What I Need To Know To File For Divorce In Pennsylvania

November 5, 2012 by

Divorce definition in dictionary
Deciding to file for a divorce can be a long and emotional process that affects you and those around you. Below is some preliminary information to consider.

1. If you have decided to file for divorce in Pennsylvania, you must first determine if you meet the jurisdiction requirement for Pennsylvania.

If you or your spouse have been living in Pennsylvania for more than six months, you may file for divorce in Pennsylvania. The county you file in can be the county your spouse lives in. If your spouse no longer lives in Pennsylvania, you may file in the county you live in.

Determine the grounds for divorce

a. No-fault. The court may decree a divorce where there is mutual consent and it is alleged that the marriage is irretrievably broken or when the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years.

b. Fault. Committed willful and malicious desertion period of at least one year; adultery; by cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse; bigamy; incarceration for at least 2 years; offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome

2. Locate all documents and family records

a. Birth certificates of children
b. Financial records
c. Pay stubs
d. Mortgage note
e. Documents for investment properties
f. Titles to automobiles
g. Bank statements
h. Insurance policies
i. Most recent credit card statements

3. When going through a divorce, you want to remember that your words and actions will be looked at under a microscope. Therefore, although it is emotional, you want to be mindful of your behavior at all times in a public setting, at home in front of family members and when using any form of social media. All of this will be taken into consideration in court.

4. Custody. There are two main forms of custody. Legal and physical.

a. Legal custody gives the custodian the right to make decisions about the child including medical and educational.

b. Physical custody is the physical possession of the minor child. This is generally the individual who the child lives with.

5. In any divorce proceeding, one must remember that property will be divided. Write down a list of items that you want to keep and those that you are willing to compromise.

There is simply too much at stake in a divorce proceeding to go through the process without an attorney to help guide you through the legal system. Feel free to contact David W. Edelman at Spadea & Associates, LLC in Ridley Park, PA at 610-521-0604.

Filed Under: Family Law Tagged With: , , , , , ,

Information Needed to Prepare Your Will & HCD

October 8, 2012 by

You need the following information to prepare your will, note that you and your spouse both need to provide this information separately:

  1. Your Name and address;
  2. List of beneficiaries and alternate beneficiaries and their relationship to you;
  3. List of specific bequests – list of assets that you want to leave to specific individuals other than your spouse;
  4. List of general bequests if any;
  5. Executor (male) or executrix (female) and their relationship to you;
  6. Alternate executor or executrix and their relationship to you;
  7. Guardian to raise children under 18 years of age and their relationship to you;
  8. Alternate guardian to raise children under 18 years of age;
  9. Custodian to watch over children assets until they are 25 years old or any age you designate and their relationship to you;
  10. Alternate custodian to watch over children assets;
  11. The name of the cemetery you wanted to buried in or if you want to be cremated.
  12. List of all assets including all real estate, stocks, bonds, IRA’s Annuities, etc.

How to Select Your Health Care Agent or Surrogate

When you decide to pick someone to speak for you in a medical crisis, in case you are not able to speak for yourself, there are several things to think about. This tool will help you decide who the best person is. Usually it is best to name one person or agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed.

The persons best suited to be your Health Care Agents or Surrogate rate well on these qualifications …

  1. Meets the legal criteria in your state for acting as agent or proxy or representative
  2. Would be willing to speak on your behalf.
  3. Would be able to act on your wishes and separate his/her own feelings from yours.
  4. Lives close by or could travel to be at your side if needed.
  5. Knows you well and understands what’s important to you.
  6. Could handle the responsibility.
  7. Will talk with you now about sensitive issues and will listen to your wishes.
  8. Will likely be available long into the future.
  9. Would be able to handle conflicting opinions between family members, friends, and medical personnel.
  10. Can be a strong advocate in the face of an unresponsive doctor or institution.

