Law Office of Joanne Kleiner

Assets

Mar 07

The Key Differences Between Separate and Marital Property

How to Classify an Asset for Property Division Purposes

You may believe that you are at risk of losing half your belongings if you leave your spouse. However, this isn’t necessarily the case. Instead, you generally only risk losing a portion of the assets held inside of the marital estate.

What Is the Marital Estate?

Generally speaking, any assets that are acquired during a marriage are considered to be part of the marital estate. This may be true even if only one person’s name is on the deed or title to the asset. For instance, if you buy a home with your spouse, you generally have an ownership interest in that home even if it is held in your spouse’s name.

It’s also worth noting that price appreciation that occurs in a separate asset after marriage becomes official may be part of the marital estate. For instance, let’s say that you own a home that is worth $100,000 on the date of your wedding. Let’s also say that the home is worth $200,000 when your divorce becomes official.

Your spouse will likely be entitled to a portion of the $100,000 in price appreciation that took place while you were married to them. It’s worth noting that they would be responsible for paying capital gains taxes on any profits that they received from selling a joint asset obtained in a divorce settlement.

What Is Commingling?

Commingling can occur in several different ways. For example, if your spouse deposits money into your personal bank account, that asset may now be considered joint property. The same may be true if your spouse used their money to make repairs to your home, car or other property. Separate assets may become joint assets because you failed to keep accurate records of when they were acquired and who paid to obtain or maintain them.

Tips for Retaining Control of Property After Getting Married

The use of a prenuptial agreement may make it easier to exempt property from being distributed to your spouse in a divorce settlement. Such an agreement may stipulate that your business, home or other property is to be classified as separate property. A divorce lawyer may be able to help you draft a prenuptial agreement that is likely to hold up under scrutiny.

If you aren’t able to create such a contract before your wedding takes place, you can draft a postnuptial agreement after your marriage becomes official. Regardless of when this type of agreement is executed, it’s important to allow your spouse to review it with their own attorney. This may help to ensure that the document won’t be invalidated based on a claim that it was signed under duress.

Putting assets into a trust may also be an effective way to retain control of them after a divorce. In most cases, property held in a trust is considered to be kept outside of the marital estate. Of course, your spouse may challenge the validity of the trust, and it’s possible that a judge will nullify it in the event that the document is not structured properly.

Certain Assets Won’t Automatically Become Part of the Marital Estate

If you received an inheritance while you were married, it remains a part of your separate estate. The same is true of anything that you received as a gift from your spouse, a friend or a family member. Of course, these items can become joint property if they are commingled, which is why it may be best to keep them in a separate account or place them in a trust.

If you need the assistance of a divorce lawyer, you’re encouraged to contact the Law Office of Joanne Kleiner at your earliest convenience. You can call our Jenkintown office by dialing (215) 886-1266, or you can fill out and submit the contact form located on our website.

Oct 18

How to Split the Family Home in a Divorce Without Going to Court

Ways to Fairly Divide Your Home With Your Ex

Since a home is most people’s largest asset, it’s no surprise that property disputes are one of the biggest reasons for fights during divorce proceedings. If you are not interested in a court battle, it is a good idea to be flexible and talk about your options. Here are some ideas for how you and your estranged spouse can fairly divide your family home.

Exchanging the House for Other Assets

The first thing to recognize is that it’s not technically necessary to split the house. During a divorce, you are splitting all the assets you and your partner contributed to. So if one person really loves the house and the other person doesn’t care at all, it may be worthwhile to just let that person have the house. To keep asset division fair, your divorce lawyer might suggest that the other spouse gets things like a bigger portion of a retirement fund, more of the joint savings account, or possession of other property. This solution works best in cases where couples have a lot of assets, so a house is just one of the many things to negotiate. It may not be possible if all your funds are tied up in the value of your home.

One Partner Buying Out the Other’s Share

This option is popular in a divorce where you want to split all assets down the middle, but one partner wants the house more than the other does. On the surface, it’s a simple thing that involves one person giving away some of their personal funds, while the other person gets full control of the house. The tricky part is determining the value of the house. Some people may want to get half of the full market value of the house. Others may be fine just getting half of the original cost of the house or half of what they both paid into the house over the years. When negotiating this, it may be necessary for the seller to decide whether their goal is maximum profit or just recouping a little costs and escaping the responsibilities of home ownership.

