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Hello everyone, my first post and English is my second language so please forgive my grammars and spelling!

My wife and I have 2 grown kids, we filed for divorce and finalized 7 years ago. We both own a home and agreed 50/50 when the house is sold. I'm living in the house with my new wife and still making payments. My ex-wife is now proposing 4 ways splits and she's asking 25% of equity in cash and withdraw her name from the deed and I verbally agreed to it. What should I do in regarding to the divorce agreement so that she won't come back at later time for the other 25%?

I'm from California and I'm intended that if everything going smoothly as planned then I would add my wife and two grown children to me deed.

TIA
 


Zigner

Senior Member, Non-Attorney
Hello everyone, my first post and English is my second language so please forgive my grammars and spelling!

My wife and I have 2 grown kids, we filed for divorce and finalized 7 years ago. We both own a home and agreed 50/50 when the house is sold. I'm living in the house with my new wife and still making payments. My ex-wife is now proposing 4 ways splits and she's asking 25% of equity in cash and withdraw her name from the deed and I verbally agreed to it. What should I do in regarding to the divorce agreement so that she won't come back at later time for the other 25%?

I'm from California and I'm intended that if everything going smoothly as planned then I would add my wife and two grown children to me deed.

TIA
If you are concerned that your wife may come back later and cause trouble, then you should have an attorney draft any agreement you come to and have your wife sign it. The attorney will know what to do to do things right (like including a provision for her to pay attorney fees if she tries to double-cross you).

Also, you write quite well...better than many who have posted here who are native English speakers :)
 

Taxing Matters

Overtaxed Member
We both own a home and agreed 50/50 when the house is sold. I'm living in the house with my new wife and still making payments. My ex-wife is now proposing 4 ways splits and she's asking 25% of equity in cash and withdraw her name from the deed and I verbally agreed to it.
Split 4 ways how? Split between you, your ex-wife, and your two kids?

What should I do in regarding to the divorce agreement so that she won't come back at later time for the other 25%?
At what stage of the divorce proceedings is this? Are you modifying a divorce settlement already agreed to, or is this negotiation for the final judgment of divorce? In any event, you'd want the agreement in writing and your lawyer to draft or review whatever agreement you make.

I'm from California and I'm intended that if everything going smoothly as planned then I would add my wife and two grown children to me deed.
I get that the deal is favorable to you in the sense that the ex-wife is agreeing to take less. But understand that adding your kids to the deed means that (1) you are giving away part of your home to your kids and (2) that this arrangement is likely to end up costing you (and your kids) more income tax when the house is sold later. It also results in a gift to your kids for which you may need to file a federal gift tax return.
 

adjusterjack

Senior Member
When you put people on the deed you are actually giving away part ownership that you can't get back unless the other owners sign it back over to you. When the kids grow up they might not want to share. When your next divorce happens your wife certainly won't want to share.
 

LdiJ

Senior Member
Hello everyone, my first post and English is my second language so please forgive my grammars and spelling!

My wife and I have 2 grown kids, we filed for divorce and finalized 7 years ago. We both own a home and agreed 50/50 when the house is sold. I'm living in the house with my new wife and still making payments. My ex-wife is now proposing 4 ways splits and she's asking 25% of equity in cash and withdraw her name from the deed and I verbally agreed to it. What should I do in regarding to the divorce agreement so that she won't come back at later time for the other 25%?

I'm from California and I'm intended that if everything going smoothly as planned then I would add my wife and two grown children to me deed.

TIA
Here is a potential problem: I am sure that your ex-wife is wanting to be removed from the mortgage. I suspect that she does want the cash, but also wants her credit freed up so that she is no longer obligated for your mortgage.

Paying her cash and removing her from the deed will not remove her from the mortgage. In order to remove her from the mortgage, you would have to refinance the house in just your name, (or perhaps adding your new wife to the refinance) for enough to buy out her share of the equity in the home, and to pay off the existing mortgage.

If your ex wife was not on the mortgage to start with, then you don't have that problem.
 
If you are concerned that your wife may come back later and cause trouble, then you should have an attorney draft any agreement you come to and have your wife sign it. The attorney will know what to do to do things right (like including a provision for her to pay attorney fees if she tries to double-cross you).

Also, you write quite well...better than many who have posted here who are native English speakers :)
Thank you and thank you for your advise!
 
Split 4 ways how? Split between you, your ex-wife, and your two kids?

Yes, that's correct.
At what stage of the divorce proceedings is this? Are you modifying a divorce settlement already agreed to, or is this negotiation for the final judgment of divorce? In any event, you'd want the agreement in writing and your lawyer to draft or review whatever agreement you make.

