Making Financial Decisions When Divorce Occurs

Transcription

1 Making Financial Decisions When Divorce Occurs An Idaho Guide Published jointly by the University of Idaho Cooperative Extension System and the Idaho Women s Commission

2 Making Financial Decisions When Divorce Occurs Elizabeth Brandt, Linda Kirk Fox, and Kathleen Hardcastle an Idaho Guide

3 Making Financial Decisions When Divorce Occurs: An Idaho Guide is the product of the work of numerous individuals throughout Idaho. The authors acknowledge financial assistance from the following for printing and distribution costs: University of Idaho Cooperative Extension System Idaho Women s Commission IMPORTANT What is considered property to be divided at divorce, and the guidelines for child and spousal support, differ from state to state. This publication is based on Idaho law in effect as of July However, the section entitled Child Support on page 11, and Table 3, Basic monthly child support guidelines schedule, on page 19, are subject to revision. Contact the District Court (look under County Government in the telephone directory yellow pages) or request copies of the Child Support Guidelines from Administrative Offices of the Court, 451 W. State Street, Boise, Idaho (208) Reprinted June 1992; revised 11/97 ii

4 Table of Contents Disclaimer... ii Introduction... 1 Do You Need a Lawyer?... 2 Hiring a Lawyer... 2 Mediation... 2 Property and Debts... 3 Community Property Separate Property... 3 Fair Market Value Replacement Value... 3 Division of Property... 3 Division of Debts... 4 If You Own a Home... 4 Market Value or Estimated Sales Price... 5 Proceeds from Sale... 5 Selling at Some Future Date... 5 Income Tax Consequences... 6 The Cost of Staying in the Family Home... 6 Estimated Costs of Rental Housing... 6 Household Appliances and Furnishings... 6 Automobiles and Other Vehicles... 7 Bank Accounts, Investments, Stocks, and Bonds... 7 Life Insurance... 8 Who is the Insured?... 8 Who Owns the Policy?... 8 Who is the Beneficiary?... 8 What is the Face Value?... 8 Is There a Cash Value?... 8 Are There Any Loans Against the Cash Value?... 8 Life Insurance as Property... 8 Life Insurance and Child or Spousal Support... 9 Retirement Accounts and Plans... 9 IRA s and Keogh Plans Other Employee Plans Pension Plans Debts Proposed Property Division Child Support The Financial Needs of the Child Child Support Guidelines Income Determination Under the Guidelines Gross Income Gross Potential Income Computations When Guidelines Apply Other Adjustments Shared Physical Custody Extended Visits Split Physical Custody Future Adjustments Medical and Dental Expenses Post-high School Education Timing and Method of Payments Budgeting and Recordkeeping Spousal Support Social Security If You Are Married If You Divorce iii

5 Table of Contents (cont d) Health Insurance Medicaid Estimated Income/Expense Statement Other Financial Considerations Credit Joint Accounts During Marriage After Divorce Credit Payment Priorities Creditors Options Review Your Credit Report Should You Consider Loan Consolidation? Who to Talk to About Your Financial Situation If You Have No Credit Rating Child Care Assistance Food Stamps Income Tax How Divorce Affects Taxes Before Divorce After Divorce Earned Income Tax Credit How to Receive EIC How to Receive the EIC in Your Paycheck Bankruptcy Wills and Estate Planning A New Financial Life Name Change Prenuptial Agreements Glossary Additional Resources Authors, Acknowledgments Illustrations Tables 1. Estimated annual family expenditures on a child (overall U.S. from birth to age 18) Child support obligations based on both parents gross income where only one parent has custody Basic monthly child support guidelines schedule Figure 1. Affidavit verifying income Worksheets 1. Estimated Proceeds from Sale of House Estimated Cost of Staying in the Family Home Estimated Cost of Renting Summary of Life Insurance Policies Summary of Debts Summary of Proposed Property Division Completed Sample Worksheet Monthly Financial Needs of Children Child Support Obligations Child Support Obligation, Shared Physical Custody Summary of Income of Husband and Wife Projected Income-Expense Statement iv

6 Introduction Making Financial Decisions When Divorce Occurs: An Idaho Guide The financial decisions you make at divorce have long-term economic impacts on you, your spouse, and your children. One decision affects another, such as how your property is valued and divided, how debts are paid, who provides child support, and (in some cases) whether one of you provides support payments to your spouse. The decisions may be made by you and your spouse; by you and your spouse with assistance from a mediator, counselor, or the attorneys of husband and wife; or, in a contested divorce, by the judge. Economic information and an understanding of your financial situation are critical as you make these decisions. It takes time and effort to become familiar with your family financial situation. The purpose of this publication and the worksheets is to help you analyze your financial situation. The goal of the divorce proceedings is to arrive at a settlement that is just based on the facts and circumstances of each case. What is just depends on the situation. In some situations, dividing assets and debts equally would be just; in others, an equal division would not be just. What is just in a short-term marriage will differ from what is just in a long-term marriage. In some divorces, decisions you make can be carried out immediately. For example, if the only property to be divided is the bank account, it can be divided at the time of the settlement. Other divorces may involve promises of things you will do in the future: sell property, pay debts, or make payments to your spouse. These promises need to be in writing. If they are not, enforcing the provisions may be impossible. The written agreement is called a property agreement, and it becomes a part of the divorce decree. Do not sign a property settlement agreement you do not understand or one that you feel contains unfair terms. Consult your own attorney not your spouse s attorney before you sign. The period before divorce is difficult. You are expected to make rational decisions at a time of emotional turmoil and in a setting that does not lend itself to rational discussion. Most couples experience increased pressures due to separation and pending divorce. Do not let emotions result in missed payments, lapsed insurance, or unnecessary additional financial pressures. Develop a temporary income and expense plan to keep up to date with financial obligations and, if possible, avoid incurring additional debt. You and your spouse should keep records of all expenses you ve paid. If you have no money for current living expenses or if you fear your spouse will sell or dispose of assets, get legal help. Many of the legal terms in this bulletin are italicized bold in the text and defined in a glossary on pages For Worksheets, see pages The goal of the divorce proceedings is to arrive at a settlement that is just based on the facts and circumstances of each case. What is just depends on the situation. 1

