How Do Social Security Survivor Benefits Work?

Social Security payments can sometimes be a significant portion of a couple’s retirement income.  If your spouse passes away unexpectedly, it can have a dramatic impact on your financial wellbeing in retirement.  This is especially true if there was a big income difference between you and your spouse.   In this article we will review: 

• Who is eligible to receive the Social Security Survivor Benefit

• How the benefit is calculated

• Electing to take the benefit early vs. delaying the benefit

• Filing strategies that allow the surviving spouse to receive more from Social Security

• Social Security Earned Income Penalty

• Social Security filing strategies that married couples should consider to preserve the Survivor Benefit

• Divorce: 2 Ex-spouses & 1 Current Spouse: All receiving the same Survivor Benefit

How Much Social Security Does A Surviving Spouse Receive?

When your spouse passes away, as the surviving spouse, you are entitled to receive the higher of the two benefits. You do not continue to collect both benefits simultaneously.

Example: Jim is age 80 and he is collecting a Social Security benefit of $2,500 per month.  His wife Sarah is 79 and is collecting $2,000 per month for her Social Security benefit.

If Jim passes away first, Sarah would begin to receive $2,500 per month, but her $2,000 per month benefit would end.

If Sarah passes away first, Jim would continue to receive his $2,500 per month because his benefit was the higher of the two, and Sarah’s Social Security payments would end.

Married For 9 Month

To be eligible for the Social Security Survivor Benefit as the spouse, you have to have been married for at least nine months prior to your spouse passing away.  If the marriage was shorter than that, you are not entitled to the Social Security Survivor Benefit. 

Increasing Your Spouse’s Survivor Benefit

Due to this higher of the two rule, as financial planners we work this into the Social Security filing strategy for our clients.  Before we get into the strategy, let’s do a quick review of your filing options and how it impacts your Social Security benefit. 

Normal Retirement Age

Each of us has a Normal Retirement Age for Social Security which is based on our date of birth.  The Normal Retirement Age is the age that you are entitled to your full Social Security benefit: 

Should You Turn On The Benefit Early?

For your own personal Social Security benefit, once you reach age 62, you have the option to turn on your Social Security benefit early.  However, if you elect to turn on your Social Security benefit prior to Normal Retirement Age, your monthly benefit is permanently reduced by approximately 6% per year for each year you take it early. So, if your normal retirement age is 67 and you file for Social Security at age 62, you only receive 70% of your full benefit and that is a permanent reduction.

On the flip side, if you delay filing for Social Security past your normal retirement age, your Social Security benefit increases by about 8% per year until you reach age 70.

There is no benefit to delaying Social Security past age 70.

How This Factors Into The Survivor Benefit

The decision of when you turn on your Social Security benefit will ultimately impact the Social Security Survivor Benefit that is available to your spouse should you pass away first.   Remember, it’s the higher of the two.  When there is a large gap between the amount that you and your spouse will receive from Social Security, it’s not uncommon for us to recommend that the higher income earner should delay filing for Social Security as long as possible.  By delaying the start date, it increases the monthly amount that higher income earning spouse receives, which in turn preserves a higher monthly survivor benefit regardless of which spouse passes away first. 

Example:  Matt and Sarah are married, they are both 62, they retired last year, and they are trying to decide if they should turn on their Social Security benefit now, waiting until Normal Retirement Age, or delay it until age 70.  Matt’s Social Security benefit at age 67 would be $2,700 per month.  Sarah Social Security benefit at age 67 would be $2,000 per month. 

They need $7,000 per month to meet their expenses.  If Matt and Sarah both took their Social Security benefits at age 62, Matt’s benefit would be reduced to $1,890 per month and Sarah’s benefit would be reduced to $1,400 per month.  At age 75, Matt passes away from a heart attack. Sarah’s Social Security benefit would increase to the amount that Matt was receiving, $1,890, and Sarah’s benefit of $1,400 per month would end.  Since Sarah’s monthly expenses are still close to $7,000 per month, with the loss of the second Social Security benefit, she would have to withdraw $5,110 per month from another source to meet the $7,000 in monthly expenses. That’s $61,320 per year!!

Let’s compare that scenario to Matt waiting to file for his Social Security benefit until age 70 and Sarah turning on her Social Security benefit at age 62.  By turning on Sarah’s benefit at age 62, it provides them with some additional income to meet expense, but when Matt turns 70, he will now receive $3,348 per month from Social Security. If Matt passes away at age 75, Sarah now receives Matt’s $3,348 per month from Social Security and her lower benefit ends.   However, since the Social Security payments are higher than the previous example, now Sarah only needs to withdraw $3,652 per month from her personal savings to meet her expenses. That equals $43,824 per year.

If Sarah lives to age 90, by Matt making the decision to delay his Social Security Benefit to age 70, that saved Sarah an additional $262,400 that she otherwise would have had to withdraw from her personal savings over that 15 year period. 

