Posted on January 20, 2010 by Kysa Crusco

Sukerman: Accidental disability benefits are marital property subject to equitable division

In the last session of 2009, the New Hampshire Supreme Court issued its opinion In the Matter of Michele Sukerman and William Sukerman, in which the court held that accidental disability pension benefits are subject to equitable distribution in divorce proceedings. Court litigants should keep in mind that this case does not govern how accidental disability benefits or other marital assets will be divided, but rather holds that any property not excluded by law is thrown into “the pot.” How it will be divided is subject to the specific facts and circumstances of each case, and the factors set forth in RSA 458:16-a

William Sukerman was an employee at the Massachusetts Port Authority (MassPort) Fire and Rescue in Boston from 1991 until a heart attack forced him into retirement in 2008. Upon retirement William began receiving a pension under the Massachusetts retirement system which consisted of an ordinary pension benefit, an annuity and an accidental disability pension benefit. The final divorce decree of the Derry Family Division awarded Michele one-half of the William’s entire “pension plan which accrued between the date of the marriage . . . and the date of the filing of the petition for divorce.”

William argued on appeal that the accidental disability benefit should not have been included in the marital property distribution because it was compensation for lost earning capacity as well as pain and suffering. The court disagreed, and took a “mechanistic approach,” under which all property acquired during the marriage “without regard to title, or to when or how acquired is deemed to be marital property unless it is specifically excepted by statute.” There is no such exception for accidental disability pension benefits in RSA 458:16-a.

The court concluded that this so-called mechanistic approach “best comports with New Hampshire’s equitable distribution law,” under RSA 458:16-a, which provides that “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title is held in the name of either or both parties” is subject to equitable distribution. Consequently, the Sukerman case stands for the proposition that so long as there is no specific statutory authority excepting accidental disability benefits from property settlement, such benefits, being acquired during marriage, are marital property and therefore subject to distribution.

Crusco Law Office, PLLC law clerk Dan McLaughlin contributed to this post.

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Posted on January 12, 2010 by Kysa Crusco

Tax season tips for divorcing couples

For the next three months, the 2009 tax season is upon us. For divorcing couples, whether to file separately or jointly, who will claim the children and how to address alimony can add even more stress to the divorce and to tax season. However, Attorney Nancy Van Tine of the Massachusets Divorce Law Montior offers these five simple tax tips:

  • Child support is not tax deductible. If you pay the child support, you pay the taxes.
  • Alimony is tax deductible to the payor, and taxable to the payee.
  • Property settlement, or property transfers, pursuant to a divorce decree are not taxable. However, as Attorney Van Tine points out, this is only true for opposite sex marriages. Same sex marraiges have different rules as Attorney Van Tine blogged about here.
  • Transfers of pensions can be transferred without any tax consquences through a Qualified Domestic Relations Order (again, only if your are in a opposite sex marriage).
  • The IRS has five tips for recently married or divorce taxpayers regading name changes.  

I would add to Attorney Van Tine's list these tips:

  •  If you do not have a court order regarding the child tax credit, then you must follow the IRS rules. Specifically, the parent who has residential responsiblity and parenting time more than 50% of the time is entitled to claim the child.
  • If your divorce decree has not been issued prior to December 31st, you may file jointly or separately. However, if your divorce is final by December 31st, you cannot file jointly. Take a look at IRS Publication 504 for more information.

 

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Posted on January 5, 2010 by Kysa Crusco

What not to wear ... to court

I came across a must read post by Robert Mues of the Ohio Family Law Blog about how to dress for court. With all the preparation going into your case, planning your attire is probably not high on your priorities. However, it is an important part of your presentation and the impression that you make on the judge can have a lasting effect.

Case in point: I was sitting in court waiting for one of my cases to be called and watching a hearing in progress. The case was a parenting action, with two pro se parents appearing before the judge on a contested temporary hearing. The mother appeared neatly groomed and dressed, and seemed reasonable and articulate when presenting her case. The father, on the other hand, was dressed in torn cargo shorts, a thin, white tank top and work boots. He appeared sloppy and careless, and despite the fact the he seemed to have some good points about his case, it was hard to overlook his exterior when assessing his credibility. A pair of slacks or khaki pants and polo shirt would have gone a long way.

Attorney Mues advises litigants to dress as they would for church or an important job interview. Good advice. I would add that you should not overdress either. If you work as a mechanic, and rarely dress in a suit, steer clear. If you are an accountant and go to work every day in a suit, it is a good choice. Pick an outfit that will give a good impression, but an outfit that you will feel comfortable with and fits your personality and profession.

So, while you are going over your testimony, reviewing your proposed orders and preparing your exhibits, take a few moments to pick out and press your clothing for court. Making that good impression will kick start a good presentation to the judge.

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