The person you choose to make health care decisions for you is known by different names in different states. This person is sometimes called a health care agent, proxy, representative, attorney-in-fact, surrogate, or even patient advocate. State rules for who may be a health care surrogates vary, but the most common groups disqualified are these:

  1. Anyone under age 18.
  2. Your health care provider, including the owner or operator of a health or residential or community care facility serving you — unless this person is your spouse or close relative.
  3. An employee of your health care provider — unless this person is your spouse or close relative.
  4. Talk to your surrogate or agent about the qualifications on the first page of this worksheet.
  5. Ask permission to name him or her as your agent or surrogate.
  6. Discuss your health care wishes and values and fears.
  7. Make sure your agent gets an original copy of your advance directive.
  8. Tell family members and close friends who you picked.
Filed Under: Estate Planning Tagged With: , , , , ,

Why I Can’t Disinherit My Spouse in Pennsylvania

October 1, 2012 by

Although Pennsylvania generally allows deceased spouse ( Testator) to give their property to anyone they wish, this right is limited by a law referred to as an elective share which is designed to protect surviving spouses from being disinherited. Before any property is distributed, the spouse is entitled to a family exemption of $3,500 from the estate. A spouse can then inherit anything left to her in her deceased spouse’s will. However, if the decedent disinherited her (left her out of the will), she is still entitled to inherit and claim her “elective share.” Section 2203 of the Pennsylvania Code sets the elective share at one-third of the decedent’s estate. If the spouse was left out of the will or was left less than one-third of the estate, she has the right to request her elective share from the orphan’s court in the county the estate was probated in. The Elective share will only be paid if the surviving spouse claims it within six months of the Testator‘s death the date of probate whichever is later. The disinherited spouse must notify the Orphans’ Court and the Executor or Administrator of her intention to claim an elective share in writing.

When determining how to pay the elective share the Orphans’ Court will attempt to honor the Testator’s will as much as possible. For instance, if the will makes a specific gift and there are sufficient assets to pay the elective share without using the specific gift, the beneficiary of the specific gift will likely receive that item. If there is not enough probate property to satisfy the full amount of the elective share, all of the remaining probate property is subject to the claim and any gifts or bequests will be reduced proportionately to pay the remaining balance.

The elective share is equal to one-third of the combined value of the following types of property:

1. Property passing by the Testator’s will.

2. Annuity rights transferred by the deceased spouse.

3. Property transferred within one year of the spouse’s death, to the extent that its value exceeds $3,000.

4. Property the deceased spouse transferred during the marriage, but retained the right to:
a. receive income from the property.
b. use the property.
c. take back the transferred property.
d. regain ownership by a right of survivorship.
e. transfer the property by acting alone.

Also anything the disinherited spouse would receive that was owned jointly with the Testator.

Please call Gregory J. Spadea at Spadea & Associates, LLC in Ridely Park, PA at  610-521-0604 if you need assistance in claiming the elective share or have any other estate administration questions.

Filed Under: Estate Planning Tagged With: , , , , ,

What Should I Do If I Owe the IRS Money for Back Taxes?

September 25, 2012 by

Notepad with sign Owe Taxes
If you have unfiled returns the first step would be to file those returns because you have to be in full compliance before you are eligible for an installment agreement. Then I would determine if you were assessed any penalties and if so I would try to get the penalties abated.

If you owe less than $50,000 you can get up to a 6 year installment agreement over the phone by providing limited financial information. However you must agree to make monthly direct debit payments from your bank account.

If you owe more than $50,000 you can still get an installment agreement but you have to file a 433-A financial statement and provide bank statements and mortgage and student loan payoff information.

The IRS uses that 433-A information which contains your income, assets and secured liabilities to determine your ability to pay the tax. However the IRS only considers secured liabilities like primary residence mortgages and student loans and monthly living expenses like food, utilities, health insurance transportation costs and court ordered payments like child support. The IRS has 10 years to collect the tax from the later of the due date of the return or the actual date filed.

If you file a separate business return (other than a 1040) like an 1120S or 1120 then you would also complete a 433-B based on that returns expenses.

If you do not have the ability to pay the tax within the 10 year collection statute you can consider filing an offer in compromise but the IRS also considers your health, age and future earning ability in addition to your assets and liabilities.

