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retirement, loans, and debt

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kairilara

Junior Member
What is the name of your state (only U.S. law)? CA

My husband is petitioning for divorce. He has been planning to take out a loan against his retirement. My question: f he takes out a loan does that affect the 50% amount that I should recieve since CA is a community property state or since the loan is from himself and has scheduled payments from his paycheck, will the retirment amount remain same after the loan?

As for tax debt. We owe a TON of money to taxes (since he decided without telling me that he was going to claim 9 dependents on his paychecks when it is just the two of us...) does the debt owed to the IRS get split in two as well?

Thanks for you help!
Julie
 


LdiJ

Senior Member
What is the name of your state (only U.S. law)? CA

My husband is petitioning for divorce. He has been planning to take out a loan against his retirement. My question: f he takes out a loan does that affect the 50% amount that I should recieve since CA is a community property state or since the loan is from himself and has scheduled payments from his paycheck, will the retirment amount remain same after the loan?

As for tax debt. We owe a TON of money to taxes (since he decided without telling me that he was going to claim 9 dependents on his paychecks when it is just the two of us...) does the debt owed to the IRS get split in two as well?

Thanks for you help!
Julie
Yes, the tax debt also gets split in two. However, neither the IRS nor CA will go after you "evenly" for the balance due. They will grab the money from wherever they can get it, until its paid off.

You should absolutely argue strenously that the 401k balance prior to his loan, is what should be divided.
 

mistoffolees

Senior Member
What is the name of your state (only U.S. law)? CA

My husband is petitioning for divorce. He has been planning to take out a loan against his retirement. My question: f he takes out a loan does that affect the 50% amount that I should recieve since CA is a community property state or since the loan is from himself and has scheduled payments from his paycheck, will the retirment amount remain same after the loan?

As for tax debt. We owe a TON of money to taxes (since he decided without telling me that he was going to claim 9 dependents on his paychecks when it is just the two of us...) does the debt owed to the IRS get split in two as well?

Thanks for you help!
Julie
What are the amounts? Is he going to borrow the full amount of his retirement balance? if so, he may be in contempt of court if he's already filed for divorce since you can not encumber marital assets while the divorce is pending without court permission.

OTOH, if he borrows less than 50% of the retirement amount after filing for divorce, it won't affect you. You'll get your 50% unencumbered.

If he borrows the money before filing for divorce, you're probably going to get half of the assets plus half the debt plus half of whatever he does with the money.

In most cases, you're going to be responsible for half of the tax debt since you benefited from his deception (you benefited from the greater take home pay as much as he did). You could argue that you are an innocent spouse, but I'm not sure it's going to fly.
 

kairilara

Junior Member
Did you file seperately, or sign the return?

Is the loan going toward marital debt?
we filied jointly and both of us signed the return. I agree that I am just as responsible for the tax debt since i used the money too... I just wanted to make sure that we would both be responsible for it. If the IRS does take more from me can I file any kind of paperwork that requires him to pay me for his fair share?

the loan is not going to any marital debt, I think he is taking out 40% of hie retirement. I really just didn't know if this affected the balance of his retirement account. I told him that if he was taking out a loan that had an affect on the balance then he needed to split the loan 50% with me since i would be 50% responsible for the loan and if it didn't affect the balance then he wouldn't need to split the loan and I would be fine since the payments would be taken directly from his paycheck...

Also- Since my STBXH makes more than I do I know I could ask for alimony. Would it be wiser to trade debt for alimony payments (i.e., trade one bill of $600 for alimony payments equalling $600) or does that just leave me open to him not paying his debts (that is his history) as well as losing alimony?

Thanks for all your help!
 