Age 60 - Surviving Spouse Benefit

As mentioned above, with your personal Social Security retirement benefits, you have the option to turn on your Social Security payments as early as age 62 at a reduced amount.  In contrast, if your spouse predeceases you, you are allowed to turn on the Social Security Survivor Benefit as early as age 60.

Similar to turning on your personal Social Security benefit at age 62, if you elect to receive the Social Security Survivor Benefit prior to reaching your normal retirement age, Social Security reduces the benefit by approximately 6% per year, for each year that you start receiving the benefit prior to your normal retirement age.

Advance Filing Strategy

There is an advanced filing strategy associated with the Survivor Benefit.   Social Security allows you to turn on the Survivor Benefit which is based on your spouse’s earnings history and defer your personal benefit until a future date.  This allows your benefit to continue to grow even though you are currently receiving payments from Social Security.  When you turn age 70, you can switch over to your own benefit which is at its maximum dollar threshold.  But you would only do this, if your benefit was higher than the survivor benefit.

Example:  Mike and Lisa are married and are both entitled to receive $2,000 per month from Social Security at age 67.  Mike passes away unexpectedly at age 50.  When Lisa turns 60, she will have to option to turn on the Social Security Survivor Benefit based on Mike’s earnings history at a reduced amount of $1,160 per month.  In the meantime, Lisa can allow her personal Social Security benefit to continue to grow, and at age 70, Sarah can switch from the Surviving Spouse Benefit of $1,160 over to her personal benefit of $2,480 per month.

Beware of the Social Security Earned Income Penalty

If you are considering turning on your Social Security benefits prior to your normal retirement age, you must be aware of the Social Security earned income penalty.  This is true for both your own personal Social Security benefits and the benefits you may receive as the surviving spouse. In 2020, if you are receiving Social Security benefits prior to your normal retirement age and you have earned income over $18,240 for that calendar year, not only are you receiving the benefit at a permanently reduced amount but Social Security assesses a penalty at the end of the year which is equal to $1 for every $2 of income over that threshold.

Example:  Jackie decides to turn on her Social Security Survivor Benefits at age 60 in the amount of $1,000 per month. She is still working and will receive $40,000 in W-2 income. Based on the formula, of the $12,000 in Social Security payments that Jackie received, Social Security would assess a $10,880 penalty against that amount. So she basically loses it all to the penalty.

For clarification purposes, when Social Security levies the earned income penalty, they do not require you to issue them a check for the dollar amount of the penalty; instead, they deduct the amount that is due to them from your future Social Security payments.  This usually happens shortly after you file your tax return for the previous year because the IRS uses your tax return to determine if the earned income penalty applies.

For this reason, there is a general rule of thumb that if you have not reached your normal retirement age for Social Security and you anticipate receiving income during the year well above the $18,240 threshold, it typically does not make sense to turn on the Social Security benefits early. It just ends up creating more taxable income for you, and you end up losing most or all of the money the next year when Social Security assesses the earned income penalty against your future benefits.

Once you reach normal retirement age, this earned income penalty no longer applies. You can turn on Social Security benefits and make as much as you want without a penalty.

Divorce

We find that many ex-spouses are not aware that they are also entitled to the Social Security Survivor Benefit if they were married to the decedent for more than 10 years prior to the divorce. Meaning if your ex-spouse passes away and you were married more than 10 years, if the monthly benefit that they were receiving from Social Security is higher than yours, you go back to Social Security, file under the Survivor Benefit, and your benefit will increase to their amount.

The only way you lose this option is if you remarry prior to age 60. However, if you get remarried after age 60, it does not jeopardize your ability to claim the Survivor Benefit based on your ex-spouse’s earnings history.

If your ex-spouse was remarried at the time they passed away, you are still entitled to receive the Survivor Benefit. In addition, their current spouse will also be able to claim the Survivor Benefit simultaneously and it does not reduced the amount that you receive as the ex-spouse.

There was even a case where an individual was divorced twice, both marriages lasted more than 10 years, and he was remarried at the time he passed away.  After his passing, the two ex-spouses and the current spouse were all eligible to receive the full Social Security Survivor Benefit based on his earnings history. 

About Michael……...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

After A Divorce, Who Gets To File As Head of Household For Their Taxes?

There are often issues with money and taxes when a couple separates, or even when an ex-divorcee gets married again but this is one of most common tax questions that we receive when a married couple with children are in the process of getting divorced.