Once you get on an installment agreement, I can help you get the bank levy’s or wage garnishments released. Feel free to call Gregory Spadea at 610-521-0604 if you need help with back taxes.

Filed Under: Tax Law Tagged With: , , , , , , , ,

How do I File a Protective Refund Claim or Get IRS Penalties Abated?

September 20, 2012 by

Taxes
Protective Claims

If there is a split between Courts of Appeal on the treatment of a deduction or taxability of income item you can file a protective claim using form 843. If the IRS denies the claim you have two years from the denial date to petition the Federal Tax Court or Court of Federal Claims.

An example would be when the Insurance companies demutualized ten years ago and policy holders received stock in the insurance company the IRS took the position the policy holders had a zero basis in the stock.  Before the case was decided the policy holders filed protective claims for refund after the IRS disallowed their basis on their 1040, to preserve their refund until the Tax Court made a decision.  Since there were so many policy holders with the same issue IRS  Counsel decided not to disallow the 843 claims outright until the case was decided.

Penalty Abatement

The IRS allows you to request an elimination of all or part of penalties assessed and the corresponding interest that has accrued on those penalties.  Form 843 can be used to request the following:

  • A refund of tax, other than a tax for which a different form must be used. For example if you can use form 1040X to request a refund of income tax that should be used and not the form 843.
  • An abatement of tax, other than income, estate, or gift tax. Employers cannot use Form 843 to request an abatement of FICA tax, RRTA tax, or income tax withholding.  Instead they should use form 941X.
  • A refund to an employee of excess social security or RRTA tax withheld by any one employer, but only if your employer will not adjust the overcollection.   When claiming a refund of excess social security or RRTA tax withheld by one employer you must  attach a statement from the employer indicating the following.  1) The amount, if any, the employer has reimbursed you for excess taxes withheld.   2) The amount, if any, of credit or refund claimed by the employer or authorized by you to be claimed by the employer.   3) The employer should include in the statement the fact that it is made in support of your claim for refund of employee tax paid by the employer to the IRS.  If you cannot obtain a statement from the employer, you should attach a statement with the same information to the best of your knowledge and belief and include in the statement an explanation of why you could not obtain a statement from the employer. Attach a copy of your Form W-2 to prove the amount of social security taxes withheld.
  • A refund of excess tier 2 RRTA tax when you had more than one railroad employer for the year and your total tier 2 RRTA tax withheld or paid for the year was more than the tier 2 limit.

  • A refund or abatement of interest, penalties, or additions to tax, caused by certain IRS errors or delays, or certain erroneous written advice from the IRS. An Example is if an IRS official gave you erroneous advice while acting in an official capacity that you relied upon you can get the penalty and the interest on the penalty abated.
  • A refund or abatement of a penalty or addition to tax due to reasonable cause or other reason  allowed under the law. An Example would be if you relied on your Accountant in taking a deduction and the IRS disallowed that deduction you could request abatement of the penalty.
  • A refund of the penalty imposed under section 6715 for misuse of dyed fuel.
  • A refund of a branded prescription drug fee. You would have to attach a copy of the Form 8947 that provided the basis for the fee as calculated by the IRS, as well as any additional information on the amount to be refunded.

If you have questions or need assistance in filing form 843, contact Gregory J. Spadea at 610-521-0604.

Filed Under: Tax Law Tagged With: , , , , , ,

Why I need an IRA Trust

September 17, 2012 by

Jar with label Retirement Plan
The biggest retirement asset for most people other than their primary residence is their retirement plans. One way to ensure that your children do not mishandle your retirement funds after you and your spouse pass away is to set up an IRA trust as your Plan’s contingent beneficiary. This ensures an orderly transfer of wealth from one generation to the next.

The advantages of an IRA trust are as follows:

1. It allows you to control when distributions are made and the circumstances when they should be made. This also allows the beneficiary to stretch out the payments and pay the least amount of income tax over his or her lifetime. This also allows the IRA Assets to continue growing tax free inside the trust over the beneficiary’s lifetime.

