Alimony Update

Losing Alimony from Living Together

jvmac@mac.com — 2008-01-30T18:15:45-06:00

Some laws and divorce decrees include "morals clauses."

The Elder Law Answers blog mentions the possibility of losing alimony from living together without, as is said, the benefit of clergy:

If you are receiving alimony from a divorced spouse, it will likely end once you remarry. Depending on the laws in your state and your divorce settlement, alimony may end even if you simply live with someone else.

This actually is a function of two things: First, divorce decrees will sometimes provide that alimony ends should the person receiving it begin living with someone. Second, some state laws provide that marriage ends alimony obligations.

And what happens if you get divorced in one state but then move to another? Will the new state apply the law of the old state?

It's worth a trip to see a family law attorney whether your plans include just living together or getting married - no matter what your age.

Alimony Increase from Child Support Decrease

jvmac@mac.com — 2008-01-25T10:19:19-06:00

Child support termination can be a material change of circumstances that allows spousal support to increase.

Ordinarily there must be a material change of circumstances for a court to modify spousal support. In 1999, a California Court of Appeal held that termination of child support cannot be a material change of circumstances that would permit an increase in spousal support because the fact that child support would end was already taken account of in the order.

But now the law is otherwise. Gov. Schwarzenegger signed SB 415 on September 26, 2007. This Bill adds new section 4326 to the California Family Code. The new section states that "the termination of child support . . . constitutes a change of circumstances that may be the basis for a request for modification of spousal support."

Attorney's Fees to Obtain Alimony Deductible

jvmac@mac.com — 2008-01-19T17:08:42-06:00

Over at mensnewsdaily.com is a post from a letter that says women may deduct attorney's fees incurred in attempting to obtain alimony, but this is unfair because men can't deduct their attorney's fees in attempting to resist alimony. The post cites to IRS Publication 504 ("Divorced or Separated Individuals").

Sure enough, on page 20, in a section called "Costs of Getting a Divorce," Publication 504 says:

Fees for getting alimony. Because you must include alimony you receive in your gross income, you can deduct fees you pay to get or collect alimony.Example. You pay your attorney a fee for handling your divorce and an additional fee that is for services in getting and collecting alimony. You can deduct the fee for getting and collecting alimony, subject to the 2% limit, if it is separately stated on your attorney’s bill.

The letter says this isn't fair: "The legal fees are deductible to her, but your legal fees are not deductible to you. Even if the legal fees were just to defend yourself from having to pay more alimony."

But what if the guy was trying to get alimony from the woman? Then his fees would be deductible. I'll grant you that a man paying alimony to a woman is not nearly as common as the other way around, but there you have it: It's isn't unfair.

What is unfair is that anyone ought to be able to deduct attorney's fees to collect alimony. Why should someone get a tax break for that?

Adjustable Alimony, Bankruptcy and Victoria Gotti

jvmac@mac.com — 2008-01-15T10:24:00-06:00

The Poynteronline reminds us that the Consumer Price Index (CPI) can be used to adjust alimony. And a story in Oklahoma's Journal Record reminds us: "Under federal law, debts owed former spouses for alimony, maintenance or support are not dischargeable." In other words, filing for bankruptcy won't get you out of your alimony obligation. 11 U.S.C. § 523(a)(5). It won't get you out of much of anything with respect to a former marriage: In 2005, Congress amended the bankruptcy law to make and "domestic support obligation" nondischargeable.

In New York, Victoria Gotti - the mobster's ex-wife - didn't do so badly: "Victoria Gotti's ex-husband got 10 years for racketeering, she got the Long Island mansion and $25,000 a month." But only half of that is alimony - $12,500 per month - the rest being child support.