7 The period before divorce is difficult. You are expected to make rational decisions at a time of emotional turmoil and in a setting that does not lend itself to rational discussion. Do You Need a Lawyer? A simple divorce can be obtained without the assistance of a lawyer. For example, when you and your spouse are on good terms, do not have children, do not own real estate or other substantial items of property, and do not have extensive debts, a doit-yourself divorce may be appropriate. However, if any of the above factors apply to you, the assistance of a lawyer will best protect your interests in the divorce process. This guide will help you whether you are represented by a lawyer or not. If you are not represented, the guide will help you cover all the bases. If you are represented, it will enable you to be an informed consumer of legal services and will help ensure that you provide your attorney with accurate and complete information on all aspects of your divorce. Hiring a lawyer To find a lawyer to hire, you have several options. You may want to ask friends and acquaintances. You may look for lawyers who advertise in the yellow pages of the phone book. You may also call the lawyer referral service of the Idaho State Bar, phone (208) Idaho Legal Aid Services, Inc., handles a limited number of divorce cases for people who have income below the poverty income guidelines. These cases must involve either spousal or child abuse. Call your nearest Idaho Legal Aid office. The Idaho State Bar also has a Volunteer Lawyer Program, phone (208) which assists individuals who cannot afford to pay for legal advice. Mediation Mediation is a nonadversarial procedure where you and your spouse jointly hire a neutral, third-part facilitator (often a specially trained attorney) to help you work out a fair and equitable divorce agreement together. Included in this agreement will be the children s living arrangement, visitation, the home, and other assets and debts. When the mediator completes the draft divorce arrangements, both you and your spouse should review it with your individual attorneys before agreeing to anything. Mediation often is relatively quick and less expensive, but it s not for everyone. The alternative is litigation. In some instances, the court may refer both parties to mediation to resolve custody and visitation disputes. In many counties divorcing parents are automatically referred to mediation. In this case the fee is split between the two parties. Trained mediators charge by the hour for six to eight one- or two-hour sessions. To locate a qualified mediator in Idaho, contact the Idaho Mediation Association, phone (208)

8 Property and Debts If you are considering divorce, you need to determine how to divide community property and who will pay debts incurred during the marriage. Before doing this, you need a list of the property owned, its estimated value, and a list of debts. This list should reflect which property is community property. Property is both real estate and personal property. Real estate is land, buildings, and crops growing on the land. Your home is considered real estate. Personal property is all property that is not real estate automobiles, furniture, appliances, bank accounts, stocks, bonds, life insurance, IRA s, pensions, etc. Community Property Separate Property Community property is any property acquired by you or your spouse during the marriage with the following exceptions. Property is separate if it was acquired by assets you or your spouse owned before you were married. Also property acquired by you or your spouse as a result of a gift to one of you, or through inheritance, is separate property. A gift to both of you, however, is generally community property. Your earnings during marriage and things purchased with those earnings are community property. Furthermore, in Idaho, the rents and profits of the separate property owned by you or your spouse are community property. For example, if you owned stock before marriage, the dividends paid on the stock during marriage would be community property; but the increase in value of that stock would not be community property. Interest is another example of rents and profits of separate property that would be community property. Fair Market Value Replacement Value Estimate the dollar value of your property. Before you start estimating value, it is important to differentiate between fair market value and replacement value. Fair market value is the price at which a willing buyer will buy an item and a willing seller will sell an item. How much could I get if I sold my car? Replacement value is the cost of replacing the property with similar property. If I don t get the car, how much will it cost me to buy one to get back and forth to work? As you and your spouse discuss property values, whichever one of you plans to keep the property may think in terms of fair market value, while the other (who will be replacing the property) may think in terms of replacement value. For example, if you keep the furniture, you might think, This stuff is 10 years old and almost worthless; I couldn t even sell it. That s fair market value. Your spouse might think, I have no furniture, and it will cost a lot to get my apartment furnished. That s replacement value. Both fair market value and replacement cost are considerations. But property has to be valued the same way by you and your spouse; the most common way to value property is fair market value. Division of Property Community property should be divided equally unless there are compelling reasons for making an unequal division of property. Generally, separate property is not divided at divorce and you and your spouse may keep your own separate property. An equal division of property does not mean that each of you must receive one-half of each asset. Instead, an equal division means that the total value of the property distributed to each of you should be equal. Community property should be divided equally unless there are compelling reasons for making an unequal division of property. 3