2. The IRA trust assets would be protected from creditors so if your beneficiary is sued the assets in the IRA trust would not be subject to any creditor claims. In addition if your beneficiary gets divorced the IRA trust assets would not be part of the marital estate and not subject to claims by the ex-spouse.

3. You can select an investment advisor to ensure the IRA portfolio remains diversified to maximize the investment returns over your beneficiary’s lifetime.

4. If your beneficiary is disabled and receiving government medical benefits the IRA Trust would not disqualify him or her from continuing to receive benefits.

From a procedural perspective you would name the IRA Trust as a beneficiary of your IRA, and upon your passing the IRA trust would distribute the proceeds of your IRA to your beneficiaries over their lifetimes based on the IRS tables for required minimum distributions. If you were married, you may want to have your spouse be the primary beneficiary of your IRA and the IRA trust could be a contingent beneficiary of your IRA.

The reason this is so important is because a nonspouse beneficiary may not receive funds directly from an inherited IRA and roll them over tax free to another inherited IRA within 60 days, as a surviving beneficiary can. Therefore they must use a direct trustee to trustee transfer to avoid income tax on the distribution. Many beneficiaries do not realize once they take the distribution they will be taxed on the entire amount in the year they receive it. This would be disastrous from an income tax perspective because they will lose the power of tax deferred compounding over their lifetime. Therefore setting up the IRA trust as the Beneficiary avoids this problem.

If your IRA assets exceed $250,000 you should consider setting up an IRA trust to ensure your legacy is are protected and your beneficiaries are taken care of after your gone. Contact Gregory J. Spadea at 610-521-0604 if you would like more information.

Filed Under: Estate Planning, Tax Law Tagged With: , , , , , ,

How to Avoid a Will Contest

September 11, 2012 by

Signing Last Will and Testament
With such a large transfer of wealth passing from the current generation than ever before, it is not hard to imagine that litigation can occur at the passing of a loved one if a beneficiary is left out of the will.   A will contest is defined as a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary (mental) capacity, was operating under an insane delusion, or was subject to undue influence, or fraud or duress. A will may be challenged in its entirety, or only in part.

In order to file an objection against a will a person or party must have standing.  Typically, standing to contest the validity of a will is limited to two classes of persons: 1) those who are named on the face of the will (i.e. any beneficiary); 2) those who would inherit from the testator if the will was invalid.

If an heir is unhappy with the amount they received or didn’t receive under a will, he may contest the will.  It may be impossible to prevent heirs from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out. The following are some steps that may make a will contest less likely to succeed:

  • Make sure your will is properly executed. The best way to do this is to have an experienced estate planning attorney assist you in drafting and executing the will. Wills need to be signed and witnessed by two independent parties and notarized and should include a self-proving affidavit.
  • Explain your decision. If all the heirs understand the reasoning behind the decisions in your will, they may be less likely to contest the will. It is a good idea to talk to heirs at the time you draft the will and explain why someone is getting left out of the will or getting a reduced share. Although you should discuss it in person, always state the reason in the will. You may also want to include a letter with the will.
  • Use no-contest clause. One of the most effective ways of preventing a challenge to your will is to include a no-contest clause in the will. However this will only work, if you are willing to leave something of value to the potentially disgruntled heir. A no-contest clause states that if an heir challenges the will and loses, then he or she will get nothing. Therefore, in order to be effective you must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
  • Remove the appearance of undue influence. The most common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your son who is also your primary caregiver, your other children may argue your son took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive you to the attorney.
  • Prove competency. One common way of challenging a will is to argue the Testator was not mentally competent at the time he or she signed the will. Pennsylvania requires that you be over 18 years of age and be of sound mind. One type of mental incapacity is insane delusion which Courts have defined as a “fixed false belief without hypothesis, having no foundation in reality.  You can try to avoid this by making sure the attorney drafting the will tests you for competency.  The attorney may ask you a series of questions to ensure the Testator understands (a) the amount and nature of his or her property, (b) the heirs and loved ones who would ordinarily receive such property by his Will, and (c) how his Will disposes of such property.  The attorney will record your answers to show you were competent when you signed your will.  The attorney may also recommend you be tested by a doctor who will write a report indicating you were competent when you signed your will.
  • Remove the appearance of undue influence. The most common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your son who is also your primary caregiver, your other children may argue your son took advantage of his position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive you to the attorney.
  • Remove the appearance of fraud. A less common method of challenging a will is for an heir to argue that the Testator was fraudulently induced into signing his or her will. Fraud can occur if the Testator signed a will without realizing it was a will. It could also happen if someone gave the Testator misinformation that caused him or her to change the distribution in the will. It is very hard to prove but it happens.
  • Remove the appearance of duress. Duress involves some threat of physical harm or coercion on the testator by the perpetrator which caused the signing of the Will not to be voluntary.  To avoid this the Testator should be by themselves when they meet with their attorney to draft and sign the will with no beneficiaries present.