With regards to divorces and taxes though, there are five different tax filing types:

Single

Married Filing Joint

Married Filing Separately

Head of Household

Qualifying widow(er) with dependent child

There are a number of advantages for the spouse that is able to use the Head of Household (“HOH”) filing status after the divorce is finalized. They include:

• Lower tax brackets

• A higher standard deduction

• The possibility of qualifying for more tax credits and deductions

Joint Custody

When parents are awarded joint custody, you would think that there is some flexibility as to who is allowed to file as HOH or at a minimum that the spouses can alternate who files as HOH each year. In a divorce, even with a joint custody arrangement, there is typically one custodial parent. The custodial parent is the parent that the children spend the greatest number of days during the year.In simple terms, it literally comes down to counting the number of days during the calendar year that the children spends with each parent. The parent that spends the most days with the children during the year is the custodial parent and has the right to file as Head of Household, to claim the children as a dependent, claim the child tax credits, and the dependent child care credit.

Form 8332

At any time after the divorce, the custodial parent has the ability to file Form 8332 with their tax return which allows the noncustodial parent to claim one or any number of the children as a dependent on their own tax return. However, even if the custodial party files Form 8332 with their return allowing their ex-spouse to claim one or more of the children as dependents for that tax year, they still retain the right to file under the Head of Household filing status. The Head of Household filing status cannot be transferred to the noncustodial parent via Form 8332.

Both Parents Claim HOH

There are a few rare cases where it could be possible for both parents to file as Head of Household in the same tax year. For example, if there are two children, one child spends 51% of the year with one parent, and the second child spends 51% of the year with the other parent, both parents may be able to file as Head of Household in the same tax year. If you feel like you and your ex-spouse qualify for this exception, you will need to keep very careful records of where the children spend their days and nights throughout the year.

You should keep a “child custody log” because there is a good chance that both parents filing as HOH post-divorce will trigger an audit by the IRS. But there is nothing guaranteeing that a child custody log by itself will satisfy the IRS in the event of an audit. The IRS could request additional information to determine that the 51% time requirement was met by each parent.

About Michael.........

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

Divorce: The Difference Between Mediation, Collaborative, and Litigation

While making the decision to get a divorce can be difficult, it's equally important to decide which path for the divorce process is the right one for you and your current spouse.  There are three options:

• Mediation

• Collaborative

• Litigation

It important to understand the interworking's of each option before making a decision. For example, "trying" mediation in an attempt to save money could land you directly in a litigation battle without the opportunity to give the collaborative process a shot which may have been the right choice in the first place.

Mediation

In working with our clients, we have seen mediation work for some couples and not for others. For couples that can make mediation work, it is usually the preferred method because it provides a couple with the more control over the timeline of the divorce process, more choices, and it’s usually the least costly of the three options.

Litigation is where each side “lawyers up” and you do battle in court. We have seen litigations that go on for years costing tens of thousands of dollars in legal fees on both sides. What many people don’t realize is only about 5% of all divorce cases end in a judge’s ruling. Instead, approximately 95% of the divorce cases end in a settlement between the two soon to be ex-spouses. So the obvious question is “why should a couple use their martial assets to pay large attorney fees if they can just reach an agreement themselves?”

In conjunction with the mediation process, a couple meets with a mediator with the goal of working out their own agreement with regard to distribution of property / assets / liabilities, retirement assets, taxes, child custody, child support, and spousal maintenance. The mediator serves as a non-bias guide as you work towards an agreement.

You can ask questions like:

“How is child support calculated?”

“What items do we need to consider for the child custody agreement?”

“How do we assign a value to our business?”

“What is the tax impact of splitting the retirement accounts?”

Overcoming Tough Issues

You may find that you are able to reach an amicable agreement on a majority of the items that will be included in your agreement but what happens in the mediation process for the handful of items that you do not agree upon? It's the job of the mediator to help you to work through those tough issues. It may involve the mediator suggesting possible solutions or asking additional questions to obtain more information about the issue. By keeping the lines of communication open and asking additional questions, it can lead to elegant solutions that were not initially identified as an option.

Ground Rules

While it's important to keep the lines of communication open during the mediation process it may be a wise to agree on a set of ground rules for the mediation process. One of those rules may be that you cannot talk about the divorce outside of the formal mediation sessions. Sometime this is where mediation falls apart. Everything seems to be going great but you are working on one or two of those tough issues that's preventing the final settlement agreement, you go home, get into a heated argument without the presence of the mediator to help reign the emotions back in, and the next thing you know the mediation process is dead because the spouses are no longer speaking to each other. Ground rules are an important part of the process.

Control Over The Timeline

One of the big advantages of the mediation process is it gives you a high degree of control over how long the divorce process takes from start to finish. You do not have to wait for replies from the other side's attorney or court dates. The mediation process moves as fast or as slow as you would like it too. The mediation process is often completed in 3 to 10 meetings. According to www.mediate.com the average mediation case settles in 90 days.

Making The Mediation Process Work

Having seen clients go through this process, there are a few key items that need to exist for the mediation process to really work.