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mistoffolees

Senior Member
we filied jointly and both of us signed the return. I agree that I am just as responsible for the tax debt since i used the money too... I just wanted to make sure that we would both be responsible for it. If the IRS does take more from me can I file any kind of paperwork that requires him to pay me for his fair share?

the loan is not going to any marital debt, I think he is taking out 40% of hie retirement. I really just didn't know if this affected the balance of his retirement account. I told him that if he was taking out a loan that had an affect on the balance then he needed to split the loan 50% with me since i would be 50% responsible for the loan and if it didn't affect the balance then he wouldn't need to split the loan and I would be fine since the payments would be taken directly from his paycheck...

Also- Since my STBXH makes more than I do I know I could ask for alimony. Would it be wiser to trade debt for alimony payments (i.e., trade one bill of $600 for alimony payments equalling $600) or does that just leave me open to him not paying his debts (that is his history) as well as losing alimony?

Thanks for all your help!
You didn't mention whether he had already filed for divorce or not. See my comments above.

In the event that he filed for divorce before he took out the loan, I would not take half of the loan proceeds and half of the debt. I would insist on 50% of the pre-loan retirement amount (adjusted for investment gains or losses) and he takes the half that has the loan on it as well as remaining responsible for the loan.

You didn't mention how long you were married and what the difference between your incomes is. That is what will be needed to determine alimony. You can always negotiate a lump sum in lieu of alimony if you wish. You'll want to make sure that you have a good accountant who can properly calculate the amount the lump sum needs to be to equalize the monthly payments. He doesn't have to agree to that, of course, unless you can get the court to order it.

If he fails to pay court ordered alimony, you file for contempt.
 

nextwife

Senior Member
You didn't mention whether he had already filed for divorce or not. See my comments above.

In the event that he filed for divorce before he took out the loan, I would not take half of the loan proceeds and half of the debt. I would insist on 50% of the pre-loan retirement amount (adjusted for investment gains or losses) and he takes the half that has the loan on it as well as remaining responsible for the loan.

You didn't mention how long you were married and what the difference between your incomes is. That is what will be needed to determine alimony. You can always negotiate a lump sum in lieu of alimony if you wish. You'll want to make sure that you have a good accountant who can properly calculate the amount the lump sum needs to be to equalize the monthly payments. He doesn't have to agree to that, of course, unless you can get the court to order it.

If he fails to pay court ordered alimony, you file for contempt.
Length of marriage is also critically important.

For two reasons: one is that a very short term marriage usually would not result in alimony.

Secondly, because only the portion of the 401K that accrued DURING the marriage is marital. She's not ENTITLED to 50% of his 401K- rather, 50% of whatever accrued DURING the marriage. If 100% of his 401K was premarital, for example, could be that she'd be entitled to none of it.
 

Ohiogal

Queen Bee
we filied jointly and both of us signed the return. I agree that I am just as responsible for the tax debt since i used the money too... I just wanted to make sure that we would both be responsible for it. If the IRS does take more from me can I file any kind of paperwork that requires him to pay me for his fair share?

the loan is not going to any marital debt, I think he is taking out 40% of hie retirement. I really just didn't know if this affected the balance of his retirement account. I told him that if he was taking out a loan that had an affect on the balance then he needed to split the loan 50% with me since i would be 50% responsible for the loan and if it didn't affect the balance then he wouldn't need to split the loan and I would be fine since the payments would be taken directly from his paycheck...

Also- Since my STBXH makes more than I do I know I could ask for alimony. Would it be wiser to trade debt for alimony payments (i.e., trade one bill of $600 for alimony payments equalling $600) or does that just leave me open to him not paying his debts (that is his history) as well as losing alimony?

Thanks for all your help!
Why do you believe alimony is a guarantee? It is NOT an entitlement. How long have you been married? How much more does he earn? How much do you earn? There are many more factors involved.

As for the tax bill -- you signed a return in which he claimed 9 dependents and it was only the two of you. You do realize that you also committed fraud then -- you can't put that entirely on him. YOU are just as guilty.
 

mistoffolees

Senior Member
Secondly, because only the portion of the 401K that accrued DURING the marriage is marital. She's not ENTITLED to 50% of his 401K- rather, 50% of whatever accrued DURING the marriage. If 100% of his 401K was premarital, for example, could be that she'd be entitled to none of it.
Of course.
 