9 If you own a home that was purchased during your marriage, its value is generally community property to be divided at divorce. The decision to make an unequal division of community property is within the discretion of the court. While an equal division is most common, a court will consider the following factors in making an unequal division of community property: 1. the duration of the marriage; 2. any pre-nuptial agreement between the parties; 3. the age, health, occupation, amount and source of income, vocational skills, employability, and liabilities of each spouse; 4. the needs of each spouse; 5. whether the property settlement is in lieu of or in addition to maintenance (alimony); 6. the present and potential earning capability of each spouse; 7. retirement benefits including Social Security, civil service, military, and railroad retirement benefits. Division of Debts The division of property must also take into account the debts incurred by you or your spouse during your marriage. These debts could include amounts owed on a car, home, credit cards, home equity loan, unpaid bills, and unpaid taxes. These debts must be considered even if you did not personally sign the agreement leading to the debt or did not consent to incurring the debt. The material in the following sections will help you begin to inventory and value property and to inventory debts. This publication does not discuss valuation of closely held corporations, family businesses, and professional corporations. It also does not discuss property rights in (and valuation of) professional licenses and college degrees. If your divorce involves any of these issues, you need technical and legal help beyond the scope of this publication. If You Own a Home If you own a home that was purchased during your marriage, its value is generally community property to be divided at divorce. However, if the money used as a down payment on the home belonged to one of you before marriage, is a rollover from the sale of a house owned by one of you before marriage, or was given to one of you, the house may not be community property. In addition, questions regarding the community character of the house may arise if only one spouse s name appears on the deed to the property or the mortgage. If your house is not community property, but you or your spouse made payments on the mortgage using your income, you may be entitled to reimbursement of the amount paid If your house is community property, this value may be divided in several ways: You may sell your home and split the proceeds with your spouse. One of you may buy your spouse s share of the house. One of you may retain the right to live in the house for a certain period of time (while the children are minors, for example) and at some future date sell the house and divide the proceeds. One of you may retain the home, and your spouse may receive other property and/ or income of comparable value. When you make decisions about the house, carefully consider the economic aspects of these decisions: What is the market value (estimated sales price) of the house? 4

10 How long would it take to sell the house? How much equity do you have in the house? (Equity is the value of your investment what you could sell your house for, less the balance due on the mortgage or purchase contract.) How much cash would be available after the house is sold? Are there income tax considerations? Can either you or your spouse afford to live in the house after divorce? What is the cost of alternate rental housing if you do not continue living in this house? Market Value or Estimated Sales Price Market value is the amount of money a buyer would pay for your house. Market value is not necessarily the same as the price at which a real estate agent would list the house; houses often sell below list price. You might hire a real estate appraiser to determine the market value of the house. Before you hire an appraiser, find out the cost. When you receive the appraisal, read it carefully. Know what the appraisal includes (it usually includes the major household appliances). Your property assessment notice gives a dollar amount that the assessor s office considers market value. If you do not have the property assessment notice, you can get one from your county assessor s office for about 50 cents. Since market values change continuously, the assessor s figure may not be an accurate estimate of value. For example, it may not reflect the current condition of the house or the current condition of the real estate market. Proceeds from Sale When a house is sold, there are expenses paid by the seller. The proceeds from the sale is the selling price less the selling expense. Estimate your proceeds on Worksheet 1. If you are planning to sell your home, talk to more than one real estate broker because commissions and services differ. Check the real estate broker s contract (the listing agreement) carefully before you sign. Many of the terms are negotiable. However, the negotiations must take place before you sign the contract. An agreement for the sale of real estate must be in writing. The earnest money agreement names the parties, describes the property, and lists the terms of payment and the conditions of sale. Read and understand the earnest money agreement before you sign. Selling at Some Future Date Some property settlements provide for the sale of the family home sometime in the future; one of you will continue living in the family home for a certain period of time. At the end of this time, the home is sold and the proceeds divided. Sometimes, the parent with the custody of minor children lives in the home, and the sale takes place when the youngest child is 18. If you are considering postponing sale of the house, decide these points: Before the sale, who pays the principal? interest? insurance? taxes? Before the sale, who pays for major repairs such as a new roof? or a new furnace? Before the sale, who pays for routine upkeep such as lawn care? painting? minor repairs? Are there income tax consequences to consider? When the house is sold, how will the proceeds be paid? Will one person have a lien on the house that will be paid off at sale? Or will the sale proceeds be divided? Often one person wants to remain in the family home after the divorce. Staying in the family home may provide security and eliminate costs and stresses associated with moving. 5