• The couple must be able to communicate effectively

• Both spouses need to feel like they can represent their own interests

• Both spouses need to feel comfortable making financial decisions

• There is general sense of trust and a willingness to compromise

Communication

If for whatever reason you can't stand the sight of your soon to be ex-spouse, most likely mediation is not going to work. Both spouses need to be able to openly communicate with each other to reach an agreement.

Represent Personal Interests

If one of the spouses feels like that they cannot adequately represent their interests or feel intimidated about speaking openly about what's important to them, the mediation process is probably not the right option. There are a lot of very important decisions being made in a relatively short period of time. It's important for each spouse to be confident that they fully understand the terminology being discussed, the decisions that are being made, and the long term impact of those decisions once the divorce is finalized.

The Non-Financial Spouse

Since one of the important items included in the divorce agreement is the separation of marital assets, if you or your spouse is intimidated by financial terms or finances in general, it can jeopardize the mediation process. However, if this is the case, it's important for the non-financial spouse to establish a trusted relationship with a financial planner that will help them to understand the short and long term impact of the financial decisions that they are making in conjunction with the mediation process. Items like establishing a budget, determining whether or not they can afford to stay in the marital house, retirement projection, paying down debt, the tax impact of child support, alimony payment, and other material items that will impact their overall financial plan post divorce. For the non-financial spouse, if this relationship is not established during the mediation process, it can lead to the downfall in the mediation process because the non-financial spouse may feel like they don't even know the right financial questions to be asking during the mediation process.

Trust & Compromise

Negotiating in good faith and a willingness to compromise are key to making the mediation process work. As soon as one spouse thinks the other spouse is hiding something, it’s game over for the mediation process. It triggers that natural response, if he or she is hiding one thing, what else are they hiding?

Reaching an agreement requires comprise especially on the difficult issues. If either spouse going into the mediation process is unwilling to give up any ground, it will make the mediation process difficult if not impossible. Married couples pursing a divorce have to remember that same amount of income and assets that were previously supporting a single household are now being used to support two separate households. It typically costs more to support two households instead of one. Two mortgages, two sets of clothes for the kids, two cable bills, etc. Both sides typically have to adjust their standard of living after the divorce is finalized.

Collaborative Divorce

If mediation is not a good fit for you, instead of just defaulting to the litigation option, an option that is growing rapidly in popularity is Collaborative Divorce.

Unlike mediation where it’s just you, your spouse, and a mediator, in the collaborative setting each spouse retains their own attorney to represent them at the table.

The goal of the attorneys in the collaborative setting is the same as the mediator, to reach an amicable agreement between you and your spouse. In fact, the attorneys will typically sign an agreement that if the collaborative process fails and you are unable to reach an agreement, those same attorneys are excluded from representing you in a litigation case. In other words, no matter how much you like your attorney, you would have to find a different attorney if you end up in court. This is an important aspect of the collaborative process because everyone is driving toward a settlement agreement. In divorce cases, people worry that their spouse’s attorney will try to “stir the pot” and get their spouse worked up about certain issues. If the collaborate process fails, both attorneys are out of the picture.

More Support

Having your own attorney sitting next to you and negotiating on your behalf is what many people need to feel comfortable that nothing is being missed and the right decisions are being made on their behalf. If negotiations get too intense during a collaborative session you can take a break, regroup, and seek counsel from your attorney.

Who Is Involved?

In most collaborative divorce cases there are anywhere from 4 to 7 people sitting at the table:

• You

• Your Attorney

• Your Spouse

• Your Spouse's Attorney

• A Coach or Mediator

• Child Specialist

• Financial Specialist

The coach or mediators serves as a neutral. They coordinate the meetings, ask questions to help facilitate the negotiations, and help set and enforce the ground rules for the collaborative process. A child specialist can be involved in specific meetings to coordinate the child custody agreement or a financial specialist can be called in to assist in equitable distribution of the martial assets.

What Does It Cost?

Collaborate Divorce is not cheap. You have attorneys involved, a coach, and possibly specialists to help reach an agreement. However, the collaborative process provides you with more control compared to litigation. It provides you with more control over the duration of the divorce process and control over the terms of your agreement. Similar to mediation, the pace of the collaborative process is set by the parties involved. You do not have to wait for court dates. We have seen some collaborative cases reach an agreement faster than a mediation case because the attorneys were there to help push the process along.

It also provides you with more control over the terms of your agreement because you are not tied to “what the law says”. You can create solutions that work for you, work for your spouse, but are outside the boundaries of case law. Also you are not tied to decisions that are handed down by a judge that does not know you or your kids.

In many cases, collaborative ends up being less expensive than full litigation because the duration of the divorce process tends to be shorter since everyone is driving toward a settlement. But given the number of professionals involved in the process, it’s typically more expensive than mediation.

Litigation

Litigation is what most of us think of when we hear the word “divorce”. You go out and find the best attorney that is going to make your soon to be ex-spouse pay!!! Sometimes litigation is unavoidable. As mentioned earlier, if you can’t stand the sight of your ex-spouse sitting across the table from you, then most likely mediation and collaborative are not going to work.

