Spousal Support Issues

Gary Berger said:

What is the name of your state?What is the name of your state? Ohio

I filed for divorce from my wife of 30 yrs earlier this year after a 3 year separation. Her addictions to alcohol and compulsive gambling which led to a lot of financial debt and emotional stress led to the filing. I have only been working for 10 months after a layoff of more than 9 months. I explained to my attorney that my finances are very tight due to debt that resulted from my wife's gambling addiction. I've tried to pay off what I could but we lost our home of 15 years, my wife gambled away her 401K money that she received when she was terminated from her job (this represented our retirement money), and we now have federal and state tax debts that resulted from my wife receiving her 401K money and not reporting it to me the last year we filed a joint tax return.

My attorney explained that Ohio is a no-fault state and (as such) typically does not consider marital misconduct in their decision regarding spousal support.

When my wife petitioned the court for spousal support, she asked the court to award her $1,500 a month from 10 years but the court reduced the amount to $400 with a provision to review the support at our final trial. They also made the payments retroactive back to two months before the hearing. I appealed the decision arguing that my income does not permit me to pay $400 a month but yesterday I received notification that the courts had affirmed their original decision.

In arguing against the $400 award I included a complete disclosure of my finances which showed that I averaged $150 a month remaining after I pay my bills and living expenses. Following the advice of my attorney I have paid my wife's apartment rent ($345) for the past two months . . . which has been a tremendous struggle for me. But at least that way I can rest assured that her rent is being paid and she is not gambling or drinking away the money.

Here is my question . . . since one of the primary reasons I filed for divorce is to protect myself from any financial liability associated with any new debt that my wife occurs and any illegal activity that my wife engages in, can't her history of reckless financial behavior be presented and taken into consideration by the judge?

Also, how can the courts award a spousal support amount for more than what I can afford to pay? In addition to waiting for three years to see if my wife would commit to recovering from her addictions . . . I led efforts to get her help through treatment programs, counseling, GA, and rehab services for more than 8 years before filing for this divorce.

It seems unfair to base the amount of spousal support on things like the duration of the marriage and the disparity in the couple's incomes yet totally ignore any of the circumstances leading to the divorce.

Is there anything I can do?

Gary B.

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Gary Berger said:

Ohio . . .

Are you saying that since the "temporary" spousal support was awarded, appealed and affirmed . . . that there is no reason to argue against spousal support of that amount or higher at my final divorce hearing?

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Gary Berger said:

YOU WROTE:
No, I am not saying that...however you ARE stuck with the temporary order (and I thought you objected to that) and the odds are very strong that since it was awarded, appealed and affirmed that the judge will stick with that in the final hearing. You certainly can argue the point if the judge gives you the opportunity (the judge may not, the judge may feel that the issued is already decided due to the appeal and affirmation)....however after a 30 year marriage alimony is almost inevitable if there is a wide income disparity.

MY RESPONSE:
Yes . . . I did object to the temporary order and that is why I appealed the decision. However when the original decision was made, the magistrate indicated that she thought some of the monthly expenses that I presented during the hearing was overstated. In the 3 months netween the original decision and the appeal hearing . . . my monthly expenses showed that my original presentation was accurate. I was not invited to attend the appeal hearing . . . I sat in the courthouse lobby while my attorney, my wife's attorney and the judge met in the judges chambers. The affirmation that resulted was not accompanied with an explanation.

I understand that in most divorce cases involving a long marriage and a wide disparity in income spousal support is inevitable. However, I think my wife's history of compulsive gambling and alcohol abuse which resulted in our severe depressed financial state, our ruined credit and the difficulty she is now experiencing in finding a good paying job . . . demands consideration.

YOU WROTE:
One thing you need to remember is that alimony is tax deductable to you (above the line), and taxable income to her, so you actually do have a significant savings there that you may be overlooking. Adjusting your withholding may be appropriate.