LdiJ

Senior Member
Why do you believe alimony is a guarantee? It is NOT an entitlement. How long have you been married? How much more does he earn? How much do you earn? There are many more factors involved.

As for the tax bill -- you signed a return in which he claimed 9 dependents and it was only the two of you. You do realize that you also committed fraud then -- you can't put that entirely on him. YOU are just as guilty.
You misunderstood that part OG. It was 9 exemptions on his withholding allowances that he claimed, therefore no (or very little) federal tax was withheld from his paycheck. That's why they have the big tax bill. That's not fraud, its just stupidity.

Her mistake was in agreeing to file a joint return with him.
 

Ohiogal

Queen Bee
You misunderstood that part OG. It was 9 exemptions on his withholding allowances that he claimed, therefore no (or very little) federal tax was withheld from his paycheck. That's why they have the big tax bill. That's not fraud, its just stupidity.

Her mistake was in agreeing to file a joint return with him.
Yep I did misunderstand that. Thanks for pointing it out and correcting it. I thought they claimed nine dependents on the tax return when there was just the two of them. Which would be fraud and prompted my answer. I appreciate the correction and agree -- she should NOT have filed a joint return with him.
 

mistoffolees

Senior Member
You misunderstood that part OG. It was 9 exemptions on his withholding allowances that he claimed, therefore no (or very little) federal tax was withheld from his paycheck. That's why they have the big tax bill. That's not fraud, its just stupidity.

Her mistake was in agreeing to file a joint return with him.
Just for the record, it's not always stupid to claim 9 exemptions when there are only 2 people. It depends on your other tax deductions. In my case, I claim 15 exemptions for withholding even though there are only 2 people on my return -- and I usually still get a decent refund. It's all a matter of income and deductions. I wouldn't want anyone to get the idea that it's always bad to claim more exemptions for withholding purposes than you would use for filing purposes.

I'm not sure it was so stupid to file the joint return, anyway. If he had filed separately, then his tax bill would have been higher - and in a divorce she might well be responsible for half of that anyway - if his was the primary or sole income source. The courts would decide that since she got the benefit of his income (including bringing too much money home each month) that she should pay half of the taxes, as well. At least by filing jointly she might reduce the total tax bill. (Of course, I don't know the specifics, so I can't say if that is true, but it could be). I would, however, have checked with an attorney before signing it.
 

LdiJ

Senior Member
Just for the record, it's not always stupid to claim 9 exemptions when there are only 2 people. It depends on your other tax deductions. In my case, I claim 15 exemptions for withholding even though there are only 2 people on my return -- and I usually still get a decent refund. It's all a matter of income and deductions. I wouldn't want anyone to get the idea that it's always bad to claim more exemptions for withholding purposes than you would use for filing purposes.

I'm not sure it was so stupid to file the joint return, anyway. If he had filed separately, then his tax bill would have been higher - and in a divorce she might well be responsible for half of that anyway - if his was the primary or sole income source. The courts would decide that since she got the benefit of his income (including bringing too much money home each month) that she should pay half of the taxes, as well. At least by filing jointly she might reduce the total tax bill. (Of course, I don't know the specifics, so I can't say if that is true, but it could be). I would, however, have checked with an attorney before signing it.
I would have check with a tax professional before signing it, not an attorney. Even if she would get stuck with half of the debt, it would ensure that she would get stuck with ONLY 1/2 of the debt. As a joint return filer however, she could end up being stuck with the entire debt, at least as far as the IRS is concerned. They don't divide it in half....they just grab it from wherever they can get it.