Litigation is usually the most expensive route to go. Attorneys bill by the hour and when you have court dates, your attorney will usually begin their bill rates as soon as they leave the office. Also they have to spend time replying to motions from your spouse’s attorney, preparing for court, and calling experts to testify in court. All too often, an attorney can look at the assets and income of a couple that is getting divorced and they can ballpark the amount of the child support, alimony, and an approximate asset split based on past settlement agreement. The couple then proceeds to spend months and sometimes years in court arguing about this, that, and other thing just to end up in the same spot but with less assets because both sides had to pay their attorneys $20,000+ in legal fees. It’s for this reason that the collaborative divorce process is gaining traction.

About Michael.........

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

Tax Reform Could Lead To A Spike In The Divorce Rate In 2018

The Tax Cut & Jobs Act that was recently passed has already caused taxpayers to accelerate certain financial decisions as we transition from the current tax laws to the new tax laws over the course of the next two years.

Current Tax Law: Alimony Is Tax Deductible

Under the current tax law, alimony payments are taxable income to the ex-spouse receiving the payments and they are tax deductible to the ex-spouse making the payments. When alimony is awarded pursuant to a divorce, it’s typically because there was a disparity in the level of income between the two spouses during the marriage. The ex-spouse paying the alimony, in most cases, is the higher income earning spouse both before and after the divorce finalized.

Let’s look at this in a real life example. Jim and Sarah have decided to get a divorce. Jim makes $300,000 per year and Sarah is a homemaker with $0 income. Pursuant to the divorce agreement, Jim will be required to pay Sarah $50,000 per year for 5 years. Jim will be able to deduct the $50,000 each year against his taxable income and Sarah will claim the $50,000 as taxable income on her tax return. Based on the 2018 Individual Tax Brackets, the top end of Jim’s income is in the 35% tax bracket. Thus, paying $50,000 in alimony really results in an “after-tax” expense to Jim of $32,500.

$50,000 x 35% = $17,500 (fed tax savings)

$50,000 – $17,500 = $32,500 (after tax expense to Jim)

Sarah will claim that $50,000 in alimony payments as income and let’s assume that the alimony payments are her only income for the year. Next year, as a single filer, Sarah will receive a standard deduction of $12,000, and the remainder of the $38,000 will be taxed at a blend of her 10% & 12% tax rate. As a result, Sarah will only pay about $4,400 in taxes on the $50,000 in alimony income.

To sum it all up, if the $50,000 is taxed to Sarah, approximately $4,400 will be paid to the IRS in taxes and she nets $45,600 in after tax income. However, if Jim was not able to deduct the alimony payments and had to pay tax on that $50,000, he would first have to pay the $17,500 in taxes to the IRS, and then he would hand Sarah a check for $32,500 after tax. Sarah is worse off because she received less after tax income. Jim would ultimately be worse off because he would need to part with more pre-tax income to create the same after tax benefit for Sarah. The IRS is the only one that wins.

Gaming The System

Since divorce agreements, in most states, are not required to adhere to predefined calculations for splitting assets, alimony payments, and in some cases child support, the tax game can be played when there is a high income earning spouse and alimony payments in the mix. In exchange for fewer assets or less child support, some divorce agreements have purposefully shifted more to alimony. The ex-spouse with the big income gets a bigger tax deduction and the ex-spouse receiving the alimony payment is able to take full advantage of their lower tax brackets and maximize their after tax income.

Alimony Is No Longer Deductible

To stop the tax game, included in the new tax bill was a provision that specifically states that alimony payments will no longer be deductible by the payor, nor reportable as income by the recipient, for divorce agreements signed after December 31, 2018.

The good news is this will not impact the ability to deduct alimony payments for divorce agreements that are currently in place. The bad news is for divorce agreements signed after December 31, 2018, the high income earner will no longer be able to deduct the alimony payments. That eliminates the tax arbitrage that has been used in the past to make the pie larger for both spouses. In general, if you shrink the size of the asset and income pie, it leaves more to fight about because each spouse is trying to preserve their standard of living as much as possible post-divorce.

For couples that have been sitting on the fence about getting divorced, this could be the catalyst to start the process in 2018 to make sure they have a signed agreement prior to December 31, 2018.

About Michael.........

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

The Procedures For Splitting Retirement Accounts In A Divorce

If you are going through a divorce and you or your spouse have retirement accounts, the processes for splitting the retirement accounts will vary depending on what type of retirement accounts are involved.

401(k) & 403(b) Plan

The first category of retirement plans are called ?employer sponsored qualified plans?. This category includes 401(k) plans, 403(b) plans, 457 plans, and profit sharing plans. Once you and your spouse have agreed upon the split amount of the retirement plans, one of the attorneys will draft Domestic Relations Order, otherwise known as a QDRO. This document provides instruction to the plans TPA (third party administrator) as to how and when to split the retirement assets between the ex-spouses. Here is the procedures from start to finish:

• One attorney drafts the Domestic Relations Order (?DRO?)

