Deciding to divorce can be a complicated and gut-wrenching experience. So many questions:    

When is the best time to do it for my family and/or children?

Am I financially capable of doing it now or is there a better time?

Is physical or mental health or well-being a factor?

Ask yourself:  Are you avoiding the decision, or are you still preparing for the possibility, so you are covered no matter what decision you make?

The difference between avoiding the decision and preparing for it:

Avoiding looks like:

• Numbing yourself with distractions (hello doom scrolling!)
• Pretending everything is fine
• Telling yourself you can’t do it
• Hoping the problem will resolve itself
• Procrastinating on gathering basic information

Preparing looks like:

• Naming what you’re actually feeling, 
• Starting to gather financial information (even if it scares you)
• Starting to source attorney names
• Building emotional support
• Talking to a professional (a coach, therapist, attorney)

What can you do when you are still unsure, YES THERE IS SOMETHING YOU CAN DO:

You don’ t have to commit to start the formal divorce process to retain my services.

Many of my clients retain my services to help them make a detailed plan, a process that can show them what divorce may actually look like, the details,  to help them decide not only how to proceed, but IF AND/OR WHEN TO PROCEED. 

Some people decide in a week. Some people take two years.  Both can be okay. The only mistake is staying paralyzed by fear instead of taking small steps that get you closer to a decision,

Contact Stacey A. Balduf, Esq. for a free consultation by Zoom, in person or by phone at 315 622 5202 or staceybalduf@gmail.com

What Is a Separation Agreement?

A SEPARATION AGREEMENT IS: a formal acknowledgement that two spouses have agreed to separate but remain legally married. A document listing the terms of

Closeup of male hand signing divorce papers.

the separation and the responsibilities of each spouse. Primarily a permanent agreement which will be used as the terms of your final divorce.

It is important to note that except for proven fraud a separation or settlement agreement is very hard to change, buyers remorse is seldom considered. Be sure the agreement you enter into has EVERYTHING IN IT, no side agreements, no signing because you just want it over or to save money in the short term, etc.

In New York State the agreement must follow the specific laws and have specific language to be enforceable or used for divorce. Do not rely on a global internet to provide you with that document. If it is not correct, the agreement you rely on may not actually be your settlement and can cost you money, fees and assets.  Choices based on saving money can really cost you in the end.

What Information Do I Include in a Separation Agreement?

A Separation Agreement addresses important matters such as:

MINOR CHILDREN:

Type of custody: sole or joint

Visitation schedules

Child support payments, including frequency and amount

Division of other costs such as health insurance

Where they go to school

Parental fitness

Religion

SPOUSAL SUPPORT:

Spousal support payments, including frequency and amount

When payments will end

ASSETS AND DEBTS:

What will happen to the marital home, who keeps it, who cares for it while sale pending, what is it worth

Whether spouses are entitled to any specific assets, like financial accounts, pensions or investments

Who is responsible for any debts.

Do You Need Another Legal Form? 

• Outline the custody and care of pets after a separation with a Pet Agreement.
• If you have minor children, make sure to sign a Child Travel Consent regarding permission to travel alone with them.
• If you get divorced, be sure to update your Last Will and Testament.
• Qualified Domestic Relations Order so that you secure your interest in the spouses pensions, retirements or other financial assets.

TAX CHANGES IMPACT YOUR DIVORCE

There are a lot of moving parts to representing you during your divorce and the tax changes make it even more challenging. Now add the Recovery Rebate Credits (RRC), Child Tax Credit (CTC), Child and Dependent Care Credit (CDCC) and things get even more complicated.

First and foremost, your attorney should tell you that you need either a tax lawyer or a Certified Public Accountant to analyze any settlement or stipulation regarding your matter.  

So many attorneys don’t even understand that the recent tax changes impact your divorce.  The lawyer does not replace the experts but directs you to them so that after consulting with these experts and your attorney you are able to make the best decisions possible.

Information and knowledge are your friend.

If you’re divorced and taking turns claiming the credit collecting the credit may not be a good idea.

An example is: if Mom and Dad are divorced and have one child.

If Dad claimed the child on his 2020 tax return, he would have automatically begun getting the monthly payments on July 15. But Dad is not going to claim the child on his 2021 tax return, because it’s Msom’ turn.

So Dad ends up owing the government all the money he got through the monthly payments.Mom, meanwhile, has not been getting the monthly payments, so she will get the entire tax credit as one lump sum when she files her taxes.

Your child is now officially an adult!

The 2021 Child Tax Credit covers children from birth to 18. If your child turns 18 anytime in 2021 (even on December 31, 2021), he or she is not eligible for the credit. The IRS should have taken this into account in estimating the amount of your monthly payment, but it’s best to double check.

If you are mistakenly getting monthly payments for that child, you will have to pay the money back.

Likewise, if you have a child who turns 6 this year, you may want to double check that the monthly payment you’re getting for that child is correct. The 2021 credit provides up to $300 a month for children under 6, and up to $250 a month for children ages 6 to 17.–NPR 7.28.2021.

Okay, I’ve decided to opt out. How do I do it?

The IRS has created a website for managing your monthly payments. To stop the payments, you need to create an account with the IRS using a third-party app called ID.me. Heads up: It’s not the most user-friendly of apps. You’ll need to verify your identity by scanning a government ID as well as your face. Prepare to be patient.

You can also unenroll over the phone, but that may require even more patience.

An important note: If you’re married and filing jointly, both parents need to opt out. If only one parent unenrolls from the monthly payments, you’ll still get half the amount deposited into your bank account.

You have an opportunity every month through December to unenroll before the next payment lands. The deadline is three days before the first Thursday of every month. NPR 7.28.21https://www.npr.org/2021/07/28/1021285459/you-might-consider-opting-out-of-the-child-tax-credit-heres-why

The laws related to divorce and child custody have not changed in the unusual circumstances surrounding the Covid-19 outbreak. This means that a parent cannot unilaterally modify a child custody or parenting time agreement without going to court. If this is not an option in their area due to court closures, pauses or other limited access, the parents must maintain the schedule that was in effect prior to the outbreak unless they agree on a modified arrangement.

Transferring children between parents can expose them to an unnecessary risk of contracting the virus, especially if the parents do not live in the same area. Both parents may recognize this issue and work together to address it. If the parents have an amicable relationship, they may be able to agree on a temporarily modified custody arrangement. For example, they may agree to allow a child to spend more time with the parent who currently lives with them, in exchange for spending more time with the other parent later in the year. The parent who lives with the child also may agree to schedule video conversations between the child and the other parent. If you adjust your agreement with your ex-spouse or co-parent, you should put any changes to the agreement in writing and keep a hard copy of the revised agreement.

On the other hand, parents who feel hostile toward each other may not be able to reach an agreement. While you may have serious concerns about the health of your child, you should be aware that violating a custody order can result in a finding of contempt of court and other adverse consequences. Judges frequently reduce the custody or visitation rights of a parent who refuses to comply with a parenting time order, even in relatively extenuating circumstances.

Before taking this risk, parents may want to consult an attorney to file a petition for modfication or possibly work out a stipulation that follows NYS law (not just written on paper and notarized) to submit to the Court to alter their parenting plan. While the modification will not become an enforceable court order until a judge reviews it, it is likely to go a long way to keeping you from serious repercussions of simply “keeping” a child from a parent contrary to the current court order.