The divorce is finalized 7 years ago. Based on your question, do we allow to modify a divorce settlement after it is finalized? Would new notarized settlement agreement of both parties supersede divorce agreement?

I get that the deal is favorable to you in the sense that the ex-wife is agreeing to take less. But understand that adding your kids to the deed means that (1) you are giving away part of your home to your kids and (2) that this arrangement is likely to end up costing you (and your kids) more income tax when the house is sold later. It also results in a gift to your kids for which you may need to file a federal gift tax return.
(1) It's my wish that my kids and my current wife will split 3 ways of whatever I own when my time has expired
(2) I'm not quite understand the income tax thing. When my kid names are added to the deed, would that make them part owners of the home, or does that still count as a gift? In regarding to federal gift tax return, would I be solely responsible for federal gift tax or my kids or both my kids and I?
 
Here is a potential problem: I am sure that your ex-wife is wanting to be removed from the mortgage. I suspect that she does want the cash, but also wants her credit freed up so that she is no longer obligated for your mortgage.

Paying her cash and removing her from the deed will not remove her from the mortgage. In order to remove her from the mortgage, you would have to refinance the house in just your name, (or perhaps adding your new wife to the refinance) for enough to buy out her share of the equity in the home, and to pay off the existing mortgage.

If your ex wife was not on the mortgage to start with, then you don't have that problem.
She's been living in Europe in the past 4 years and just moved back to the states 4 months ago sharing the same room with her sister and holding a low paying job. I know she needs cash badly and I think that she thinks I could never came up with 50% but 25% is manageable.

My ex-wife is not a bad woman, she made an unfortunate mistake and I believe that she would not do me anymore harm....
 

stealth2

Under the Radar Member
If *I* were in your shoes? I'd have the title remain in my name only after your ex signs the quitclaim. Otherwise, you run the risk of your current wife claiming it as marital property *should* you split up. You can always distribute the property via your will.
 
If *I* were in your shoes? I'd have the title remain in my name only after your ex signs the quitclaim. Otherwise, you run the risk of your current wife claiming it as marital property *should* you split up. You can always distribute the property via your will.
Good advise, thank you!
 

Taxing Matters

Overtaxed Member
The divorce is finalized 7 years ago. Based on your question, do we allow to modify a divorce settlement after it is finalized? Would new notarized settlement agreement of both parties supersede divorce agreement?
Given the amount of time that has passed it's very unlikely that you can modify the divorce decree at this point in time. What you are doing is a new agreement between the two of you. That raises a number of tax issues for both of you. For starters, it means that both you and your ex are making gifts as a result of this deal, and that may require you each to file federal gift tax returns. Your new wife and kids are the ones receiving gifts out of this deal and would not have to file any gift tax returns. While you and your wife may need to file gift tax returns, you almost certainly would have no gift tax to pay, at least assuming that both of you are either citizens of the US or are residents of the US for tax purposes. What happens is that you first reduce your lifetime credit against federal gift and estate tax taxes. Only once you use up that credit (which is currently $11.7 million) would you have gift or estate tax to pay. Using this credit, though, should be done carefully since if some Democrats have their way that credit may end being reduced considerably in the future.

(2) I'm not quite understand the income tax thing. When my kid names are added to the deed, would that make them part owners of the home, or does that still count as a gift?
When you add the kids and your current wife to the deed, are you making a gift to them of part of the home. Gifts to your wife don't result in gift tax issues. But gifts to kids do.

As for income tax issues, there are two situations to keep in mind, which I'll explain by examples.

Example 1. Amy and Bart are husband and wife. They have two adult kids, Cindy and David. Let's say that Amy and Bart buy a home for $550,000 in 2010. They don't gift any part of the home to their kids. They live in the home all the time they own it and they sell the home in 2021 for $1 million. They have a gain on the sale of the home of $450,000 (the difference between the sales price and their basis in the home, the $550,000 they paid for it). But because they both owned the home and lived in it for all of the five years immediately preceding the sale they are eligible to exclude from income up to $500,000 of gain from sale of their home. Since their $450,000 of gain is less than the $500,000 maximum exclusion they pay no income tax on the sale of the home.