Also, for the average person, claiming more dependents than the number of people in your family, is not going to be wise. There would be very few cases where claiming 15 dependents,(or 9 in OP's case) when there are only two people in the family, would ever work out to the advantage of the taxpayer. In fact, I am not at all sure how its working for you, unless you have losses from somewhere that are offsetting your income from employment. In any case, it would take something fairly extraordinary.
 

mistoffolees

Senior Member
Also, for the average person, claiming more dependents than the number of people in your family, is not going to be wise. There would be very few cases where claiming 15 dependents,(or 9 in OP's case) when there are only two people in the family, would ever work out to the advantage of the taxpayer. In fact, I am not at all sure how its working for you, unless you have losses from somewhere that are offsetting your income from employment. In any case, it would take something fairly extraordinary.
It's actually not as uncommon as you might think. I only have moderate deductions (well under the reported averages for my tax bracket), but my income fluctuates, particularly with significant bonuses during the year. If someone has either high deductions or fluctuating income, it may make sense to increase the number of deductions - to avoid making an interest free loan to the IRS. You just want to be careful not to take TOO many and owing them a large chunk of money.

In any event, that's not what happened here - he simply did it to reduce withholding and is going to have to give it back. THAT is a bad idea. I was just objecting to the statement that it's always a stupid thing to do.
 

LdiJ

Senior Member
It's actually not as uncommon as you might think. I only have moderate deductions (well under the reported averages for my tax bracket), but my income fluctuates, particularly with significant bonuses during the year. If someone has either high deductions or fluctuating income, it may make sense to increase the number of deductions - to avoid making an interest free loan to the IRS. You just want to be careful not to take TOO many and owing them a large chunk of money.

In any event, that's not what happened here - he simply did it to reduce withholding and is going to have to give it back. THAT is a bad idea. I was just objecting to the statement that it's always a stupid thing to do.
Hint: I am a tax professional...been at it for more than 20 years. Yes, if someone's income seriously fluctates, particularly spiking at bonus time, then yes, it can make sense to adjust your withholding exemptions. I myself do that because I make the majority of my yearly income during the first 4 months of the year. However, unless you can reasonably predict your income for the year, its wise to make those changes temporary, just to handle the spiking periods. As of May first each year, I know exactly what my income will be for the entire year. Therefore its easy for me to adjust for the balance of the year at that time.

However, the vast majority of people who claim significantly more exemptions than they have people in their family, are not doing it because of income fluctations. They are doing it because they are stupid....LOL. They are doing it because someone told them that they can do that and not have any money taken out of their check for federal withholding. They don't grasp what that means when they file their tax returns.

A large majority of them make it even worse. They see the sticker shock when they prepare their returns, and then don't file at all. Then when they finally decide to go to a tax professional for help, and finally have it explained to them that their withholding is the problem, its often too late to correct it for the current year, so they have the same problem again.

I dealt with just such a client today. She is working two jobs and the second job brings in half again as much as the first job, but of course the employer is not withholding enough because the employer is doing it based on her W4 saying single and 1. She did her taxes on Turbo Tax, discovered that she owed a ton, and just buried her head in the sand until today. Unfortunately she had the same problem for 2006. Now, the IRS is not going to give her too much grief about adding 2007's balance to her installment agreement, but they WILL give her serious grief if it happens a third time, so now she not only has to pay the installment agreement, which eats into her income, but she also has to have enough extra withheld from her pay for the final last 5 months of the year, to ensure that she doesn't have the same problem for 2008, so she is going to be seriously hurting.

I have lots of high income clients, and lots of low income clients, and no more than a handful of the 700+ clients I handle a year, actually have a valid reason to mess with their exemptions.

Therefore your advice was dangerous....because when you gave your advice you didn't explain the circumstances surrounding it....and didn't explain as to how few people that applied.

The internet and software are wonderful things where taxes are concerned, but they are also bad things because they have dumbed down the general populations as to how taxes work. When people used to have to read the instructions in order to do their own taxes, people in general had a better handle on how taxes generally worked. They may not have known the nitty gritty, but they at least grasped the basics.
 
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