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FS-Time Limit Alimony & Are Taxes Due?
Jan L. Warner & Jan Collins
Question: After endless litigation, the judge ordered that my wife receive our home without debt, 40 percent of our savings, a third of my retirement, $1,750 as monthly alimony, and college education expenses for our youngest daughter.
I agree that my wife needs help to support herself after our 30+ year marriage because she stayed at home to raise our three children, but I believe that a fairer solution was to limit the time I am required to support her. Otherwise, my payments to her would be a disincentive to keep her from improving herself, getting a job, and remarrying. I want to appeal this to a higher court, but my lawyer tells me I will be wasting my money. Why don't courts consider this type of alimony?
Answer: Assuming the law of your state authorizes time-limited types of alimony, and assuming your lawyer tried to persuade the judge to "time-limit" your wife's award of alimony, the court may have considered, but rejected, your position. Although rehabilitative or other short-term support is appropriate in some situations, from what you describe, this isn’t one of them.
We know of few employment opportunities for women over 50 who have limited skills, no work experience, and have been in the home for 30 years. Additionally, we don't believe your spouse should be forced to remarry in order to find a second spouse who will provide her with the support to which she is entitled.
We agree with the court that your wife’s support is your responsibility for the long-term, in sickness or in health. This is especially true when, after reaping the benefits of your wife staying home, taking care of children, and not entering the job market for 30 years, you complain about long-term alimony when it's time to pay up.
Still, considering your former wife’s age, there is a way to reduce -- or even terminate -- long-term alimony awards should she become chronically ill and require home or institutional care: As part of the package, you, as the paying spouse, could purchase a policy of long-term care insurance so that, should she require this type of care, the amount paid by the long-term care coverage could reduce or supplant the alimony award.
Question: After months of negotiation, my wife and I agreed that she would receive 45 percent of our assets, including my 401 (k). While I have agreed to transfer the house and other assets totaling 45 percent, there are lingering questions about taxes that I don’t understand. What do taxes have to do with transfers between spouses?
Answer: Taxes have nothing to do with transfers between spouses because, when non-qualified assets – i.e., assets other than 401 (k)’s, IRAs, and other retirement-type plans -- are transferred from one spouse to another as part of a matrimonial asset division, there are no taxes generated. This means that the receiving spouse takes appreciated assets at the same cost basis of the transferring spouse. Which, in turn, means that if the receiving spouse then sells those assets, taxes will be generated on sale. An exception to this rule is the transfer of the former marital residence because, if the rules are all met, the subsequent sale may not generate taxes.
On the other hand, since qualified funds cannot be transferred directly from spouse to spouse without incurring substantial income taxes, the use of qualified domestic relations orders can avoid the taxation.
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