Please contact Gregory Spadea at 610-521-0604 if you would like your will reviewed to ensure the likelihood of it being contested is reduced.

Filed Under: Estate Planning Tagged With: , , , , , , , , , ,

What are the Advantages of Being a Real Estate Professional?

September 5, 2012 by

A real estate professional going over paperwork
The IRS treats rental property losses like passive losses meaning they are not from a trade or business. Rental activities are presumed to be passive by the IRS allowing passive losses to be deducted only against other passive income. Therefore if there is no other passive income such as rental income, the losses for that activity are suspended until the rental property relating to that activity is sold. Note that the IRS keeps track of the suspended passive losses for each activity when you file form 8582 with your federal income tax return.

However, there is an exception to that passive loss rule which is when a taxpayer is treated as a real estate professional. A real estate professional is someone who:

1. Devotes more than half of his or her personal services during the tax year in real estate businesses, and
2. who spends more than 750 hours materially involved during the tax year as a developer, broker, landlord or other real estate professional (also known as the Material Participation Test).

If both tests are met for each real estate activity then the loss is treated as an ordinary loss for that activity and can be deducted against other ordinary income.

Keep in mind the best type of loss to have is an ordinary loss because it can be deducted against other ordinary income like wages, bonuses, self- employment income, interest, dividends, rents and royalties.

To meet the 750 hour requirement the IRS requires you keep a log of the work you do as a landlord, contractor or broker. Examples include:

1. Working on or improving the property,
2. Researching and Bidding on properties,
3. Finding and Screening tenants,
4. Collecting rent,
5. Performing maintenance.

Since Material Participation must be established on an activity by activity basis, I always recommend an election be made under Treasury Regulation 1.469-9(g) to aggregate all real estate activities as one activity. This makes meeting the 750 hour rule much easier for taxpayers with more than one rental property or brokers who have other businesses besides real estate.

Once an election it is made is good for that tax year and all future tax years until either the Taxpayer or the IRS revoke it. Feel free to contact Gregory Spadea at 610-521-0604 to learn how to make the election.

Filed Under: Tax Law Tagged With: , , , ,

ARD Information Sheet

June 18, 2012 by

Mature businessman sitting in cell

What is the ARD Program?

ARD stands for “Accelerated Rehabilitative Disposition”. It is a probation program for first-time offenders, with very few exceptions. Probation can last from 6 months to 2 years. Upon the successful completion of ARD, this criminal case can be removed from your criminal record after two years.

If you are facing a first offense DUI charge in Pennsylvania you may be want to consider an alternative to the traditional criminal court case and that is the ARD program. ARD stands for Accelerated Rehabilitative Disposition. The ARD program was implemented by Pennsylvania to accelerate the court process in criminal cases such as first offense DUI’s that would not jeopardize the general public’s safety if the defendant were released back into society.

