary retirement to age 70, the monthly benefit payable rises by 7% a year. That’s a pretty solid return and it’s guaranteed unless you conk out along the way. But, you may look at the pension and retirement money you now have and say, I can’t really make it to 70 without tapping my social security. Why not consider a reverse mortgage to fund the “gap” of payments you might otherwise get if you applied early or at normal retirement age.

Your employer lays you off in December 2015. Because you are not a kid it is going to take time to find a job, which means that your 2016 income will be low. Financial planners will suggest that the off-year is a prime time to convert a traditional IRA to a Roth because your income will be low. But you do still have to pay the tax on the conversion. Why not take that out of a reverse mortgage to cover the taxes.

Typically, reverse mortgage payments come without tax because the payment is not income but a reduction in home equity. You are effectively getting your own money. Federal regulations now make it so that a steep decline in home equity such that the amount you took out exceeds the equity does not open the door to liability on your part. So this is now a tool and not a toy. It can be abused but it has options that can make your retirement far more comfortable.

Up until about two years ago, a good portion of questions which came through this blog were questions about common-law marriage. Usually, it was someone asking whether or not they had a common law marriage and if so/if not, what they needed to do to dissolve it or enforce it.

I felt bad for many of those people who described facts in which a long-term relationship abruptly ended or the need to be designated as a spouse to receive medical benefits. Often, their facts simply did not describe the criteria for a common law marriage under Pennsylvania law before it was abolished in 2004. The one critical factor always seemed to be lack of any specific intent to be considered “married” by the parties.

An interesting case out of Bucks County, however, recently applied common law marriage to a same-sex couple even though one of the partners was dead. The Honorable Theodore Fritsch Jr. granted the request of Sabrina Mauer to have her twelve year relationship with Kimberly Underwood declared a common law marriage. Ms. Maurer cited their 2001 New Jersey commitment ceremony as indicia of their intent to be married.

Ms. Mauer brought the Bucks County action after Ms. Underwood passed away in November 2013.  Since then she’s been refused certain spousal benefits and is required to pay inheritance taxes on Underwood’s estate; issues which, ironically, are nearly identical to those raised by Edith Winsor in the seminal same-sex marriage case, United States v. Windsor.

Judge Fritsch found the marriage valid back to the date of their New Jersey commitment ceremony. An article by Gina Passarella of The Legal Intellgencier quotes the Order as stating, “[their] marriage is valid and enforceable, and they are entitled to all rights and privileges of validly licensed, married spouses in all respects under the laws of the commonwealth of Pennsylvania.” Ms. Passarella also identifies that of the several governmental agencies which were put on notice of the action, none appeared to contest the case; the Department of Revenue sought more time to respond before opting not to take a position which, in such cases, is very much a position.

Prior to civil unions, domestic partnerships, and, eventually, marriage, exchanging rings and having a commitment ceremony before friends and family was perhaps the only symbolic way a same-sex couple could celebrate a commitment to each other.  This case proves that what was once a symbol, without any legal import in 2001, can ironically fulfill in 2015 the elusive element of common law marriage by demonstrating a public or cognizable intent of the parties to be married.

Unaddressed in the judge’s order or the article is the consideration of whether or not the timing of the entire relationship factored into the decision. Ms. Mauer’s common law marriage began in 2001 before the 2004 abolition of common law marriage and ended upon Ms. Underwood’s death in November 2013 – four or five months after Windsor essentially legalized same-sex marriage. Any common law marriage must be deemed to have been entered into before January 1, 2005; less certain is whether the relationship had to continue through the Windsor decision to be a valid common law marriage. If Ms. Underwood had passed away in 2012, would it have changed the outcome? Perhaps, it would. It may take other same-sex couples or widow/ers to raise this issue, but Judge Fritsch’s decision undoubtedly opens the door for such questions to be considered.

(Photo credit: 123rf.com; Jens Tandler)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

401(k) retirement plans are commonly divided in divorces by way of a Qualified Domestic Relations Order which prevents the transfer of the funds from the plan participants account to the other spouse from being a taxable event such as it would be if they simply withdrew money from the account. If you participate in a 401(k) plan then you are probably well aware that withdrawing money before you reach retirement age subjects you to a 10% penalty on the amount of money you withdrew and you have to pay income tax on the withdrawal.

For many divorce cases, however, the use of the 401(k) funds is a necessity for one or both of the parties. Recognizing the reality that people needed access to their accumulated retirement funds for legitimate and immediate financial purposes, the IRS created a mechanism for being able to utilize your 401(k) funds without having to pay the taxes or penalty on the withdrawals. A “hardship distribution” is defined by the IRS under Reg. § 1.401(k)-1(d)(3)(i) as an immediate and heavy financial need by the employee or the employee’s spouse or dependent with the withdrawal being a sufficient amount to satisfy the need.