Continuing to Co-Own the House

Sometimes, either partner selling their share just doesn’t work. Often, people want to wait to sell until market conditions improve or until their kids move out of the home. Keeping your finances entangled can be a little tricky. It’s a good idea to get help from a divorce mediation practitioner who can assist you with navigating all the emotions and financial disagreements involved in co-owning a house after divorce. You will need to be able to handle things like splitting the cost of repairs and agreeing on who gets to spend time in the house. Keep in mind that you will each technically be responsible for the full cost of the mortgage, so it can make it hard to get credit for things like car purchases.

Selling the House and Splitting the Profits

Selling the house, subtracting all costs, and then dividing the profits into two equal shares is a fairly simple way of dealing with the conflict. Though actually preparing the house and selling it takes time, this agreement reduces arguments and gives each person money to start their new life. This is actually the solution the courts usually recommend if the two spouses cannot agree on who gets the house. However, going through the court takes extra time, and then you would have a rushed sale that might not net the highest cost. Therefore, agreeing to this solution can give you a little more time to find a favorable sale.

As you can see, there are a lot of creative solutions to the question of who gets the house. Having a divorce lawyer who can help you negotiate a clear and satisfying agreement can take a lot of the stress out of dividing assets in a divorce. The Law Office of Joanne Kleiner is here to assist people living in Montgomery, Bucks, and Philadelphia counties with their divorces. Call 215-886-1266 or fill out our contact form to learn more about how we might be able to help you.

Jun 18

Can You Get Some of Your Ex’s Pension During a Divorce?

Am I Entitled to My Ex-spouse’s Pension?

Roughly 56% of Americans include a pension or other retirement savings plan as part of their financial assets. Dividing up these sorts of assets in a divorce can be tricky. Whether or not you get part of your ex’s pension will depend on a few factors.

Pensions Are a Joint Asset

Even if your spouse was the only one contributing to the pension, part of it might be your property. Your divorce lawyer can argue for you getting a share of the pension because it’s a joint asset. Over the course of the marriage, you and your spouse’s contributions both went into things like producing children, obtaining a career, and getting home goods. Therefore, any funds that you or your partner got during the marriage are called joint marital property. In a divorce, these joint assets are split up. Depending on the way that you either choose to divide assets or a court issues an order, you can get some of a pension.

You Might Not Get Half of the Pension

Pensions are treated just like any other asset division in Pennsylvania. This means that they are split based on what is equitable and fair. Keep in mind that this doesn’t necessarily mean you automatically get half. Instead, the judge will split any pensions based on factors such as:

  • Whether you contributed to the home non-financially, such as helping with child care or cooking
  • How long you have been married
  • How much money you and your spouse each have
  • Your age, health, and ability to work at a job
  • Whether you’ll be a custodial parent or not
  • Your contributions to the pension or other marital property

Additionally, you might have the option of choosing to forgo your share of the pension in exchange for something else. For example, if you want to keep a car, you and your divorce attorney might offer to relinquish your right to the pension and get the vehicle instead.

Reasons That You Might Not Be Entitled to Some of the Pension

In most cases, a pension is part of joint marital property that needs to be considered during asset division. However, there are a few factors that can keep a pension from being a joint asset. In these cases, the answer to who gets the pension in a divorce will be your ex. You won’t be able to ask for part of it or use it while negotiating for certain property.

The most common reason that you won’t get part of the pension is just that your partner earned it before you were married. When your spouse brings a pension into your marriage, it is their personal property that they get to take when they leave. If they started the pension before your marriage but kept contributing after, you’re only entitled to the portion of the pension accrued after your marriage.

Another reason you might not be entitled to a pension is if you signed a prenuptial agreement. Though judges can throw out prenups for certain reasons, this doesn’t happen often. Typically, if you agreed you wouldn’t take any of your ex’s pension, you can’t. A final reason that you might not get their pension is the type of the account. Some pensions, such as those through the military, may follow a separate set of rules. These can potentially bar the pension owner from splitting the account with an ex. If the owner cannot transfer the pension to anyone else, you might not get any money from it.

Ultimately, most couples who divorce will end up splitting pensions or substituting other assets. However, this sort of asset division can be tricky, so it’s a good idea to discuss your unique situation with a divorce lawyer. At the Law Office of Joanne Kleiner, we take pride in helping people achieve satisfactory divorce outcomes. Our team provides the representation you need during this challenging transition. Call 215-886-1266 or fill out our contact form to schedule a consultation today at our Jenkintown office.

Apr 21

You May Claim Social Security Benefits Based on an Ex’s Work Record

Can I Receive Benefits From My Ex’s Work Record?