• The attorney for the other spouse reviews and approved the DRO

• The spouse covered by the retirement plan submits it to the TPA for review

• The TPA will review the document and respond with changes that need to be made (if any)

• Attorneys submit the DRO to the judge for signing

• Once the judge has signed the DRO, its now considered a Qualified Domestic Relations Order (QDRO)

• The spouse covered by the retirement plan submits the QDRO to the plans TPA for processing

• The TPA splits the retirement account and will often issues distribution forms to the ex-spouse not covered by the plan detailing the distribution options

Step number four is very important. Before the DRO is submitting to the judge for signing, make sure that the TPA, that oversees the plan being split, has had a chance to review the document. Each plan is different and some plans require unique language to be included in the DRO before the retirement account can be split. If the attorneys skip this step, we have seen cases where they go through the entire process, pay the court fees to have the judge sign the QDRO, they submit the QDRO for processing with the TPA, and then the TPA firm rejects the QDRO because it is missing information. The process has to start all over again, wasting time and money.

Pension Plans

Like employer sponsored retirement plans, pension plans are split through the drafting of a Qualified Domestic Relations Order (QDRO). However, unlike 401(k) and 403(b) plans that usually provide the ex-spouse with distribution options as soon as the QDRO is processed, with pension plans the benefit is typically delayed until the spouse covered by the plan is eligible to begin receiving pension payments. A word of caution, pension plans are tricky. There are a lot more issues to address in a QDRO document compared to a 401(k) plan. 401(k) plans are easy. With a 401(k) plan you have a current balance that can be split immediately. Pension plan are a promise to pay a future benefit and a lot can happen between now and the age that the covered spouse begins to collect pension payments. Pension plans can terminate, be frozen, employers can go bankrupt, or the spouse covered by the retirement plan can continue to work past the retirement date.

I would like to specifically address the final option in the paragraph above. In pension plans, typically the ex-spouse is not entitled to a benefit until the spouse covered by the pension plan is eligible to receive benefits. While the pension plan may state that the employee can retire at 65 and start collecting their pension, that does not mean that they will with 100% certainty. We have seen cases where the ex-husband could have retired at age 65 and started collecting his pension benefit but just to prevent his ex-wife from collecting on his benefit decided to delay retirement which in turn delayed the pension payments to his ex-wife. The ex-wife had included those pension payments in her retirement planning but had to keep working because the ex-husband delayed the benefit. Attorneys will often put language in a QDRO that state that whether the employee retires or not, at a given age, the ex-spouse is entitled to turn on her portion of the pension benefit. The attorneys have to work closely with the TPA of the pension plan to make sure the language in the QDRO is exactly what it need to be to reserve that benefit for the ex-spouse.

IRA (Individual Retirement Accounts)

IRA? are usually the easiest of the three categories to split because they do not require a Qualified Domestic Relations Order to separate the accounts. However, each IRA provider may have different documentation requirements to split the IRA accounts. The account owner should reach out to their investment advisor or the custodian of their IRA accounts to determine what documents are needed to split the account. Sometimes it is as easy as a letter of instruction signed by the owner of the IRA detailing the amount of the split and a copy of the signed divorce agreement. While these accounts are easier to split, make sure the procedures set forth by the IRA custodians are followed otherwise it could result in adverse tax consequences and/or early withdrawal penalties.

About Michael??...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

Divorce: Make Sure You Address The College Savings Accounts

The most common types of college savings accounts are 529 accounts, UGMA, and UTMA accounts. When getting divorce it’s very important to understand who the actual owner is of these accounts and who has legal rights to access the money in those accounts.  Not addressing these accounts in the divorce agreement can lead to dire consequences for your children if your ex-spouse drains the college savings accounts for their own personal expenses. 

UGMA or UTMA Accounts

The owner of these types of accounts is the child. However, since a child is a minor there is a custodian assigned to the account, typically a parent, that oversees the assets until the child reaches age 21.  The custodian has control over when withdraws are made as long as it could be proven that the withdrawals being made a directly benefiting the child.   This can include school clothes, buying them a car at age 16, or buying them a computer. It’s important to understand that withdraws can be made for purposes other than paying for college which might be what the account was intended for.  You typically want to have your attorney include language in the divorce agreement that addresses what these account can and can not be used for.  Once the child reaches the age of majority, age 21, the custodian is removed, and the child has full control over the account.