Now, suppose instead that Amy and Bart add Cindy and David to the deed of the home in 2015, so that now Amy, Bart, Cindy and David each own 25% of the house. At the time they do this, the house is worth $750,000. Amy and Bart have to file federal gift tax returns for the gifts they make to Cindy and David since those gifts to their kids amount to $375,000. They file the returns, reducing their lifetime unified credit against federal estate and gift tax but don't have to pay any actual tax. So far, no tax to pay, so all is good. Again, they sell the home in 2021 for $1 million, with half going to Amy and Bart, and Cindy and David splitting the other half. Amy and Bart now are getting $500,000 from the sale and their basis is $275,000, giving them a gain of $225,000. Again, their gain of $225,000 is less than the $500,000 of gain they can exclude so they pay no income tax on the sale. But Cindy and David don't get that credit because they didn't live in the home. They are adults who have been living in their own homes. Cindy and David together also have gain of $225,000 ($112,500 of gain each). So they end up paying tax at a long term capital gain rate of 20%, for a total income tax paid on the sale for them of $45,000.

In short, by giving Cindy and David half the house there ends up being $45,000 of income tax paid by Cindy and David where there would have been no income tax paid at all if Amy and Bart had not added the kids to the deed.

Example 2.

For this example, we will use the same facts as before, but now Bart dies in 2021. He gives his share of the home to his kids in his will, so that they end up owning half the home with his surviving wife, Amy, still owning the other half. The home is sold shortly after his death, again for $1 million. When Bart dies, the basis in his half share of the house gets reset to the fair market value of it, meaning that his half of the house gets a basis of $500,000, the same as its value. His kids get that basis when they inherit it. So when the house sells, Cindy and David have zero gain and therefore pay no income tax on the sale.

Amy's basis in her half in a non community property state in unchanged, but she'd still pay no tax because she'd still get the benefit of excluding gain up to $250,000 and her gain on her half is $225,000. (If Amy is in a community property state and Amy and Bart hold the property as community property then Amy gets a reset in her basis, too, again resulting in no tax paid by her on the sale.

But instead suppose that Amy and Bart give their kids half the house in 2015, like in the first example, so that they all have 25% ownership. There would be the same gift tax issues in 2015, of course. Then when Bart dies, he gives his remaining 25% share of the house to Amy in his will, so that again the result is that Amy owns half of it after he dies and Cindy and David each still own the 25% of it they had before his death. Because Cindy and David got their shares BEFORE Bart died, this time they don't get a step up in basis. They are again going to pay that $45,000 in income tax on the sale of their shares. (Amy still pays no income tax on the sale of her share, though I won't walk through the exact details of how that works out.)

So, again, the gift of half home by Amy and Bart to their kids before they did results in $45,000 of income tax being paid when the home sells where no tax would have been paid if the gifts before death had not been made.

The exact details of the value of your home now, what basis you have in it, and the details of the later sale of it matter, of course, and depending on those details the results may come out differently and there may not be such a difference in the income tax between making a gift now as opposed to waiting until you die to do it. Also my examples are a bit simplified to illustrate the principles involved. You might want to see a tax pro to crunch the numbers for your situation so that you know how this plays out for you.
 

Taxing Matters

Overtaxed Member
If *I* were in your shoes? I'd have the title remain in my name only after your ex signs the quitclaim. Otherwise, you run the risk of your current wife claiming it as marital property *should* you split up. You can always distribute the property via your will.
The OP and his wife are in California, a community property state. That complicates things because even if he keeps the property titled in his name he may still end up converting the property to community property ownership with his wife if any community funds are put into it. So if he wants to keep this as separate property he needs advice from a family law attorney on how to avoid converting it to community property. It's more involved than just keeping her name off the title.
 

stealth2

Under the Radar Member
The OP and his wife are in California, a community property state. That complicates things because even if he keeps the property titled in his name he may still end up converting the property to community property ownership with his wife if any community funds are put into it. So if he wants to keep this as separate property he needs advice from a family law attorney on how to avoid converting it to community property. It's more involved than just keeping her name off the title.
TY for the clarification, TM.
 
Given the amount of time that has passed it's very unlikely that you can modify the divorce decree at this point in time. What you are doing is a new agreement between the two of you. That raises a number of tax issues for both of you. For starters, it means that both you and your ex are making gifts as a result of this deal, and that may require you each to file federal gift tax returns. Your new wife and kids are the ones receiving gifts out of this deal and would not have to file any gift tax returns. While you and your wife may need to file gift tax returns, you almost certainly would have no gift tax to pay, at least assuming that both of you are either citizens of the US or are residents of the US for tax purposes. What happens is that you first reduce your lifetime credit against federal gift and estate tax taxes.
Duly noted. We both are naturalized US citizens.

Only once you use up that credit (which is currently $11.7 million) would you have gift or estate tax to pay. Using this credit, though, should be done carefully since if some Democrats have their way that credit may end being reduced considerably in the future.
Probably it won't effect me much because I'm not a millionaire. I believed that is Trump's tax plan and they’re set to expire by the end of 2025. It's a good thing for tax payers and in general, Democrats don't like good things for some reasons.

When you add the kids and your current wife to the deed, are you making a gift to them of part of the home. Gifts to your wife don't result in gift tax issues. But gifts to kids do.

As for income tax issues, there are two situations to keep in mind, which I'll explain by examples.

Example 1. Amy and Bart are husband and wife. They have two adult kids, Cindy and David. Let's say that Amy and Bart buy a home for $550,000 in 2010. They don't gift any part of the home to their kids. They live in the home all the time they own it and they sell the home in 2021 for $1 million. They have a gain on the sale of the home of $450,000 (the difference between the sales price and their basis in the home, the $550,000 they paid for it). But because they both owned the home and lived in it for all of the five years immediately preceding the sale they are eligible to exclude from income up to $500,000 of gain from sale of their home. Since their $450,000 of gain is less than the $500,000 maximum exclusion they pay no income tax on the sale of the home.

Now, suppose instead that Amy and Bart add Cindy and David to the deed of the home in 2015, so that now Amy, Bart, Cindy and David each own 25% of the house. At the time they do this, the house is worth $750,000. Amy and Bart have to file federal gift tax returns for the gifts they make to Cindy and David since those gifts to their kids amount to $375,000. They file the returns, reducing their lifetime unified credit against federal estate and gift tax but don't have to pay any actual tax. So far, no tax to pay, so all is good. Again, they sell the home in 2021 for $1 million, with half going to Amy and Bart, and Cindy and David splitting the other half. Amy and Bart now are getting $500,000 from the sale and their basis is $275,000, giving them a gain of $225,000. Again, their gain of $225,000 is less than the $500,000 of gain they can exclude so they pay no income tax on the sale. But Cindy and David don't get that credit because they didn't live in the home. They are adults who have been living in their own homes. Cindy and David together also have gain of $225,000 ($112,500 of gain each). So they end up paying tax at a long term capital gain rate of 20%, for a total income tax paid on the sale for them of $45,000.

In short, by giving Cindy and David half the house there ends up being $45,000 of income tax paid by Cindy and David where there would have been no income tax paid at all if Amy and Bart had not added the kids to the deed.

Example 2.

For this example, we will use the same facts as before, but now Bart dies in 2021. He gives his share of the home to his kids in his will, so that they end up owning half the home with his surviving wife, Amy, still owning the other half. The home is sold shortly after his death, again for $1 million. When Bart dies, the basis in his half share of the house gets reset to the fair market value of it, meaning that his half of the house gets a basis of $500,000, the same as its value. His kids get that basis when they inherit it. So when the house sells, Cindy and David have zero gain and therefore pay no income tax on the sale.

Amy's basis in her half in a non community property state in unchanged, but she'd still pay no tax because she'd still get the benefit of excluding gain up to $250,000 and her gain on her half is $225,000. (If Amy is in a community property state and Amy and Bart hold the property as community property then Amy gets a reset in her basis, too, again resulting in no tax paid by her on the sale.

But instead suppose that Amy and Bart give their kids half the house in 2015, like in the first example, so that they all have 25% ownership. There would be the same gift tax issues in 2015, of course. Then when Bart dies, he gives his remaining 25% share of the house to Amy in his will, so that again the result is that Amy owns half of it after he dies and Cindy and David each still own the 25% of it they had before his death. Because Cindy and David got their shares BEFORE Bart died, this time they don't get a step up in basis. They are again going to pay that $45,000 in income tax on the sale of their shares. (Amy still pays no income tax on the sale of her share, though I won't walk through the exact details of how that works out.)

So, again, the gift of half home by Amy and Bart to their kids before they did results in $45,000 of income tax being paid when the home sells where no tax would have been paid if the gifts before death had not been made.

The exact details of the value of your home now, what basis you have in it, and the details of the later sale of it matter, of course, and depending on those details the results may come out differently and there may not be such a difference in the income tax between making a gift now as opposed to waiting until you die to do it. Also my examples are a bit simplified to illustrate the principles involved. You might want to see a tax pro to crunch the numbers for your situation so that you know how this plays out for you.
Very informative, thank you so much for your assistance I sincerely appreciate your help! You must be a CPA. I will seek legal and tax advice.
 

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