MY RESPONSE:
In my case this is a moot point . . . because the last year that me and my wife were together . . . she lost her job of 25+ years as the result of her gambling. That was the final year we filed a joint tax return . . . before we separated. She receieved her 401K money from her employer towards the end of that year and concealed it from me. A couple of years later the IRS audited our return and discovered the issue. As a result the IRS notified me and my wife that we now owe more than $7,000 in back taxes, fines & interest. Since that notification I have contributed my year-end tax return which has amounted to more than $2,000. My wife has paid nothing towards this debt. I contacte the IRS and attempted to explain the situation and see if my contributions could be applied to my share of the tax debt. Their answer was NO . . . the debt is ours . . . both separately and/or collectively . . . they don't care how it is paid as long as it is paid.

So you see . . . there is no tax incentive/savings to my having to pay spousal support . . . my wife's behavior resulted in that loss also.

Do you see where I'm going here? Not only did I have to endure a lot of financial/emotional suffering during the last 10 years of my marriage as I attempted to get my wife help for her addictions. But I have continued to suffered due to her behavior dring our 3 year separation and it now appears as my level of suffering may very likely increase with any court-ordered spousal support.

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Gary Berger said:

YOU WROTE:
The IRS did not give you the option of filing the innocent spouse form?

MY RESPONSE:
No . . . when I called the IRS all they wanted to do is to have me set up a payment plan for the total amount owed. Whe I explained my situation and asked if I could set up a plan to pay 50% (my share) of the tax liability I was told that they could not do that. As far as they were concerned me and my wife owed the total amount . . . either jointly or individually.

YOU WROTE:
How long has it been since that tax return was done? What tax year was it?

MY RESPONSE:
It was my tax return for the year 2001.

YOU WROTE:
You have the option of amending your return to file married filing separately. You also have the option of filing an innocent spouse form.

You need to see a tax attorney. Her 401K situation IS a monkey that you can get off your back legally if the return isn't past tax year 2001. However you only have until April 15th to amend 2001 (then its no longer amendable) so if that is the year see someone ASAP.

MY RESPONSE:

I was unemployed after being laid off from my job until February of last year. As soon as I joined the ranks of the employed, I met with a tax consulting firm . . . JK Harris and explained my situation to them. They had mee fill out a complete financial disclosure and then told me that they could represent me before the IRS and get my tax liability lowered to a manageable amount (pennies on the dollar) if I would enter into a contract with them. The way they explained it their fees would include both their service AND the negotiated tax settlement total. The 12 month contract called for me to pay them a retainer of $400 and monthly payments of $400. The explained that they would prepare an offer-in-compromise for the IRS in my behalf and handle everything. At the conclusion of the contract with them . . . I would walk away with NO tax liability. According to their rep. . . they do this all the time and are always successful because they emply ex-IRS personnel who "know how the system works". Any way . . . I agreed to their contract since my total payout was less than 50% of my tax bill and I really wanted to put all of this behind me now that I was working and signed the papers on March 12, 2004.

Well, after paying them the $400 retainer and $183 a month for 6 months . . . I received a notification from the IRS in September telling me that they were preparing to take legal action to garnish my wages, place leins on my personal property, etc. When I called them I was told that JK Harris had never notified them and they knew nothing of my arrangement with them.

I immediately called JK Harris and after several weeks they told me that after close examination . . . I did not qualify for the IRS Offer-in-Compromise program and they recommended that I negotiate directly with the IRS to set up a payment plan. When I asked them about the agreement we had . . . they explained that they had no way of being 100% sure I would qualify for the program but I was still responsible to pay them for their analysis for the term of the contract I had entered into. Of course I objected and cut off their access to my checking account that they had been directly debiting. My bank was able to reimburse me for the final payment since it was in their 30-day window for suspected fraud but I was still out the retainer and 5 months of payments.

I filed a complaint with the State of South Carolina where JK Harris resides and was told that they had fowarded my complaint to the appropriate party . . . the IRS.

I was never told anything about the innocent spouse form or the option of amending my return to file married filing separately by anyone I spoke to at JK Harris or the IRS. How do I find out more about this?

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