529 accounts

When it comes to divorce, pay close attention to 529 accounts. Unlike a UGMA or UTMA accounts that are required to be used for the benefit of the child, a 529 account does not have this requirement. The owner of the account has complete control over the 529 account even though the child is listed as the beneficiary. We have seen instances where a couple gets divorced and they wrongly assume that the 529 account owned by one of the spouses has to be used for college.  As soon as the divorce is finalized, the ex-spouse that owns the account then drains the 529 account and uses the cash in the account to pay legal fees or other personal expenses.  If the divorce agreement did not speak to the use of the 529 account, there’s very little you can do since it’s technically considered an asset of the parent.

Divorce agreements can address these college saving accounts in a number of way.   For example, it could state that the full balance has to be used for college before out-of-pocket expenses are incurred by either parent. It could state a fixed dollar amount that has to be withdrawn out of the 529 account each year with any additional expenses being split between the parents.  There is no single correct way to address the withdraw strategies for these college savings accounts. It is really dependent on the financial circumstances of you and your ex spouse and the plan for paying for college for your children.

With 529 accounts there is also the additional issue of “what if the child decides not to go to college?” The divorce agreement should address what happens to that 529 account. Is the account balance move to a younger sibling?  Is the balance distributed to the child at a certain age?  Or will the assets be distributed 50-50 between the two parents?

Is for these reason that you should make sure that your divorce agreement includes specific language that applies to the use of the college savings account for your children

For more information on college savings account, click on the hyperlink below:

Link:  More Articles On College Savings Accounts

About Michael……...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

How Is Child Support & Alimony Calculated In New York?

child support and alimony calculation in New York

For purposes of child support, either parent can be named the custodial parent by a Court.  For the purposes of this article we will assume that the mother is the custodial parent and will be receiving the child support and alimony payments.  However, fathers who have custody can also use this as a guide.

How do I apply for child support?

Usually, you ask for child support in Family Court in the county where you and the child live.   You can also go for child support in the county where the father lives.  You are not required to have a lawyer to apply for child support but it is recommended that you consult with a divorce attorney prior to filing for support.

How is the dollar amount of child support calculated?

The Child Support Standard Act (CSSA) is the law in NYS and tells the amount of child support the father must pay.  The CSSA applies to parental income up to a maximum of $181,000 (2021 limit) and the Court can apply it to income in excess of $148,000 based on certain factors. Examples of these factors are: the financial ability of the father, the lifestyle the child would have enjoyed if the parents stayed living together, and any special needs the child may have. The maximum can be adjusted periodically by the New York State legislature. The amount you get depends on what the father’s income is, what your income is, how many children you have together, and what your children’s basic needs are

The Support Magistrate will look at the information in your financial disclosure affidavit and the father’s financial disclosure affidavit, if he supplies one. The Support Magistrate might also ask you and the father to answer questions. And you and he might be asked to give the Support Magistrate other evidence of your income and expenses, such as a paystub or a W-2 statement.

Both parents’ incomes are used to figure out how much child support the father has to pay because both parents have to support their children.

This is how it is calculated:

Deduct (subtract) these things from each parent’s income:

• spousal maintenance paid to a former husband or wife by court order

• child support paid to other children by court order

• public assistance and supplemental security income (SSI)

• city taxes

• social security and Medicare taxes (FICA)

Combine (add) the incomes of both parents after making those deductions, and multiply the total you get by the correct percentage:

• 17% for one child

• 25% for two children

• 29% for three children

• 31% for four children

• Not less than 35% for five children or more

Divide the figure you get between both parents according to both your incomes (on a “pro rata” basis). This means that if the father earns twice as much as you, he must pay twice as much child support.

The father may also have to pay additional amounts for:

• child care, if you are working or going to school.

• medical care not covered by insurance

• the child’s educational expenses

The parent who has health insurance must also (if reasonable) continue providing health insurance for your children. The cost of providing health insurance will be shared between yourself and the father, in proportion to your respective incomes. If neither of you has health insurance, the court will order the custodial parent (the parent with the greatest amount of custody) to apply for the state’s child health insurance plan.

When do child support payments stop?

Child support payments typically end when the child reaches age 21 or becomes emancipated.  Emancipation means a child is living separately and independently from a parent, or is self –supporting.   Some things that show that a child is emancipated are:

• Child has completed 4 years of college education

• Child has gotten married

• Child is living away from home (except for living at school or college)

• Child has gone into the military

• Child is 17 years old and working full-time (except for summer vacation jobs)

• Child willingly and fro no good reason has ended the relationship with both parents

alimony calc

In New York, alimony is referred to in three different ways: as alimony, spousal support, and maintenance.  “Temporary maintenance” is an order that one spouse must financially support the other while the divorce is being finalized.  Once the divorce is finalized, the temporary maintenance stops and the judge decides whether permanent alimony is appropriate.

How is the amount of alimony payments determined?