By admitting first time DUI offenders into the ARD program the Commonwealth of Pennsylvania is able to avoid wasting scarce resources on lengthy court hearings and the defendant is able to have their DUI expunged from their criminal record two years after they are accepted into the ARD program. Only first time DUI offenders may be eligible for the ARD program. The district attorney makes the decision as to whether or not a defendant will be admitted into the ARD program. Just because you are facing a first offense DUI charge does not mean that you are automatically admitted into the ARD program.

How do I fill out this ARD packet and apply for the program?

1) Read pages 1 – 3. This is information for you regarding the program, costs, and the application process. YOU MUST READ PAGES 1, 2 AND 3 AND KEEP THEM.

2) Fill out Pages 4 – 6. This section requires personal information regarding you, your past criminal history (if any) and contact information.

3) Sign page 7, certifying that the information on pages 4, 5 and 6 is true.
4) Read and Sign the “Waiver of Speedy Trial” form. You cannot apply for ARD if you don’t sign this form.

5) Read and Sign the “Waiver of Arraignment” form. At arraignment, you would be read the charges against you, have a judge assigned to your case, and be assigned a pre-trial conference date. However, if you are accepted to ARD, you will receive the required information in the mail, and do not have to appear at arraignment.

What happens after I get my preliminary hearing court date?

If your attorney cannot get the DUI charges dismissed you should waive your preliminary hearing and arraignment by submitting your ARD application as soon as possible and within two weeks of your arraignment date. Usually five weeks after the preliminary hearing date you have an Arraignment which is also waived unless you receive notice from us that your ARD application has been denied.

A few weeks after the scheduled arraignment date, you will be sent a certified mailing advising of the back-up pre-trial conference date (usually six months after the arraignment date) and the name of the judge assigned to the case. The reason why the pre-trial conference date is set so far in the future is to allow sufficient time for the District Attorney’s office to review the ARD application. Generally, ARD hearings are scheduled anywhere from 3 to 6 months after the arraignment date. If the ARD hearing is not scheduled or if ARD is rejected, you must come to court for the Pre-Trial conference.

After you waive the arraignment date and you get a pre-trail date you should do all the following:

1. You also need to schedule a 30 minute CRN evaluation which costs $70.00. Please call Diagnostic Services at 610-891-4571.

2. Complete the required 8 of the 16 hours of community service by calling Mr. Walter Omar at 610-891-5317.

3. The on-line safe driving class can be obtained through safemotorist.com, and then clicking Pennsylvania as your choice of state. It is sponsored by the American Safety Council, and costs $19.95 which can be paid by credit card. If you do not want to do it on line you can schedule and complete safe driving classes by calling 610-237-8630.

4. Schedule an Alcohol Evaluation by calling by calling James Hanlon at 610-891-4571.

5. If you can afford to pay all the fines by the pretrial date you can make payment arrangements, on the day of pre-trail date.

6. Call Gregory J. Spadea, Esquire at 610-521-0604, if you have any questions.

Filed Under: Criminal Law Tagged With: , , , ,

Do I Have to Pay Tax if I Receive a 1099-C – Discharge of Indebtedness Form?

June 13, 2012 by

Miscellaneous income form on desk
It depends on when the Creditor issues you that 1099-C.  Generally if you fail to pay your credit card or an unsecured debt the financial institution writes off the debt, and they have 10 years to issue you a 1099-C for the debt that was forgiven.  If the creditor fails to issue you a 1099-C within the 10 year state collection statutory period, then you do not have to include the discharged debt on your tax return.

There was a recent Tax Court Summary Opinion 2012-46 that addressed this issue. A credit card company forgave a debt and never issued a 1099-C.  It then sold the debt to a third party collection agency ten years later which then issued a 1099-C to the debtor. The Tax Court held that the debtor did not have to pay income tax on the forgiven debt because the state collection statute had expired.

In addition, no income tax is due if you are insolvent at the time of the discharge such as if you file for bankruptcy.  You can exclude the cancellation of debt income on IRS Form 982.

If you have any questions please call Gregory Spadea at Spadea & Associates, LLC in Ridley Park at 610-521-0604.

 

Filed Under: Tax Law Tagged With: , ,

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