11 If you overestimate the fair market value of household appliances and furnishings, you also overestimate both the value of the property to be divided and the share of the property of the person receiving the appliances and furnishings. Income Tax Consequences When a home is sold and there is gain (the sale price is greater than the purchased price), the gain is income and is taxable. Generally, this gain is taxable in the year the home is sold. Moving to a smaller home, relocating to a less costly area, or deciding to rent is an important decision. Starting with homes sold after May 6, 1997, up to $500,000 of current and deferred profit is tax free for joint filers ($250,000 for single filers). And the exemption can be claimed every two years. Previously, many divorcing people who have sold their homes have felt compelled to take advantage of a rule that let them defer tax on any profit by buying a replacement home of at least equal value within two years or using laws that applied only if you were over the age of 55. Ask a tax expert before you decide whether to sell the house before or after the divorce or whether one or both of you should sell the house. Helpful tax publications are available from the Internal Revenue Office: No. 523, Tax Information on Selling Your Home; No. 504, Tax Information for Divorced or Separated Individuals; No. 551, Basis of Asset; and No. 555, Community Property. The Internal Revenue Service is listed in your phone book under U.S. Government or can be contacted by calling TAX The Cost of Staying in the Family Home Often one person wants to remain in the family home after the divorce. Staying in the family home may provide security and eliminate costs and stresses associated with moving. Worksheet 2 will help you estimate the monthly cost of living in the house. Is this affordable on after-divorce income? If it isn t affordable, staying in the house will not provide security or eliminate stress. In addition to monthly costs, consider the household work. Who has been doing the repairs, maintenance, yard work, and housekeeping? If you have been doing all or some household work before your divorce, will you be able to continue to do it after you divorce? If after divorce you will be employed for longer hours, you will have less time for household work. If your spouse has been doing some household tasks, can you do them or can you hire someone to do them? Estimated Costs of Rental Housing Is rental housing available as an alternative to staying in the family home? If several children live with you, rental housing may be difficult to find. If rental housing is available, use Worksheet 3 to estimate monthly rental costs. In addition to the monthly rent, there are some one-time costs: moving costs, security deposits, pet deposits, telephone and utility deposits, and hookup costs. And you may have to pay the first and last months rent when you sign the lease. As you look at the cost of renting, think of other factors related to changing housing location. Will you be closer to or further from work? Will you be closer to or further from child care or schools? If you will be further from work, child care, or schools, you will spend more money and time driving. Household Appliances and Furnishings Household appliances and furnishings acquired during your marriage are generally community property and should be divided at divorce. You need to determine who gets which appliances and furnishings, and you need to establish the fair market value of this property. If major appliances were included in the appraisal value of the house, do not list them separately. Don t forget to include the value of coins, stamps, guns, and collectibles. The fair market value of property is the price someone would pay for the item. Even though it may be costly to replace existing household appliances and furnishings with new ones, the fair market value is often very low. 6

12 If you overestimate the fair market value of household appliances and furnishings, you also overestimate both the value of the property to be divided and the share of the property of the person receiving the appliances and furnishings. Estimate the fair market value by looking at the price of similar items of the same age at second-hand stores and garage sales, and in newspaper ads. You could also hire an antique dealer or a second-hand dealer to appraise your household goods. Another way to determine a value for household items is to determine depreciated values. Depreciation is a decrease in value over a period of time due to wear, tear, and age. To determine depreciation you need to know the age and original cost of the item and its life expectancy. When thinking about life expectancy ask yourself, How much longer will this last? That, added to how long you ve owned the appliance, is its life expectancy. Local appliance or furniture dealers may also be able to help you determine life expectancy. Automobiles and Other Vehicles Cars, campers, trucks, motorcycles, etc., acquired during marriage are generally community property to be divided at divorce. The same exceptions that applied to determining whether your house was community property also apply to vehicles. You need to determine the value of the vehicle, who gets the vehicle, and who pays any debt owed on the vehicle. Automobiles and most other vehicles depreciate in value over a period of years. The estimated fair market value of a car may be found in a used car guide. Reference books on values of used cars are published by the National Automobile Dealers Association (N.A.D.A.) and by Kelly Blue Book and are available in most libraries. Banks and other lenders often have these books and can give you an estimate of a vehicle s value. A car dealer can also tell you the high and low book values for a particular make, model, and year of car. The high book value is an estimate of a car s retail value what it would sell for to a consumer. The low book value is an estimate of its wholesale value what the dealer would pay for it. These, of course, are estimates. Cars in very good condition or with extra features may be sold for more, and cars in poor condition or with high mileage and few features may be sold for less. If money is owed on the car, you need to decide who will pay this debt. In some instances, it may be possible and desirable to refinance the vehicle so the loan is only in the name of the spouse who is keeping the car. If the debt is not refinanced, one of you (often the person keeping the car) will usually agree to pay the debt owed by both of you. This agreement should be in writing. The property agreement should state which person assumes the obligation and agrees to hold the other party free from liability or hold harmless the other party. This means that one of you agrees to pay the debt. However, the creditor (the person to whom the money is owed) may be able to require payment from either you or your spouse even if the loan was not in both names. If that happens, whichever one of you was to be held free from liability pays the creditor and then may bring legal action against your spouse, who agreed to pay the debt. If you continue to have responsibility for the debt on a car even if you don t have possession of the car, be sure that the car remains properly insured. Bank Accounts, Investments, Stocks, and Bonds If you or your spouse owns bank accounts, stocks, bonds, and mutual funds that were acquired during marriage, these are generally community property to be considered in the property settlement. Even if the stocks and bonds themselves are If the policy was acquired after marriage and premiums were paid with community property, then the policy is community property and owned by both spouses, even though just one of you is named as owner. 7

13 At divorce, you need to decide who is to own the insurance policies. not community property, the interest and dividends are considered community property. Determine current value using annual or quarterly statements. If you do not know what assets you own, look at Schedules B and D of your Federal income tax return for the past 5 years. Schedule B of the Federal income tax return shows if you have had interest and dividend income. If interest income or dividend income exceeded $400, the schedule indicates the financial institution that paid the interest. This gives you some idea of the accounts and other assets of you and your spouse. Schedule D of the Federal income tax return reports gains and losses from the sale of investment assets such as stocks and real estate. If assets have been sold in earlier years, the proceeds may have been reinvested into new assets. If you do not have copies of past Federal income tax returns, they are available from the Internal Revenue Service. To order, use IRS form 4506, Request for Copy of a Tax Return. It takes at least 2 months, and returns are available for the past 5 years (in some instances, for earlier years). Life Insurance Life insurance purchased during marriage may be community property and is considered in divorce agreements if: 1. it has cash value; and/or 2. it is needed to provide protection against the early death of a person obligated to pay child support or spousal support. Use Worksheet 4 to list the following information about current life insurance policies: Who is the Insured? The insured is the person on whom death benefits will be paid. The policy will state the name of the insured. Who Owns the Policy? This is the person who pays the premium, names the beneficiaries, and can cancel the policy. The person to whom the bill is addressed is the owner. The policy states the name of the owner. If the policy was acquired after marriage and premiums were paid with community property, then the policy is community property and owned by both spouses, even though just one of you is named as owner. Who is the Beneficiary? The beneficiary is the person(s) who receives the benefits on the death of the insured; his or her name is stated on the policy. What is the Face Value? The face value is the amount of money that will be paid to the beneficiaries upon the death of the insured. Is There a Cash Value? Cash value is the amount of money the owner of the policy would receive if the policy were cancelled before the death of the insured. Typically, whole life insurance has cash value; term and group life insurance policies do not. Look for a Table of Cash Value in the policy or contact your agent. Not all insurance policies have a cash value. Are There Any Loans Against the Cash Value? Cash value may be used as collateral for loans. Loans reduce the death benefit of the policy. Life Insurance as Property If you own life insurance with cash value, that cash value may be community property. At divorce, you need to decide who is to own the insurance policies. The owner receives property, and the value of the property is the policy s cash value not the face value. The owner has the right to name the beneficiary and to decide whether the policy will continue. 8

14 Life Insurance and Child or Spousal Support The reason for life insurance is to provide income should the insured person die. When you have young children, you may want the insurance policies on one or both of you to continue. One common way this is done is to have a paragraph in the property agreement or divorce decree that states: (Name of husband or wife) shall maintain insurance on (his or her) life in the total sum of $ as long as (he or she) is required to pay child support. The insurance should be payable to as trustee for the children. If such insurance is not in force at death, the children shall have a claim against the estate for $. There are other ways to assure that insurance benefits will be available for the support of your children. If you have young children or a child with special needs and presently have insurance, ask your attorney about ways to ensure continuation of the insurance. When one of you is paying spousal support or a property settlement over a period of years, you may want to continue the insurance policy on the spouse owing the payments. One way of doing this is to include a paragraph in the property settlement or divorce decree similar to the paragraph above. Another way is actually transferring ownership of the policy to whichever one of you is receiving the payments. The new owner, however, should evaluate whether the premiums are affordable. If there are either child support or spousal support obligations, the court can order present life insurance policies to continue, the purchase of additional life insurance coverage, or (if there is no insurance) the purchase of new life insurance policies. Retirement Accounts and Plans Many couples have substantial sums of money in retirement accounts or plans. Money accumulated in these accounts during the marriage, and the future benefits resulting from the contributions during the marriage, may be community property and will be considered in the divorce settlement. A nonemployed spouse may be entitled to a share in the future benefits of these plans. There are many types of retirement accounts and retirement plans, including defined benefit and defined contribution plans, Individual Retirement Accounts (IRA s), tax-sheltered annuities, Keogh plans, deferred compensation, profit-sharing, and employee stock ownership, 401(k) or 403 (b) plans. Each of these is different. You and your spouse need to list all of these accounts in the name of either spouse and gather as much information as possible about the plan or account. Valuing the plans is difficult; in most cases, they should be valued by a qualified person, such as an actuary. If you live in a metropolitan area, you may find the heading actuaries in the yellow pages of your phone book. Or your accountant or attorney may be able to recommend someone with actuarial training. Before hiring the actuary, find out how much the evaluation will cost. In most instances, there is one fee for the evaluation and another fee if the actuary testifies in court. After plans are valued, decisions need to be made about how these values will be allocated to you and your spouse. In some cases, the value of retirement accounts/ plans is assigned to the employed spouse, and assets of equal value are assigned to the other spouse. In other cases, the present value of the future benefits of the retirement accounts/ plans is divided. And in still others, the retirement assets are not divided until the benefits of the accounts/plans are actually received. The alternatives differ with the type of plan and individual situations. Many couples have substantial sums of money in retirement accounts or plans. 9

15 Retirement accounts/plans come in all sizes and shapes. The following sections have information about several common types of retirement accounts/plans. Check with employers or labor unions to see what pension plans exist for the employed spouse. IRA s and Keogh Plans If payments have been made to IRA s or Keogh plans during a certain year, this information will appear on page 1 of your Federal income tax return (Form 1040) for that year. The accounts in which these payments were deposited issue annual statements that indicate present value. If the money is withdrawn from the account, there is income tax due and perhaps penalties to pay. Therefore, the present value of the IRA or Keogh plan is the account value less taxes and penalties due if money is withdrawn. An IRA can be transferred from one spouse s name to the other spouse with no tax consequences. (If, however, you are not yet 59 1/2 years old and you withdraw the money from the new IRA, there will be income tax due and a 10 percent penalty.) A Keogh plan is harder to transfer because of income tax consequences. Before terminating a Keogh plan to divide funds, carefully check the income tax consequences. Other Employee Plans Employee wage receipts usually indicate whether an employee is participating in deferred compensation, tax-sheltered annuities, profit-sharing, or employee stock ownership plans. Gather as much information as possible about these from the personnel office at the place of employment. You need to know what rights, if any, the employee has to withdraw funds from the account at the present time and, if the employee has such rights, what taxes are due on amounts withdrawn. Pension Plans There are many kinds of pension plans, each with a set of rules on allowances. Typical plans include Federal and State civil service retirement; military pensions; and industry, company, and union retirement. Check with employers or labor unions to see what pension plans exist for the employed spouse. Get copies of booklets explaining the plans and benefits. The information you ll need includes the following: Termination Benefits This is the amount, if any, the employee could withdraw if he or she quits or is fired at the present time. Vesting When the pension is vested, the employee has the right to some future benefits from the plan, even if she or he quits or is fired. Maturity When the plan matures, the employee has the right to the benefits. Usually, this is after the employee has worked a specified number of years and reaches a specified age. Amount of Future Benefits This is the amount that will be paid when the plan matures. It may be expressed as a percentage of the highest 3 or 5 years salary. It may be available in a lump sum or as a payment made monthly or annually until death. Look for information about the benefits paid at early or late retirement, and the benefits paid if the employee becomes disabled or dies before retirement. NOTE: This section doesn t cover Social Security benefits. However, Social Security does provide income at retirement age for an employed person and (under some conditions) for a former spouse. This is discussed in Spousal Support. 10

16 Debts In addition to dividing your property, you must determine who will pay which part of the debts incurred during the marriage List all of your and your spouse s debts including home mortgage, car payments, student loans, credit card accounts, unpaid bills, and unpaid taxes. Decide who will be responsible for each debt or percentage of debt. Usually, one of you assumes the obligation and agrees to hold the other party free from liability or hold harmless the other party. This means that one of you agrees to pay. If you do not pay, the creditor may collect from either spouse. Creditors are not bound by any agreement between the spouses. If whichever one of you who assumed the debt fails to pay, your spouse may be able to bring action against you. Summarize your information about debts on Worksheet 5. Proposed Property Division List all the property owned and debts owed. List the current fair market value for property and amount owed on debts. Determine the net value (assets minus debts) each of you would receive under this proposal. Use Worksheet 6 to record the information. If the property settlement or proposed divorce decree includes promises to pay amounts or to sell property or provides for liens against real property in the future, it must be in writing. This is called a property agreement. Do not sign a property agreement until you understand it. If you are uncertain about what it means or if you feel it is unfair, consult your own attorney not your spouse s attorney before you sign it. Child Support Both of you are responsible for the financial support of your minor children. If one of you is unable to work because of family responsibilities or because of a physical condition, it may be impossible for you to provide child support. However, a parent who is employable must support his or her children. The court will determine your obligations by applying the Child Support Guidelines discussed on the following pages. Your support obligation continues as long as your child is a minor or until the child is emancipated. A child becomes emancipated at age 18 or earlier if he or she marries or enters the military service. If a child continues high school after reaching the age of 18, the court may order child support to continue until age 19, or until the child discontinues his or her high school education, whichever is sooner. A court may also order support continue for a child with special needs. A court will not order child support past age 19 unless the parents agree in their divorce settlement that support will continue while a child is receiving post-high school training or attending college. Parents may choose to continue support obligations for emancipated students; however, if both parents do not agree, support is not automatic for children past age 18, but must be bargained for in a negotiated settlement. The two major questions in determining child support payments are: What are the financial needs of the child or children? How much of this cost should be paid by each parent? No charts or tables tell exactly how much it costs to raise a child. 11