You can qualify for Social Security benefits based on your most recent ex-spouse’s work record if you meet a few specific qualifying criteria, and the Social Security Administration will only grant you payments on your ex’s earnings record if he or she qualifies for monthly benefits. Whether or not your former spouse is actively receiving benefits has no bearing on your qualifying for benefits under their record.

Eligibility Requirements

To be eligible to receive payouts under your ex-spouse’s income record, the marriage would have had to have lasted for at least 10 years. You would have been divorced for at least two years and had not remarried. Your ex-spouse would need to be a qualifying candidate that can receive Social Security retirement income or disability benefits. To be eligible for the benefits under your divorced spouse’s earned income, you must be at least 62 years of age.

How Are the Benefits Calculated?

The SSA calculates the higher of the two payments, either yours or your former spouse’s. It will issue checks to you based on one calculation, which means you will be getting the rate that pays you the most benefits. You will not be entitled to receive a double payment.

The most that you will be entitled to receive through your former spouse’s earnings record is 50 percent of what he or she would be entitled to at full retirement age, which is currently 67 years old. If the amount that you would receive based on your own record would be greater than that, then your payments would be based on your personal earnings history, and that of your former spouse’s would be ignored for this purpose. You can get the maximum amount available to you if you file for Social Security benefits when you reach full retirement age. It is important to bear in mind that if you end up getting paid based upon your former spouse’s earnings history, the amount that they are entitled to receive will not be affected in any fashion whatsoever.

If you claim earlier, the benefit amount gets reduced. The payouts can increase by 8 percent every year between age 67 and 70 years if you wait until age 70 to collect benefits. If you delay filing your Social Security payouts past age 70, however, your benefits will not increase further.

What Happens if You or Your Former Spouse Remarries?

If your ex-spouse remarries, your eligibility status for receiving benefits under their record is unaffected. However, if you remarry, you no longer qualify for payments based on your ex’s record.

Filing the Claim

Before you file an application to receive benefits that are based on your former spouse’s income record, contact your local Social Security office to determine if you meet the eligibility requirements and to learn how much of a monthly payment it is estimated that you will receive. You will have to provide certain personal information, including your U.S. passport or another form of legal identification, as well as your divorced spouse’s identifying information. This can include your former spouse’s Social Security number, name, and any other information you may still have access to, such as a marriage certificate and a divorce decree. If you cannot locate those latter documents, you will need to provide the approximate dates of those events.

You can consult a divorce lawyer to ensure your documents are in order. The Social Security Administration will use this information to look up your former spouse’s work history.

The earliest you can file your Social Security claim is three months before you turn age 62. You can file an online application through the Social Security Administration website or by calling the SSA toll-free If you need an in-person interview with a Social Security representative, you should make an appointment with your local SSA office.

If you are confused by the process of claiming benefits from your former spouse, having the help of a divorce lawyer can be important. Contact the Law Office of Joanne Kleiner at (215) 866-1266 to learn more about the specifics of your case.

Apr 13

Divorce and Retirement Assets—Protecting Your Rights

Divorce and Retirement Assets—Protecting Your RightsAre you considering filing for divorce or already a party to a divorce proceeding, where the marital estate includes a substantial amount of retirement savings? For many persons involved in divorce proceedings, particularly later in life, retirement assets are one of the largest components of the marital estate, often exceeding the value of the marital home. Frequently, too, they have been accumulated by only one of the parties. So what happens to those assets in a divorce?

As a general rule, all retirement assets accrued, contributions made or values accumulated during a marriage are part of the marital estate and divided according to law. In Pennsylvania, which applies equitable distribution principles to property settlements in divorce cases, the value of retirement funds must be divided equitably, or fairly (but not necessarily equally), between the parties. When determining what is fair, the court may consider a wide range of factors, including:

  • How long the parties were married
  • Whether either party was married before
  • The age and health of the parties
  • The standard of living to which the parties were accustomed

When dividing retirement assets, though, there can be some challenges related to the potential tax consequences. Because retirement contributions are often made in pre-tax dollars, you must be careful, when taking a distribution from an ex-spouse’s 401k or IRA, that you take the right steps to prevent that distribution from becoming taxable income until you want it to be such. Typically, the way that you do that is through a Qualified Domestic Relations Order (QDRO). A QDRO will allow you to rollover the distribution into your own qualified plan without tax penalty.

Contact the Law Office of Joanne E. Kleiner & Associates

For an appointment, contact our office online or call us at 215-886-1266. Let us use our experience, skill, knowledge and resources to help you make informed and effective decisions.