The need to take a “hardship distribution” is not uncommon for many people involved in a divorce. Divorces can cause financial damage to both parties, but particularly the “dependent spouse” who may not have the cash flow or immediate resources to address an urgent financial need. It can also be a tool for the “independent spouse” who transferred a significant portion of their wealth to the other spouse. The award of 401(k) assets (if in the form of an IRA, the analysis changes somewhat) may be the financial resource they need to stabilize and rebuild their financial health. While any financial advisor would advise against using tax deferred money if it all possible, circumstances dictate otherwise at times and knowing this option exists may be helpful.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

Last May, Susan Foreman Jordan in our Pittsburgh office issued a very informative alert on the impact of the United States Supreme Court’s decision in United States v. Windsor on the IRS and Department of Labor recognition of same-sex marriages.

Susan identifies and explains how the IRS and Department of Labor clarified, so as to avoid any ambiguity, that if the same-sex marriage was legally entered into, then they would consider it a valid marriage even if the parties were domiciled in a jurisdiction which does not recognize same-sex marriage.

More technically, the IRS issued a Notice (Notice 2014-19) confirming that for qualified retirement plans and other employee benefit programs must recognize same-sex marriages as of June 26, 2013 when the Windsor decision was made, but that they do not have to extend retroactive recognition to that marriage. Susan expands upon that point and amending plan language to confirm to the Windsor decision.

Susan’s alert is really aimed at plan sponsors and what they can do to confirm with the law. It is also informative to plan participants to understand how the Windsor decision has affected their retirement plan.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

I hope you enjoy your box full of $20's
I hope you enjoy your box full of $20’s

As we head into the second half of 2014, now is a good time to take stock of your financial and tax situation, particularly if you are separated or divorcing. Over the next few posts, I am going to highlight some areas worth considering if you are in either situation since it is much easier to stay ahead of these issues rather than scramble to catch up to them in January or February next year.

For this post, I wanted to give a brief summary of how monetary gifts are dealt with by the IRS and how they can impact a divorce case.

The first thing to know is that the IRS has a maximum tax exclusion of $14,000.00 for gifts.  The IRS allows up to that amount to be excluded from taxes, however, anything above $14,000.00 requires a Gift Tax Return to be filed by the person giving the gift and the possibility that they will have to pay tax on the gift. The recipient (or “donee”) does not have to file anything with the IRS or pay any taxes on the gift they receive. Anyone giving gifts in excess of $14,000.00 has to file a Form 709. The exception to this rule is if the gifts are made to a spouse.

Understanding the rules on gifts and the threshold for what requires the filing of a gift tax return is important for those receiving financial assistance from a third-party during a divorce action. The donor may be able to contribute the money as an excluded gift.  From the perspective of litigation, it is also important where there are concerns that an estranged spouse is dissipating the marital estate through gifts to third parties. Requesting the production of gift tax returns should be a standard discovery request in most divorce cases.

Though this is really an estate planning concept, it nevertheless can be relevant in a divorce action. There may also be situations where a spouse receives a portion of the estate and there are tax ramifications which he or she cannot address due to their income levels. Gifts and other estate planning devices may be useful tools for managing such issues. If you have questions about gifts and gifts exclusions, speak to your attorney. In my firm, we are fortunate to have many excellent estate planning attorneys who collaborate with us on family law cases to help address such issues.

Form 709 can be found here.

(Photo Credit: www.giftster.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

 

As the nation emerges from the fog of tax season, many people who paid little attention to their taxes for the previous eleven months just received a crash course in tax planning, either on their own or with their tax professional. If they have a 401(k), they dealt with their retirement account in some way, either by having to pay tax on a distribution or looking at what they were able to contribute over the year; perhaps they were making one last payment before the tax filing deadline.

For many people, however, having a 401(k) plan begins and ends with a few simple actions: sign up for a plan through your job; contribute a pre-tax amount from each paycheck, and; never deal with it until you retire.

Such a simplified approach is a great way to ensure consistent savings and a retirement nest egg. It is not, however, the end of the equation. Recently, Paul T. Murray, president of PTM Wealth Management, wrote a blog entry on five techniques for avoiding the 10% tax penalty for an early withdrawal from a 401(k). This is great information because it sheds light on a practical issue many people going through a divorce or separation face: having to use the only accessible financial account available to them – the 401(k) – before they reach the mandatory distribution age.

Paul highlights five areas where people can avoid paying the 10% tax penalty on an early withdrawal. Not surprisingly, they are complicated and require significant planning to successfully utilize. The most intriguing, in my opinion, is the one-time withdrawal from a rollover of 401(k) funds. Many times a dependent spouse either had no retirement account or a lightly funded account. When the time comes for them to receive a substantial rollover from their spouse’s 401(k) to their IRA, the IRS provides for a one-time withdrawal in any amount. This could be a major tool for a spouse who is in a case with little cash in the marital estate and has the immediate need for cash. It might be the cash infusion they need to pay off a debt or cover their expenses as they transition into their new phase of life.

Four other techniques are highlighted and the blog entry is worth reading. The tax code is complicated, but if you know where to look it can also provide for some creative solutions to financial and tax problems.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty