Welcome to the Koenig|Dunne blog. We have three different blog series for you to find inspiration and encouragement as you go on this journey:
- Doing Divorce, A thoughtful discussion about divorce: Angela Dunne provides practical advice based on real examples of what she and her clients have faced through the transition of divorce.
- Divorce Made Simple: Our attorneys breakdown the divorce process in a way that is easy to understand.
- Money Matters: Patrick Patino provides a fresh, insightful approach to discussing everyday finances by delving into the financial topics of everyday life.
I remember a year I had big expectations and along with them, a big discovery when they were decidedly dashed. My daughters, my mom, and I, set off on what I declared to be a great family adventure. We were going to romantically tromp through a tree farm and cut down our own magical Christmas tree. And we did… sort of. In reality, the trees were pre-cut and Sophia sighed at the lack of snow on the ground. We tried our best to ignore the frosty wind making our faces and fingers hurt while we searched for the perfect tree. But boy did we find it.
When we got home the tree barely fit through our front door. I realized all too soon that the tree looked quite a bit smaller in the open muddy field in which it was displayed. In my smallish living room, it looked like the giant tree it was. My daughters and I could barely manage getting it upright in the tree stand, only to find out I needed to cut the top off to make it fit. Fine. Off with her head. But wait, the saw had gone with my former spouse. I struggled with sweat dripping to make scissors and a kitchen knife work.
We made multiple trips to Home Depot and Target for more and more lights to get the tree covered. There was endless bickering between my girls about where each ornament should be perfectly placed. After what seemed like days of decorating the tree, we finally sat back to bask in the soft glow of our perfect tree.
That is, until my daughter Anna decided to straighten the tree skirt. She wedged herself behind the tree. The tree, in all of its massive glory, was too heavy for my 6th grader’s arms to hold. Down they both went. Water and pine needles were everywhere. I rushed to assist and got underneath to the base so Anna could help me reset the tree stand. I called for Sophia and she ran downstairs to assist. Ten minutes later, after struggling and becoming tree sapped and pine-needle poked, I pulled myself out from under the tree to find my Sophia dripping wet and naked, having come panicked from the middle of her shower. Anna started crying. Sophia was shivering. My arms were shaking. The shame of my yelling in stress at my daughters was slowly seeping over me. We were too tearful and tired in that moment to laugh at the prime time comedy in which we had been placed.
That night, Anna said, “Mom, I ruined our whole night.” I replied “No Anna, you made a memory that will last us a lifetime.” We all laughed at how ridiculous everything was about this tree and how much we loved it. This tree in all of its imperfections, frustrations, and failings was a lesson in letting go of our expectations for an ideal moment and finding the beauty in bonding (and laughing hard) over a total, but perfect, disaster.
In my own life and in listening to my clients year after year, I have found that during the holidays we are particularly susceptible to striving for perfection in every magical holiday moment. We set and live for unrealistic expectations. Once divorced, our December days with our children are limited. These days become more precious and our perfection-prone parenting kicks into high gear. Our need to shelter our children from memories of years past with extended families and their parents all joined together in celebration skews our good intentions. Divorced parents tend to overdo it. I am just as guilty as the rest.
But this ill-fitting, ginormous, and tilted tree reminded me that rarely do I recall perfect moments. I remember the funny, the fallible, the dysfunctional times. What I actually remember are the times I was being present enough to take it all in. Sitting on my couch with my girls several hours after what will now forever be dubbed as the “2015 Christmas Crash” and laughing until tears streamed down our faces is the memory that stays with me. The imperfection is what made the moment so dear.
In all of our messiness, life unfolds. No doubt, divorce is one of the messiest times you will muddle through, but I promise you that as you do, your life is still unfolding. You are on a new path, having not been able to ignore the painful parts any longer. Your new life will not unfold just the way you plan either. There will be days when the landscape was not at all how you imagined, when nothing fits, and when your dreams collapse around you no matter the might with which you try to hang on. During the holidays, in the season of pending or post-divorce, embrace the imperfections, pull yourself present, and smile at your perfect mess.
If the judge made major decisions following your trial with which you seriously disagree, you may consider an appeal to the Nebraska Court of Appeals.
People can appeal when they believe the judge made a mistake or misinterpreted the law as it pertains to the facts. Whatever the reasons for the court’s rulings, you may feel that the judge’s decisions are not ones that you can live with. If this is the case, you must talk to your lawyer immediately about your right to appeal.
You have 30 days after the court enters its final order to file a Notice of Appeal. If an appeals deadline is missed, your right to appeal is lost.
Not all orders entered during your divorce are appealable. Only final orders that end the litigation may be appealed. Temporary orders are not appealable because they are just that – temporary. If you are unhappy with the outcome of your temporary order, keep in mind that you will have the opportunity to negotiate or litigate for a different outcome at trial.
The appeals process can take anywhere from several months to well over a year. An appeal may also result in the appellate court requiring further proceedings by the trial court, which can result in further delay.
There are many steps that your lawyer will take on your behalf in the appeal process, such as:
- Identify the issues to be appealed;
- File a notice with the court of your intent to appeal;
- Obtain the necessary court documents and trial exhibits to send to the appellate court;
- Obtain the trial “bill of exceptions,” which is the written copy of testimony by the witnesses and statements by the judge and lawyers made in the presence of the court reporter;
- Obtain the trial transcript, which is a copy of the pleadings and orders filed throughout the case;
- Perform legal research to support your arguments on appeal;
- Prepare and filing a brief, which sets forth the facts of the case, errors made by the trial court, and relevant law, complete with citations to the court transcript and bill of exceptions, court documents, and prior cases; and
- Make an oral argument before the judges of the appellate court.
Filing and pursuing an appeal is expensive. In addition to the filing fees and lawyers fees, there is likely to be a substantial cost for the preparation of the transcript of trial testimony.
Your Koenig│Dunne family law attorneys are exceptionally skilled in appellate work. Consult with us today if you believe you have suffered an unfair outcome and wish to discuss an appeal.
We all play the parts perfectly. Oscar-worthy really. My daughters (13 and 11) shuffle around the house excitedly until he is found. They call out for me and I come either blinky-eyed on the weekend mornings or fairly distracted weekday morning while I finish slipping in my earrings. “Max came” they will cry out. “What? Where is he? What did he do last night?” And repeat until Christmas Day.
Max the Elf is at mom’s house. Chippy, recently more grown up and now called Charles, is at dad’s house. Max is loving. Chippy is mischievous. Max thoughtfully brings little Christmas kleenex packs for their backpacks. Chippy playfully squirts toothpaste on the bathroom mirrors.
Our elves are as different as our parenting. Each elf brings them something different. The girls love them equally.
In the early seasons of our divorce, my former spouse and I coordinated what traditions we would continue. I find it endearing that we have both continued the elf tradition for the girls, even though the magic of the elves faded a couple of years ago. The gift-giving season of Christmas can produce common parenting pitfalls. I have seen parents who work together and parents who turn a season of peace and hopefulness into a battle zone. A few suggestions to avoid these blunders:
Do Not Overcompensate. Parents of divorce more often fall into the trap of overcompensating. We believe we have added hardship to our children’s lives by virtue of having been divorced. As a result we often try to “make up” for it during seasons of gifting. Filling our homes with ever last desired gift for our children, as we all know, does not serve them well. Fortunately Pinterest saved me early on with a simple rhyme: A gift to wear, a gift to read, a gift they want, a gift they need. I have followed this rule for many years and have found it has served my daughters and me well. Decide a limit – maybe in September when the emotions of the holidays do not tempt you otherwise. Stick to it regardless of what the other parent is doing.
Do Not Compete. One year one of our client’s (mom) told her former spouse (dad) that she was going to get Ava the dollhouse at Costco for Christmas from Santa. Coordinating gift giving with your co-parent can be very useful to avoid duplicates. It is not helpful when the other parent takes this information to outdo and hurt the parent. Dad bought the Costco dollhouse and gave it to his daughter a few days before Christmas. Quite simply – don’t be a jerk. There are more than enough ways to delight your child at Christmas without ruining their Christmas in their other home.
With a little restraint and a good dose of respect, co-parenting during the holidays can produce the magic we so desire for our children. Be mindful this season of what you can do to make the holidays special. Stay focused on that which is most important. You know the role that is yours to play – the one who keeps the magic alive.
Retirement accounts are often one of the most valuable marital assets to be divided in a divorce. Regardless of whose name is on the account, retirement funds that accrued during the marriage may be divided in a divorce
“Retirement accounts” encompass a variety of accounts – individual retirement accounts (IRAs), 401(k) plans, 403(b) plans, Railroad Retirement Board Annuities, Thrift Savings Plans, Military Retired Pay or Pensions. They can be provided through your (or your spouse’s) current place of employment, former employment, or individually obtained. They can be vested or unvested. These assets will be accounted for when inventorying your marital estate.
If your decree orders that a retirement account be divided, a separate court order will need to be prepared for that division to take place. Many retirement and pension plans are split through a qualified domestic relations order (QDRO). Federal retirement plans are divided through a court order acceptable for processing (COAP). These orders help ensure that a nonemployee spouse receives his or her share directly from the employee-spouse’s plan.
Obtaining a QDRO or COAP is a critical step in the divorce process. They can be complex documents, and a number of steps are required to reduce future concerns about enforcement. Additionally, there are a number of technical rules that must be included in these orders, which must be approved by the plan administrator in order to be valid.
If you contributed to a retirement plan before your marriage, the court will most likely award your spouse only a portion of what was acquired during the marriage. It is essential to provide documentation showing the account balance before the date of marriage in order to treat that portion as pre-marital. Likewise, if you continue contributing to the same retirement account after your divorce, your spouse will still only be entitled to that portion accumulated during your marriage.
While you may have retirement accounts in your marital estate, it is not required that every account be split. For example, if you and your spouse both have retirement accounts of comparable value, it is acceptable for your decree to state that you will each keep your own. Similarly, if you wish to keep your entire retirement plan, you may offer to offset the value by agreeing to give your spouse a different asset of like value.
Important tip: Be aware that your lawyer (or your spouse’s lawyer) may argue to “tax affect” the retirement accounts. If the type of account is one that has pre-tax monies in it, and you were to withdraw the funds, those monies would be taxed. In other words, if you have a retirement account with $100,000 in it and you withdraw those funds, you would not receive the entire $100,000. If you fall within the 25% tax bracket, you would receive $75,000. Tax-affecting this retirement account alters the value from $100,000 to $75,000, which may affect the overall distribution of your marital estate.
Whether the benefits are from your employer or from your spouse’s, your family law attorneys at Koenig|Dunne will help you understand which benefits the law considers to be “yours,” “mine,” and “ours” for continuing or dividing.
With the year coming to an end, you may be delving into your finances. Your financial health and wellbeing may soon be at the top of your newly minted New Year’s Resolution list.
A bankruptcy fresh start may be the fix that you are looking for to jump start your financial wellness plan. One of the main goals of a bankruptcy is the fresh start. Think of it as wiping the slate clean. You could file a bankruptcy, eliminating all of your debt (with some exceptions) in the process. It is a fast and efficient way to put your financial woes behind you and start anew.
A common concern or fear that clients express is the negative impact a bankruptcy can have. I like to reframe that concern or fear into a positive.
Example: Bonnie has $50,000 in medical bills. The hospital sold the debt to a debt collector that has brought a lawsuit against Bonnie. She considers filing for bankruptcy, but is concerned that it will haunt her for 10 years. Eventually, Bonnie has a judgment against her for the $50,000 plus attorney’s fees. The judgement is reported on her credit report as unsatisfied. She sets up a payment plan with the debt collector for $350/month. She pays the agreed upon payment for 12 months, which costs her $4,200, but has had to stop making payments because her credit card debt has increased by $5,000 in the same time frame. She is running in place.
In that same period of time, Bonnie could have paid an experienced bankruptcy attorney to file a Chapter 7 bankruptcy. She would have already received her discharge and would have been debt free. Instead of languishing for years in a payment plan she could ill-afford, Bonnie could have filed bankruptcy and started rebuilding her credit sooner rather than later. The bankruptcy can free you from the constant cycle of robbing Peter to pay Paul. Think of the time and energy that you will no longer have to devote to shifting money around to make minimum monthly payments.
Bankruptcy is available to individuals and couples who need a fresh start. Yes, it is reported on your credit report for 10 years. However, the bankruptcy also shows that you have addressed your debt and have come out on the other side debt free. In most Chapter 7 bankruptcy cases, you wipe out all of your debts and retain all of your assets.
If you are unable to pay your debts as they come due and want to know more about how bankruptcy can be a positive experience, contact Koenig|Dunne for a free initial bankruptcy consultation. Achieving financial stability and wellness through a bankruptcy may be exactly what you have been looking for. A New Year is an opportunity for a fresh financial start.
As a child, I loved opening up the chocolate-filled advent calendar to count down the days until Christmas. However I did not love the part about having to take turns with my siblings and thus only getting to gobble down a chocolate every third day. Now as an adult, I am feeling the same frustration show up in the face of having to share my daughters with their dad during the holidays.
In this season, I find the time is starting to slip further away. Not only do I have shared parenting time with my former spouse, but now my children are getting to the age where they are more interested in filling their time with friends instead of family during the coveted days off of school. I find myself struggling with the nuances of this new reality. It reminds me of being newly divorced and having to get through those first years of co-parenting holidays when those special days starting rotating and it meant I would miss actual holidays altogether with my children.
In the first years, my only strategy was to mope. In fact, I fancied myself an expert “moper” when it came to missing holiday or special occasion time with my daughters. When I saw that my poor attitude was impacting the rest of my family and their enjoyment of the holidays, I knew I had to make a shift in strategy. Over the years, I have found the following to be helpful.
Be Intentional. Get clear about how you want to show up during the holidays with and without your children. What are your expectations versus the realities when looking at your emotional, spiritual, physical, and/or financial needs or limitations? What do you need at this time or what do you want? What don’t you want?
Create Your Calendar. Going to a long stretch without your children during winter break? What would bring meaning to the season during times when you may be alone? Working more? Volunteering? Tackling an outstanding project at home? Map out the days to assess whether your expectations, wants, and needs can be met with reason. If not, start prioritizing and mapping it out on your calendar to bring clarity to what the days will look like. Are you allowing for rest? Are you providing time for spontaneity?
Use Support. You will need support and accountability during these days. Who is going to check in on whether or not you accomplished that winter hike you were talking about? Who will be your mope buster?
With these strategies in place, here’s wishing you a holiday season where every day is savored whether you have to share or not.
When crafting your parenting plan with your co-parent, you have to specify which parent will have your children for which holidays. Typically, the major holidays are alternated annually. However, if a parent has particular holidays that are especially important to him or her, accommodations can be made.
You may hear your holiday parenting time schedule referred to as “Wilson v. Wilson” parenting time. This refers to the Nebraska Supreme Court case where major holidays were identified and time sharing explained. Wilson identified the following holidays as “major”:
- Memorial Day weekend,
- Fourth of July,
- Labor Day weekend,
- Christmas (may split into Christmas Eve and Christmas Day), and
- New Year’s Day.
Usually, your plan will identify which parent has which holidays in even-numbered and odd-numbered years. For example, your plan could state that the above-listed even-numbered holidays will be the mother’s in even-numbered years (and the father will have the even-numbered holidays in odd-numbered years). Additionally, most plans include Mother’s Day and Father’s Day as major holidays.
If you do not celebrate some (or any) of these holidays, you and your co-parent may modify your holiday parenting time schedule to include those you do observe. For example, plans may include Rosh Hashanah, Yom Kippur, Hanukkah, Valentine’s Day, or Halloween. Plans may also include provisions for the children’s or parents’ birthdays.
Holiday parenting time will almost always supersede regular parenting time. Some parents may consider splitting holidays, however, doing so is discouraged. Splitting holidays can create stress for both your children and you, especially when attempting to end the fun time your children are having at the earlier celebration. While you may agree to celebrate holidays jointly with your co-parent, be aware that your co-parent may bring along a significant other, spouse, or other children.
Nebraska law requires that the seven major holidays plus Mother’s and Father’s Day be listed in your parenting plan, even if only to state that regular parenting time will control for the holiday.
You may find the following table helpful in determining your holiday parenting time schedule:
As holiday time is almost in full-swing, it is important for you and your children to have clarity and peace-of-mind regarding holiday parenting time. Your family law attorneys at Koenig│Dunne are skilled at developing creative solutions to accomplish your holiday parenting time wishes.
When developing your parenting plan, you and your co-parent will craft a routine parenting time schedule, setting forth specific days and times when each parent will have parenting time. The parent exercising parenting time has the power to make every day parenting decisions during his or her time.
Some parents assume that if the “on duty” parent is unable to watch the child(ren), he or she will automatically call the other parent before finding alternate child care. However, no law requires this. Instead, you and your co-parent have the option of including a provision known as the “right of first refusal” in your parenting plan.
This provision requires the parent in possession of the child to first contact the other parent to allow him or her the option of caring for the child when he or she must arrange for alternate care. It is recommended to include a certain number of hours which triggers the right of first refusal provision.
EXAMPLE: At any such time as one of the parents shall not be able to provide his or her personal care of the minor child(ren) of the parties for a period of 24 hours or more, the other parent shall have the right to elect to provide said care before all others, including grandparents, stepparents, aunts, uncles, and friends.
If the “on duty” parent is going to be unavailable for any amount of time less than the what triggers the right of first refusal, he or she would not be required to contact the other parent first. For instance, if one parent is unavailable for two hours, and the right of refusal includes an eight-hour provision, that parent would not be required to call the other parent before finding alternate child care.
The right of first refusal requires the possessory parent to contact the other parent first. It does not, however, require the non-possessory parent to provide care. Parents choosing to include this right in their parenting plan should communicate with one another in a way that allows the “off duty” parent the most time to make arrangements in order to provide care and the “on duty” parent enough time to make alternate arrangements if the other parent cannot provide care.
Generally, the right of first refusal should not apply to periods of time during which the possessory parent is working his or her regularly-scheduled work hours and the child would normally be in school or child care.
It is important to note that the right of first refusal is not appropriate in every case, and can be very problematic for some parents. If you and your co-parent do not get along or communicate well, this provision is discouraged. If you do agree to include this provision, carefully think about the minimum number of hours required to trigger the provision. In most cases, anything less than eight hours is not advised.
The family law attorneys at Koenig│Dunne can counsel you regarding whether this provision is advisable for your unique circumstances.
“I think the toilet is leaking,” my wife tells me as I walk into our house after work. She requests that I go double-check. In my infinite wisdom, I flush the toilet and water begins leaking at the base. During the past two weeks, the tank had started to wobble, but I largely ignored it. I turned off the water line. Off I rush to purchase a new toilet. The number of toilet options is both overwhelming and astonishing.
Standing in the aisle, I text my wife, instructing her to go measure the height, length, and depth of the toilet. In my haste to save the day, I didn’t bother to do that before I jettisoned out of the house. After some thought and consternation, I choose the Kohler toilet that was on sale. It comes with all the parts that I will need and claims to be a quick and easy install. For the price, it better be, I think to myself. I could pay someone for the installation like I did for the hook-up of our stove to the gas line. Because I didn’t want to blow up my house, I thought that was worth it. For this, I’d risk doing it myself.
After lugging the new toilet home and upstairs, I took to YouTube for some guidance. It took two attempts to secure the toilet to the floor with the new seal (because it never goes 100% well on the first attempt). I then went to secure the water line. It was too short. So it was back to the store for the second time to get a longer water line (because you never escape a home project with only one trip to the hardware store). In the end, I flushed the toilet, beaming with pride because I had successfully installed it myself. Still not thinking myself to be very handy.
My mom taught me that sometimes you spend a little bit more for something you know you’ll use often and for a long time. Sometimes mom knows best. Luckily, I didn’t wait any longer to fix the problem because the couple hundred dollars could have turned into a couple thousand dollars (or more) to repair plaster, replace rotten wood, or worse.
Making these kinds of decisions can be stressful. That $200 toilet could have been $500 for new car tires or a $6,500 deductible for unexpected medical care. It can happen in a flash. Sometimes you can solve the problem yourself. Sometimes you have tried to solve the problem or have become overwhelmed and don’t know what else to try. When you are looking for support and guidance to solve your financial problems, Koenig|Dunne is here to help. Don’t wait.
“Why does everyone think we have a favorite?” Sophia said. Anna replied, “Yeah. It’s like asking a parent if they have a favorite child. Everyone knows you can’t pick and that you love them the same.” In a rare moment, my girls sat on the kitchen stools chatting happily at me while I made dinner. Topics moved from homework to plans with friends and took a surprising turn when, after asking about my day, they started talking about being kids of divorced parents.
My daughters obviously know my profession and they also know that I often write parenting advice for divorced parents. Needless to say, we are open in our household about discussing divorce. In this moment they were sharing with me that the most often asked question by their peers is who their favorite parent is. They were frustrated that the assumption was made that just because their parents were divorced, they would have a favorite. My sassy Sophia said she likes to reply, “Well, who is yours?”
Wait a minute, girls. You mean I am not your favorite, the bubble above my head nearly blurted. Despite hearing them complain about meals made and chores to be done at their dad’s house, they still didn’t have a favorite? Wait another minute. My girls were shining a light on a closely-held assumption made by most parents of divorce. Whether seeking an initial award of custody, mediating a parenting plan, or living a co-parenting reality post-divorce, most people, and more importantly, parents of divorce – fall victim to this same fallacy.
We are as certain that there is a favorite parent as we are that there exists a better parent. Parents and their collective family and friends often solely focus on wanting to prove whom the better and favorite parent is. It seems logical and intuitive that the favorite parent would be the best for the children – right?
Then I heard my daughters discussing the impracticality of picking a favorite parent. I heard it for the first time from the perspective of a child. Surely I had observed the discomfort of children in trying to do so dozens of times. Children sit in the judges’ chambers to be interviewed about their parents. They often cry. They say with certainty they love both of their parents. They are plagued in the middle because they simply cannot choose. Just like most of us parents could not choose if asked to pick one child to live with over another. (Although I found my daughter Sophia’ bedroom floor covered in spilled slime today so that decision would be easier for me at this moment…)
We should be mindful of allowing our children the freedom to love. Regardless of parenting time, custody decisions, or which house has the better bedtime, my daughters were unknowingly teaching me that what will always be in the best interests of children is to be able to love their parents equally.
I sat with a mess of memories in front of me. Reflections from our fishing trips, vacations to the beach, our wedding, the births of our babies – all in shiny ornaments to be boxed away with the holidays now over. The tree ornaments were a reflection of our collective identity as a couple. We had been compiling this collection for nearly a decade spent together.
The usual post-holiday sadness set upon me. But this year there was so much more – I felt desolation. I was aware my marriage was failing. It was hard, empty, and lonely. Our moments of heartfelt touches were fewer and farther between. Our daughters were young – one just out of diapers and the other just two years older than her sister.
I started sorting and separating. The Dallas Cowboys ornaments would go with him. The Shakespeare bust tied on a string to me. Our wedding, Our First Home – I put them in the bottom of my box. I placed the heart with our eldest daughter’s name and birth year etched in shiny gold in his box. I put our youngest daughter’s in mine as tears rolled down my cheeks.
The next year I felt embarrassed and heartbroken when I unpacked the boxes for the holiday season and remembered what I had done. We were still married. My marriage no better off than the year before – the only change the expanse of distance between my husband and me. I repeated the ritual of sorting and separating for two more years before we decided we would divorce.
Looking back I see I was attempting to prepare myself for the hardness that would be living as a divorced family. I was testing out the feeling of living separate but same for the sake of our daughters. The truth is the divorce decision is often years in the making.
It is not unusual that I see men and women on multiple occasions before they are ready to file. It can be months or years in between. They come back to me sheepishly cloaked in their embarrassment, regret, and sadness. “I don’t know why it took me so long.” “I should have filed years ago.” “Why did I think it would change?” “Why have I accepted this behavior (drinking, abuse, adultery) for so long?”
I can relate to these swirling incessant questions and the feelings of shame: Not only for seeking a divorce, but in having waited so much longer than seems healthy. Once the divorce decision is made, the hindsight illuminates the path we have recently traveled making our uncertainty seem confusing.
Whether you have arrived at the decision, are contemplating it or made the decision long ago, the truth about timing is that it takes time to separate from the commitment your heart made. There is no richer an investment that the one we make in our family. When you have given your whole heart to the beautiful collection of memories and moments, deciding to let it go is not an easy thing to do. But like the holidays, every beautiful season comes to an end.
If your marriage lasted 10 years or more, and you are now divorcing, you may be able to receive Social Security benefits on your soon-to-be former spouse’s record (or vice versa). In order to receive these benefits on your former spouse’s record, the following criteria must be met:
You must be unmarried.
At the time your former spouse is eligible to receive Social Security benefits, you must be unmarried to receive your portion. If your former spouse has remarried, your ability to receive benefits on your former spouse’s record will be unaffected. If after your divorce you remarried, but that marriage ended, you would still be able to receive benefits off your first spouse’s record, assuming you meet the other criteria
You must be 62 years old (or older).
You will not see any Social Security retirement benefit before you are 62. Likewise, your former spouse must also be 62 or older. If your former spouse is 62 or older, but has not yet applied for retirement benefits, you can start receiving your benefit on his or her record as long as you have been divorced from your former spouse for at least two years.
Your former spouse must be entitled to Social Security retirement or disability benefits.
Your former spouse must have a work record from which he or she will receive benefits.
The Social Security benefit you would receive is less than the benefit you would receive based on your former spouse’s record.
If you worked and are able to apply for your own Social Security benefits, you may still be able to claim an additional amount based off your former spouse’s record. In order to do so, the amount you would receive on your own must be less than the benefit you would receive from your former spouse’s record. You will receive an additional amount on top of your benefit in order to equal the higher amount you would otherwise be entitled to.
All of the above criteria must be met in order to receive benefits based upon your former spouse’s record. If you meet all of the above criteria, your benefit is equal to one-half of your former spouse’s full retirement amount or disability benefit.
Because Social Security benefits are a federal benefit, Nebraska state courts do not have jurisdiction to divide benefits in your divorce decree. Federal law, instead of state law, controls.
Planning for future benefits can bring peace of mind during this time of emotional upheaval. Your experienced family law attorney will be able to educate you regarding all the benefits you can receive post-divorce. Ask your attorney how you can maximize the future benefits to which you are entitled.
With trick-or-treating behind us, it is time to turn our attention to the fast approaching Holiday season. During the Holiday it is easy to get carried away with spending, buying gifts for your family and friends, traveling, and purchasing food for Holiday feasts. It is such a season of giving that you may find that you leave yourself with very little to ring in the New Year. Recently, American spending and household credit card debt has been on the rise coinciding with a decrease in household savings.
When your spouse really wants that Apple Watch or your kids need a new smart TV for their room, it may be hard to turn them down. Instead of relying on a budget, you may put those purchases on an existing credit card or open up a new retail credit card to take advantage of the Holiday deals. In my experience, it may be the first time of the year that someone deeply reviews his or her finances and credit card debt accrued over the last 12 months. The realty may not be all that jolly and bright.
When approaching how to finance the Holiday, keep these tips in mind:
- Create a budget. Write it down and stick to it. Seeing how much you are planning to spend or have already spent will keep you focused. It is a lot harder to make that ultimate financial decision at the online check out without first having a plan and budget in place.
- Be okay with saying “no.” You might not be able to fulfill everyone’s wish list this year. Don’t feel as though you have an obligation to buy a gift for every friend and relative. In my family, we have decided that we will draw names for who will buy a gift for whom. That way everyone still receives a gift.
- Avoid retail credit cards. No matter how much GAP Cash or Kohls bucks are thrown your way, you need to avoid these high interest credit cards. You’ll be paying on that Xbox you buy your son with your Best Buy Credit card for way longer than had you just saved the money monthly and bought one without credit.
- Do not buy anything at a rent-to own store. That $500 TV may end up costing you up to five times that amount by the time you pay off the agreement. For a weekly payment of $50, you could have just saved for 10 weeks and purchased the same TV outright.
- Resist the urge to obtain credit through an online retailer. In recent years, I have seen an increase in clients owing places like Fingerhut for Christmas gifts they bought their children. You end up paying for those toys and tablets many times over if you ever pay off the debt in full. You may be catching a theme here.
- Start saving. It is never too early to start saving now for next year’s Holiday spending. Start setting aside an amount per paycheck or designate an amount from your tax refund that you will save for the next Holiday season.
- Get creative. There are other ways to express your gratitude for those you love. Create a special experience or take the time to personally make a gift. After all, it is the thought that counts. A gift does can cost as little as $0.
I promise I am not trying to be a Scrooge. The Holiday are stressful enough. If you have a firm grasp and control of your finances, you take one stressor off your plate so that you can be okay with eating an extra one or twelve of Grandma’s chocolate chip cookies. If after reviewing your Holiday finances, you need some support and guidance, Koenig │Dunne can help you make the right decisions for a Happy New Year.
On Halloween night I sat on my sofa with a ho and a hum. This was the first year I did not spend part of the trick or treat festivities with my daughters. My eldest goes with friends now and needs no help with costume assembly. I didn’t even see her this day. My youngest still came to my house so I could curl her hair, but then off she went at 4:30 to her dad’s house to put on her costume and laugh into the night gathering candy.
Seven years of co-parenting and I still hate holidays without my children. I feel the empty-nesters who may be reading this sighing and nodding their heads with me. It is inevitable that some of the holiday magic disappears when not accompanied with the enthusiasm of children. Halloween is one of the few nights of the year that you cannot celebrate it on another night like you can with birthdays or Thanksgiving. And unlike the empty nesters who have resigned themselves to their grown-up children, mine still produce the magic. They just produce it every other year with me.
I thought I might perk myself up by looking at the next two following months that would surely be filled with holiday cheer and family fun. I gleefully printed some calendars and set to work with the list the girls and I had prepared of the things we wanted to do this holiday season. Oh. Our list of favorite holiday activities is long. Geez, we only have four weekends together before Christmas is over. Four weekends. Eight days to cram in all of our family festivities for Thanksgiving and Christmas.
The grumpy I had just gotten over returned with a renewed fierceness. My mood crumpled just like the paper calendar I had wadded into my fist. It’s not fair. I hate this.
I knew what I had to do. I smoothed out the calendar. I looked back at the list of our favorite things to do. I started prioritizing the list. I looked at how we could combine activities. I looked at what I was willing to let go. When we picked up their cousins for Polar Express night, we could pick the very best neighborhood for a 20 minute detour and enjoy the sparkling Christmas light. This year we could make our decorated sugar cookies for our annual Luminary party.
I looked closely at those things that mattered most. I looked beyond my list. What matters most are the minutes spent together. It isn’t making sure we perfectly check off all of our traditions in the right order. It is making sure we make the most of our time together. Navigating our holidays may be more nuanced now, but I see that we are more intentional and clear about what is most important – being present to the love we share.
The federal government allows taxpayers to exclude from their income an exemption amount for each person who is a dependent of the taxpayer for that taxable year. You can claim a tax dependency exemption if you are a parent who provides support to a dependent minor child. But what happens after divorce when you no longer file joint returns? In Nebraska, the tax dependency exemption is considered an economic benefit similar to an award of child support or alimony. If the parents do not agree how the exemption should be allocated, the judge hearing the divorce case has the power to determine which parent gets to claim the exemption. It may be fair to award the exemption to one parent every year, it may be inequitable to allow a parent to claim the exemption, or it may be fair to award the exemption to both parents on an alternating basis. How will a court decide?
Generally, the custodial parent is entitled to claim the dependency exemption because he or she has the child in his or her care for a majority of the taxable year. It is presumed that a parent with sole physical custody is likely to incur more expenses for the child, so allowing the custodial parent to claim the exemption is fair. However, this is a presumption that may be rebutted. If the non-custodial parent wishes to claim the exemption, whether every year or alternating years, he or she will have to show that he or she provides financial support to the child and should be entitled to claim the economic benefit.
If you are the non-custodial parent, you may be entitled to share in claiming the tax dependency exemption if you:
- Pay child support;
- Contribute to your child’s work or education-related day care expenses; or
- Contribute to your child’s medical expenses.
However, courts have held that a parent who pays a “relatively small amount” of child support may not be entitled to share or claim the exemption. The primary purpose in reallocating the exemption is to allow the parent financially supporting the child to have more disposable income from which to make such a payment. If a parent’s child support obligation is relatively small, then the parent who pays the majority of the child’s expenses should get to claim the exemption.
If there is more than one child for whom the exemption may be claimed, you can get creative on how the exemptions should be allocated. Here are some common ways the exemption(s) is allocated between parents:
- If there is one child –
- One parent gets to claim the exemption every year, or
- The parents alternate the exemption, with one parent claiming in even-numbered years and the other claiming in odd-numbered years.
- If there are two children –
- One parent gets to claim both, or
- Each parent gets to claim one and when there is only one child for whom the exemption applies (e.g., the older child turns 19), the parents alternate the exemption.
- If there are three children –
- Each parent gets to claim one, then the third exemption alternates, or
- One parent gets to claim two, the other claims one, or
- One parent claims all three.
Some helpful notes:
- If your decree does not specify who gets to claim the exemption, the federal government will presume the custodial parent should claim it.
- In Nebraska, a parent is only entitled to claim the exemption if he or she is current in his or her child support obligations.
- If you are the custodial parent and you are releasing your right to claim the exemption (whether it’s because your decree orders you to or otherwise), you will need to execute IRS Form 8332, found here, in order to formally release your claim to the exemption.
When choosing your divorce attorney, look for one with the knowledge of how the courts and the tax code impact your financial future.
Halloween is one of my favorite nights of the year. Particularly when it lands on a cool, windy evening and you can hear the leaves crunching and rustling underfoot as the children laugh up and down the sidewalks before shouting “trick or treat” at doorsteps. I enjoy the occasional whiffs through the air of burning pumpkin and the taste of the crispy Kit Kat that I inevitably steal from one of my daughters’ treat bags by the end of the night.
What I do not enjoy about Halloween is the feeling of being scared. I would no more willingly walk into a haunted house to be terrorized than I would send one of my children out into a busy lane of traffic. I do not enjoy the feeling of total and complete vulnerability. I do not like the unknown or unseen. I do not like the uneasy feeling of not being able to plan for my future.
Divorce may be one of the scariest life events for a person. Undeniably, at some point in the divorce process, a person will feel terrified. Whether it be from having to put in writing and fully disclose the status of their debt load, or whether it is not understanding words like “praecipe” or “subpoena,” or whether it is not knowing if they will spend Christmas with their child this year, going through a divorce is scary.
Next to grief, fear may be the most prominent feeling during divorce. Fear can stunt progress and keep you stranded in depression. Managing our fear is an important part of parenting during divorce. When people are scared they usually revert into survival mode. They will react in one of the fight, flight or freeze responses to the divorce process happening around and to them. This oftentimes makes it challenging to discern or remember what their true intentions are or what their primary goals and most important outcomes may be.
It is useful to remember that it is okay to feel scared silly during divorce. It is normal. It shows up like this:
I am scared that my former spouse:
Will drink and drive with our children
Will forget to give our child their inhaler
Will not follow the bedtime routine
Will not make sure the homework is done
Will only eat fast food with our kids
Will not notify the summer camp of our son’s allergies
Will not let me talk to our children
Will talk bad about me in front of our kids
Will expose our children to their new relationship too soon
When fears creep up for you, ask your lawyer, your financial advisor, your counselor, your mother, or your best friend to help you brainstorm thoughts or actions to replace the fear which can paralyze you, make you combative, or lead to driven behaviors. Peeling away the layers will make the fear smaller and smaller. The paralysis will lessen and we will find ourselves with the ability to keep moving forward.
While all divorces are challenging, military service presents unique and complex issues for service members and their families to navigate. Whether the former spouse of a service member may retain health insurance coverage through TRICARE is one.
TRICARE is a health care program for uniformed service members and their families. Depending on several requirements and criteria, it may be possible for divorced spouses to remain covered under TRICARE and receive the same benefits as the service member.
TRICARE Coverage under the “20-20-20” Rule:
If the service member has completed at least 20 years of creditable service, the spouses were married for at least 20 years, and all 20 years of marriage overlap the 20 years of military service, the former spouse will remain eligible to receive TRICARE benefits.
TRICARE Coverage under the “20-20-15” Rule:
If the service member has completed at least 20 years of creditable service, the spouse were married for at least 20 years, and at least 15 of the years of marriage overlap the 20 years of creditable service, the former spouse will remain eligible to receive TRICARE benefits for 1 year after the divorce is finalized.
For those former spouses that do not meet either the “20-20-20” or the “20-20-15” Rules, the former spouse’s TRICARE benefits will end at 12:01 a.m. on the day the divorce if finalized. For those former spouses, it’s important to seek alternate health care options.
One option the military provides is the Continued Health Care Benefit Program. The Continued Health Care Benefit Program is a premium-based plan that provides temporary health insurance coverage for former spouses for up to 36 months after the divorce is finalized.
Losing Eligibility for TRICARE Health Insurance Coverage
After your divorce, a former spouse can lose eligibility for TRICARE coverage if he or she remarries or purchases and is covered under an employer-sponsored health insurance plan.
The Affordable Care Act, a federal law, requires most people to carry health insurance. If you choose not to enroll in a health insurance program after your divorce, you may face a tax penalty. Don’t wait until after you are divorced to begin to consider your options. Do your research, pay attention to deadlines, and be sure to factor the future cost for health insurance into your post-divorce budget.
One of the main stressors leading to divorce is debt. Debt may be a main point of contention before, during, and after divorce. You and your former spouse may have decided to split all of your debt 50/50. You may have kept only the debts in each of your respective names. Your spouse may have agreed to refinance the home mortgage to remove your name. The multitude of outcomes depends on the unique facts of your case. However, no matter the outcome, you believe that you resolved the debt issue once and for all when your divorce decree was finalized. If only it were that easy.
What does a divorce decree really do with debt?
Removing the romance, marriage and divorce is simply an agreement between two people. Debt is typically owed to a third party. A divorce decree states how the marital and non-marital debt is to be handled between the spouses. It does not impact the third party creditor’s rights. If, in the future, one spouse does not follow the decree, the creditor who is owed the money does not care what your decree says. They weren’t a party to the divorce
For example, suppose as a part of the divorce, Spouse A agreed to pay 100% of a joint credit card. In the future, Spouse A becomes unemployed and stops paying the credit card payment. The credit card company will seek payment from Spouse B as well. It won’t take into consideration what Spouse A and Spouse B agreed to as a part of the divorce.
What happens when a person files for bankruptcy after a divorce is final?
The federal bankruptcy law’s impact on divorce-related debt can be daunting and confusing. Many times, Spouse B receives the bankruptcy notice without any forewarning from Spouse A.
If you are Spouse B, you have no idea what this means and how it impacts the debts you had dealt with in your divorce. Your spouse agreed to pay 100% of the credit cards that were in both your names. Chapter 7 and Chapter 13 bankruptcy treat divorce-related debts in different ways.
In a Chapter 7, the filing ex-spouse may be able to discharge or eliminate his or her obligation to the credit card company. However, the filing ex-spouse is not exempt from the obligation to the non-filing ex-spouse to repay 100% of the credit card debt pursuant to the divorce decree. The person filing the bankruptcy may not ultimately receive as a fresh of a start as originally thought.
In a Chapter 13, the outcome is different. The filing ex-spouse can discharge their obligation to both the credit card company and the non-filing ex-spouse to pay 100% of the credit card debt pursuant to the divorce decree. This is sometimes referred to as the super-discharge. It may be the main motivating factor for filing a Chapter 13 over a Chapter 7.
What to do if you’re struggling with divorce-related debt?
Meet with an experienced bankruptcy attorney who is well-versed in divorce-related debt issues. At Koenig|Dunne, we are here to help you when divorce and debt collide.
October is Domestic Violence Awareness month, so we are again sharing Susan’s personal journey on today’s blog.
Domestic Violence Awareness Month was launched nationwide in October 1987 as a way to connect and unite individuals and organizations working on domestic violence issues and raise awareness for those issues. For more information on their work and to obtain additional resources, visit their website http://ncadv.org/
We argued about the garlic in the guacamole. He stormed outside. I stood at the bathroom mirror focusing my shaking hand on my mascara when I heard the front door open and his footsteps on the stairs. He opened the bathroom door, punched me in the stomach, and calmly said, “Now you can tell your friends I’m abusive.”
I was young but I was strong. Confident. Independent. How was I reduced to justifying the purchase of a two dollar tube of lipstick and defending why I wanted to see a movie with a girlfriend? How did I stay with a man who threw the bowl of my freshly made pasta against the kitchen wall as I set the table, cracked the windshield with his bare fist as I drove, and smashed the bouquet of flowers against the mantle as I wept?
Despite knowing that domestic violence is the misuse of power and control, I couldn’t see it clearly when I was in its midst. I compared myself to those I considered “real” victims—the ones with blackened eyes and broken bones and battered children—-as I denied my own reality.
October is Domestic Violence Awareness Month. Despite decades of public education and the fact that one of every four American women reports being physically abused by a spouse or partner at some point, many people still don’t understand intimate partner abuse. Being a divorce attorney taught me that whether you are a welder or an accountant, rich or poor, a Gen Xer or a boomer—you are not immune.
How was I able to move on? First I had to tell the truth to myself. What helped was others gently asking about what I failed to see. “Is this the first time he hit you?” “Do you think that’s normal?” The concerns of others—shared without judgment—helped me to see the seriousness of my situation. “I just called to see if you were safe. I’m worried about you.”
I was lucky. I had enough income, a number of options, and lots of support. The thousands of victims who are killed each year aren’t as lucky.
If you or someone you know is experiencing the warning signs of domestic abuse, let in support now. Call the 24 hour domestic violence hotline at (800)799-SAFE(7233). Develop a safety plan. Call an attorney knowledgeable about protection orders. Don’t wait.
Domestic Violence Awareness Month is the time to be aware of the risks, your rights, and the next small step forward for your family’s future. As for me, the only regret I ever had about my first small step was that I didn’t make it sooner.
“Going to court” can mean many different things during the divorce process. You may have to go to court for a hearing, a pre-trial conference, or trial. Sometimes it is permissible for your attorney to appear on your behalf without the need for you to go. Sometimes the judge will want to hear you testify. Sometimes the judge will read your sworn statement and listen to the lawyers’ arguments in order to make a decision.
The thought of going to court can be anxiety-provoking. The fear of the unknown may set in. It is important to communicate with your attorney so you know what to expect. Your attorney can explain the process in advance. If you do go to court, know that your attorney will be with you at all times to support you.
When a court date is set, we will let you know. As soon as you receive notice from your attorney, confirm whether your attendance is required, and mark the date on your calendar. Your attorney will be able to tell you whether the judge will make his or her decision based on affidavits (sworn statements) and arguments by the attorneys, or if the judge will hear live testimony. In some cases, the parties will wait while the attorneys meet with the judge in his or her chambers (office). Each judge runs his or her courtroom differently. Rely on your lawyer’s expertise in preparing for your specific hearing.
If you plan to attend the hearing, let your lawyer know and determine where and when the two of you will meet. Make sure you know the location of the courthouse, where to park, and the floor and courtroom number. Decide what you’re going to wear. Business casual attire is usually appropriate. Do not wearing anything distracting, such as flashy jewelry. You want the judge to focus on the issues, not your attire. Planning such simple matters ahead of time will alleviate stress. Sometimes having additional support, such as a friend or family member to accompany you, may be appropriate. Talk with your attorney first to see whether this is advisable.
If you are afraid to see your spouse at the courthouse, make your lawyer aware of this fear. There are options to minimize contact with your spouse. Your lawyer knows the layout of the courthouse and will be able to make sure you are comfortable as possible in your surroundings.
Divorces will proceed to trial if settlement negotiations fail. Your lawyer will help you fully prepare for this court appearance. There are no juries in family law matters, and usually, the only people who will be present in the courtroom are the judge, court reporter, attorneys, you, and your soon-to-be former spouse.
In some cases, there will be many hearings (often on procedural matters that do not require your attendance). In other cases, you will never step foot in the courthouse. It all depends on your unique circumstances. Going to court is not an inevitable part of the divorce process. And if you do have to go to court, lean on your legal team to fully support you.
This blog is made available to the reader by Koenig|Dunne for educational purposes only, to provide general information and understanding of the law, and not to provide specific legal advice. By reading this blog, no attorney-client relationship is developed between the law firm and the reader. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. The content of this blog is not an advertisement for legal services.