Unlike child support payments there really are no set guidelines for the amount and duration of alimony payments.   To decide whether spousal support is appropriate, the judge will look at the needs of the spouse asking for support and whether the other spouse has the financial ability to provide financial help. For example, if your income is lower than your spouse’s but you are able to support yourself, you may not be entitled to alimony. The court will also look at other factors when making a decision about support:

• the length of the marriage

• each spouse’s age and health status

• each spouse’s present and future earning capacity

• the need of one spouse to incur education or training expenses

• whether the spouse seeking maintenance is able to become self-supporting

• whether caring for children inhibited one spouse’s earning capacity

• equitable distribution of marital property, and

• the contributions that one spouse has made as a homemaker in order to help enhance the other spouse’s earning capacity.

The court will also look to see whether the acts of one spouse have inhibited or continue to inhibit the other spouse’s earning capacity or ability to obtain employment. The most common example of this would be domestic violence. If one spouse’s abuse of the other affected that abused spouse’s ability to maintain or to get a job, the court might consider those actions in making its order. Disclosure:  The information listed above is for educational purposes only.  Greenbush Financial Group, LLC does not provide legal advice.  For legal advice, please consult your attorney. 

Michael Ruger

About Michael……...

Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.

How To Prepare Financially For A Divorce

divorce financial planner

Divorce can stain finances as well as emotions. Both parties are trying to determine financially what life is going to look like after the divorce is finalized.  It is also more common than not that in a marriage one of the spouses assumes the role of paying the bills and managing the family's finances. In this arrangement the "non-financial spouse" is now forced very quickly into the role of understanding their total financial picture.

• How much income do they need to meet their living expenses?

• Where are all of the marital assets located?

• How much debt do they have?

• How much should they expect to receive or pay in child support / alimony?

• Who is responsible for paying the bills while the divorce process is ongoing?

Step 1: Establish a team of professionals........

Since so many important financial decisions are being made in such a short window of time, we strongly recommend that each spouse surround themselves with a team of professionals that they like and trust. That team of professionals usually consists of an attorney /mediator, accountant, therapist, and a financial planner. Even though the divorce process can be stressful and sometimes scary, surrounding yourself with a knowledgeable team of advisors will help you to better understand your current situation, the options available to you, and to help you better prepare for life after the divorce is final.

Step 2: Identify your assets and debts.............

You need to fully understand your current financial situation before you can begin to plan for your income and expenses going forward. First, make a list of all of your assets, their values, where they are located, and how they are owned (jointly or separately). This can usually be accomplished by gathering statements on all of your accounts.

You will also need a list of all of your debts, the name of each creditor, outstanding balances, monthly payments, interest rates, and how each debt is owned (jointly or separately). This information can typically be obtained by requesting a credit report for both you and your spouse.

Step 3: Create a new budget...............

Before you can figure out how much income/support you will need going forward you need to know what your estimated monthly expenses are going to be once the divorce is finalized. We recommend listing all of your monthly expenses and list separately large one-time expenses that are expected to be incurred in the future such as college expense for the kids or a down payment on a house. Once you know your estimated monthly expenses you can work with your financial professionals to determine how much income/support you will need each month to meet those expenses taking into account taxes, inflation, and an assumed rate of return on your assets. Please feel free to utilize our GFG Expense Planner which is located in the Resource section of our newsroom.

Step 4: Develop financial projections............

Remember, the financial decisions that you are making now during the divorce process will most likely have a dramatic impact on what your financial future will look like. Not all assets are treated equally. Some assets are taxable while others are not. Likewise, you may have access to certain assets now to meet current expense while others assets may not be available until retirement.

The goal of these financial projections is to determine what your financial future may look like next year, 3 years, 10 years, and 20 years from now given the financial decisions that are being made today. There are a lot of variables that need to be considered when creating these projections such as assumed rates of return on current assets, annual contribution amounts, taxes, social security, inflation, and debt. We strongly recommend that individuals work with financial planners that specialize in divorce planning to develop these projections.

Having formal income and expense projections in place will also allow you determine how changes to what is being offered during the negotiation process will impact your financial future.

Step 5: Crossing emotional and financial decisions

It is not uncommon for individuals to have an emotional attachment to a specific marital asset. The two most commons assets that we see that fall into this category are the primary residence and pensions.

We see many situations where one spouse has a strong emotional attachment to the house and they become completely focused on doing whatever it takes to "keep the house". But there are certain circumstances where from a financial standpoint that keeping the house is just not a viable financial option. Couples can underestimate the financial impact of divorce. While married, a couple's total income was being used to maintain a single household. Now that same level of income will need to be used to maintain two separate households which usually comes at a greater overall cost. If projections can be produced early on in the divorce process showing that keeping the current house is just not a viable option, it may remove that addition stress of fighting over an asset that cannot be financially maintain by either spouse.

Disclosure: The information listed above is for educational purposes only. Greenbush Financial Group, LLC does not provide legal advice. For legal advice, please consult your attorney.

Michael Ruger

About Michael.........

Hi, I'm Michael Ruger. I'm the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.