17 ... the new spouse s income and resources would ordinarily not be considered in computing child support. The Financial Needs of the Child No charts or tables tell exactly how much it costs to raise a child. As a parent, you should be aware of the financial commitment necessary for raising children. Some estimated costs are available. Table 1 on the next page gives you a general idea of how much it costs to raise a child based on the annual expenditures on a child by a two-parent family. For the most recent estimates, send a self-addressed, stamped envelope to: Extension Family Economics Specialist, Niccolls Building, University of Idaho, Moscow, ID Use Worksheet 7 to help calculate the cost of raising your children. Child Support Guidelines Idaho has adopted Child Support Guidelines that must be used in setting child support unless one of you convinces the court that the guidelines would be unjust or inappropriate. The guidelines are intended to promote uniform and adequate child support awards; the Idaho Supreme Court will periodically review the guidelines to keep them current. The information that follows is correct as of January 1992, but the guidelines may be adjusted in later years and different amounts may be required. The guidelines are based upon the following basic principles: 1. Both parents share legal responsibility for supporting their child. The amounts in the guidelines are the same whether the parents are separated, divorced, remarried, or never married. The support responsibility should be divided in proportion to each parent s economic resources. 2. Child support is given priority over the needs of parents or creditors in allocating family resources. 3. The sex of the custodial parent, the parent who will have the physical custody of the child most of the time, should be disregarded. 4. If both parents are below the poverty level, support will be determined on an individual basis, but rarely will be set at zero. In the rare circumstance that the court doesn t apply the guidelines, the following will be considered: 1. the financial resources of the child; 2. the financial resources, needs, and obligations of both custodial and noncustodial parents; 3. the standard of living the child enjoyed during the marriage; 4. the physical and emotional condition and needs of the child and his or her educational needs; 5. the availability of medical coverage for the child at reasonable cost; and 6. the actual tax benefit recognized by the party claiming the federal child dependency exemption. Should either you or your spouse plan to marry someone else immediately after your divorce, the new spouse s income and resources would ordinarily not be considered in computing child support. Income Determination Under the Guidelines To determine child support under the guidelines, you must know the incomes of you and your spouse. Income is defined as gross income of the parents; or, if one of you is voluntarily unemployed or underemployed, your gross potential income. Gross Income This includes income from any source: salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, 12

18 Table 1. Estimated annual expenditures* on a child by husband-wife families, overall United States, Child care Age of Transpor- Health and Miscelchild Total Housing Food tation Clothing care education laneous Income: Less than $33,700 (Average=$21,000) 0-2 $5,490 $2,100 $780 $700 $370 $370 $630 $ ,610 2, ,740 2,010 1, ,770 1,810 1, ,560 2,020 1, ,460 1,630 1,520 1, Total $106,890 $34,950 $21,120 $15,900 $9,060 $7,560 $7,470 $10,830 Income: $33,700 to $56,700 (Average=$44,800) 0-2 $7,610 $2,840 $930 $1,050 $440 $490 $1,030 $ ,810 2,820 1,080 1, , ,870 2,750 1,370 1, ,860 2,550 1,620 1, ,580 2,760 1,630 1, ,710 2,370 1,810 1, Total $145,320 $48,270 $25,320 $22,110 $10,590 $9,870 $12,990 $16,170 Income: More than $56,700 (Average=$84,800) 0-2 $11,320 $4,520 $1,240 $1,470 $580 $560 $1,550 $1, ,540 4,490 1,400 1, ,690 1, ,500 4,420 1,690 1, ,160 1, ,430 4,230 1,960 1, , ,270 4,440 2,060 1,730 1, , ,550 4,050 2,170 2,100 1, ,090 1,420 Total $211,83 $78,450 $31,560 $29,730 $13,710 $11,310 $20,760 $26,310 *Estimates are based on Consumer Expenditure Survey data updated to 1995 dollars using the Consumer Price Index. The figures represent estimated expenses on the younger child in a two-child family. Estimates are about the same for the older child, so to calculate expenses for two children, figures should be summed for the appropriate age categories. To estimate expenses for an only child, multiply the total expense for the appropriate age category by To estimate expenses for each child in a family with three or more children, multiply the total expense for each appropriate age category by For expenses on all children in a family, these totals should be summed. Miscellaneous expenses include personal care items, entertainment, and reading materials. Source: Family Economics and Nutrition Review, Vol. 9, No. 3, annuities, Social Security and veteran s benefits, welfare payments, judgments, student loans, worker s compensation, unemployment benefits, and disability payments. The court may consider when and for what duration the receipt of funds from gifts, prizes, net proceeds from property sales, severance pay, and judgments will be considered as available for child support. Benefits received from public assistance programs for the parent shall be included except in cases of extraordinary hardship. For income from self-employment, rent, or ownership of a business, gross income is defined as gross receipts minus ordinary and necessary business expenses. Deductions, such as depreciation or investment tax credits, are excluded. The amount claimed by a self-employed parent as income for tax purposes may differ from the amount of income used for computing child support. Whichever of you can obtain your child s health insurance at the least cost should provide it. 13

