By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
In most states, once parties have negotiated and entered into a settlement agreement that the divorce court then incorporates into a decree, the court cannot modify the agreement absent fraud, duress or mutual mistake. So, what can you do to avoid 10 common mistakes made post-divorce? Here are some suggestions.
Mistake #2: You Cannot Claim Your Children
You may feel that, because you pay child support, you should be able to claim your children as dependents for tax purposes. Not so fast. Each child must be a “qualifying child” under the IRC to be a dependent. In most cases, because of residency requirements, children are “qualifying children” of their custodial parents, the parent with whom they spend more than one-half of their time. There is a special rule for divorced or separated parents. Under this rule, the non-custodial parent may claim the child if (1) they are divorced or legally separated, execute a separation agreement or have lived apart for the preceding six months, (2) the child received at least one-half of his support from the parents, (3) the child is in one parent’s or both parents’ custody for at least one-half of the year, and (4) the custodial parent signs a written declaration releasing the child for the dependency exemption, and the non-custodial parent attaches this declaration to his tax return. See IRS Publication 504. There are exceptions for pre-1984 divorces. If you want to claim your children, be sure your decree states, at a minimum, the year(s) you will claim each child, the documents you and your ex will have to execute to facilitate it, a continuing duty to cooperate and execute all reasonably necessary documents timely and in good faith, and the consequences if your ex refuses to release the exemption or is otherwise uncooperative.
Mistake #3: Your Spouse Has Not Refinanced
If one spouses retains the home, the agreement does not mean, absent more, the non-taking spouse is no longer liable to pay the home mortgage. The lender is not a party to your divorce, so the court cannot adjudicate the lender’s rights to repayment. Careful drafting in the settlement agreement, the decree and all related documents is an absolute must. These should, at a minimum, require the taking spouse to refinance the mortgage into the spouse’s name immediately; if that is impracticable, the spouse should have a continuing duty to apply for refinancing in good faith until successful and, in the interim, hold the non-taking spouse harmless for any mortgage default and the costs thereto (e.g., interest or penalties). They should specify each spouse’s responsibility for property taxes, insurance, homeowners’ association fees and any other liabilities until the home is refinanced or sold. They should specify what recourse the non-taking spouse has against the spouse in the event of default, such as liquidated damages, a default judgment equal to the amount of the mortgage or other liabilities, mandatory attorney fees and/or contempt.
Mistake #4: Your Spouse Is Still A Named Titleholder
Imagine the dismay (horror?) of discovering, on the eve of your home sale, that your ex-spouse from fifteen years ago is still a named titleholder on your deed records. To complete the sale, you need your ex to execute a quitclaim deed to you. But your ex absconded to Vegas a year after your divorce, and no one has heard from her since. Sound unbelievable? This happened to one of my clients, who was (understandably) disappointed to learn that we had to track down her ex-husband. She incurred attorney fees and deed recording costs for something that could, and should, have been resolved concurrently with her divorce. Whenever you award property to one spouse or to both spouses in a different format (e.g., as tenants in common rather than as joint tenants), be sure to execute deeds to effectuate the transfer in addition to the settlement agreement and the divorce decree. You need to have clear title. Ideally, these will all be prepared and ready for execution at the same time. If not, then your settlement agreement and your decree must require each spouse to cooperate to execute all reasonably necessary documents as soon as practicable and specify consequences for the uncooperative spouse. You should also inquire of your register of deeds or county clerk whether you can make your decree “in recordable form.” In Michigan, a judgment of divorce is recordable and, once recorded, serves the same purpose as a deed if it complies with certain format requirements, such as containing all of the property’s legal description. That way, parties can simply record their judgments in lieu of deeds when their ex-spouses abscond or refuse to cooperate.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.