19 Your child support is computed by multiplying your child support obligation by the percentage of time your child spends with its other parent. In-kind payments, such as the value of a company car, free housing, room and board, will also be counted as gross income. See Worksheet 8. Gross Potential Income If one of you is voluntarily unemployed or underemployed, child support is based on gross potential income. For example, if you quit a job, or decide to work only part-time, the amount of child support may be set as if you were still working full time. Potential income is based on your work history and qualifications, and also on employment opportunities. You are not considered underemployed while staying at home to care for a child not in school. The guidelines allow an adjustment from gross income for pre-existing courtordered child support currently being made for children from another relationship or for maintenance of a former spouse. Also, an adjustment to gross income is made for the cost of health insurance coverage for those children. See Worksheet 9. Whichever of you can obtain your child s health insurance at the least cost should provide it. Only the child s health insurance premium is deducted, not the amount of the premium for the entire family. The Guidelines provide that any of the child s health care expenses not covered by insurance should be shared equally by both of you over and above your child support obligation. The basic child support amount does not include the cost of work-related childcare expenses. These expenses are ordinarily shared equally by both parents and are included in the child support order. The amount to be added is the net childcare cost (actual childcare costs minus childcare tax credits) up to an equal sharing of the expenses. Computations The basic child support obligation (without considering health care insurance or childcare costs) is based on the gross income of both parents, according to the rates in Table 2 on the next page. Where both of you have gross income (either actual or potential), the amount of child support computed above is prorated between both of you in proportion to your gross incomes. Example: Let s say you have two children but they do not live with you (that is, you do not have custodial care); rather, they live with your spouse. If you earn $25,000 a year and your spouse earns $10,000, child support would be based upon your combined gross income of $35,000. By looking at Table 2, you can see that the first $10,000 of your gross income would accrue child support at the two-child 25 percent rate ($208 per month), the second $20,000 would accrue child support at the two-child 23 percent rate ($383 per month), and the final $5,000 at the two-child 20 percent rate ($83 per month), for a total child support obligation of $674 per month. You and your spouse would divide that amount in proportion to your own gross income. That means you d wind up paying $479 ($25,000/$35,000 or 71 percent) to your spouse as your share of child support. Another way to calculate child support is to use Table 3, a schedule of monthly child support amounts. Go down the first column until you find your combined gross monthly income. Read across to see the child support amount for the correct number of children you have. Multiply that amount by the percentage of your total combined gross monthly income earned by whichever one of you does not have custody of your children to determine how much that parent must pay in child support. When Guidelines Apply As you can see from the computation chart and from Table 3 on page 19, the Child Support Guidelines only apply when your combined annual income is between $6,000 and $150,000. Child support must be computed on a case-by-case basis if your combined income is below $6,000 or above $150,

20 Table 2. Computations for Basic Child Support. The basic child support obligation shall be based upon the Guideline Income of both parents, according to the rates set out in the schedule below: (the amounts are rounded off to the nearest dollar). Number of children and parent's income Per month Per year 1 child: 17% of the 1st $10,000 of combined Guideline income 142 1,700 15% of the next $20,000 of combined Guideline income 250 3,00 13% of the next $20,000 of combined Guideline income 217 2,600 10% of the next $20,000 of combined Guideline income 167 2,000 7% of the next $20,000 of combined Guideline income 117 1,400 4% of the next $20,000 of combined Guideline income % of the next $20,000 of combined Guideline income % of the next $20,000 of combined Guideline income ,060 12,700 2 children: 25% of the 1st $10,000 of combined Guideline income ,700 23% of the next $20,000 of combined Guideline income 383 4,600 20% of the next $20,000 of combined Guideline income 333 4,000 15% of the next $20,000 of combined Guideline income 250 3,000 10% of the next $20,000 of combined Guideline income 167 2,000 7% of the next $20,000 of combined Guideline income 117 1,400 6% of the next $20,000 of combined Guideline income 100 1,200 6% of the next $20,000 of combined Guideline income 100 1,200 1,658 19,900 3 children: 29% of the 1st $10,000 of combined Guideline income 242 2,900 27% of the next $20,000 of combined Guideline income 450 5,400 24% of the next $20,000 of combined Guideline income 400 4,800 20% of the next $20,000 of combined Guideline income 333 4,000 13% of the next $20,000 of combined Guideline income 217 2,600 10% of the next $20,000 of combined Guideline income 167 2,000 9% of the next $20,000 of combined Guideline income 150 1,800 9% of the next $20,000 of combined Guideline income 150 1,800 2,109 25,300 4 children: 31% of the 1st $10,000 of combined Guideline income 258 3,100 29% of the next $20,000 of combined Guideline income 483 5,800 26% of the next $20,000 of combined Guideline income 433 5,200 21% of the next $20,000 of combined Guideline income 350 4,200 16% of the next $20,000 of combined Guideline income 267 3,200 13% of the next $20,000 of combined Guideline income 217 2,600 12% of the next $20,000 of combined Guideline income 200 2,400 12% of the next $20,000 of combined Guideline income 200 2,400 2,408 28,900 5 children: 34% of the 1st $10,000 of combined Guideline income 283 3,400 31% of the next $20,000 of combined Guideline income 517 6,200 28% of the next $20,000 of combined Guideline income 467 5,600 24% of the next $20,000 of combined Guideline income 400 4,800 19% of the next $20,000 of combined Guideline income 317 3,800 16% of the next $20,000 of combined Guideline income 267 3,200 15% of the next $20,000 of combined Guideline income 250 3,000 15% of the next $20,000 of combined Guideline income 250 3,000 2,751 33,000 Other Adjustments Shared Physical Custody If you are the noncustodial parent and have your child more than 35 percent of the year (not counting periods of less than three consecutive overnights), then an adjustment is made in child support. Your child support is computed by multiplying your child support obligation by the percentage of time your child spends with its other parent. The child support obligations are then offset, with the parent owing more child support paying the difference between the two amounts. See Worksheet 9. 15