Estate Law

Estate Law Questions? Ask an Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Estate Law

An MSA has been agreed upon and a small inheritance owned by

Customer Question
defendant and alimony payor was...
An MSA has been agreed upon and a small inheritance owned by defendant and alimony payor was considered exempt. Parties were divorced and MSA entered into the order. After a protracted unemployment the only asset left to pay alimony is the exempt inheritance, which is in the form of a IRA. Can the alimony payor be forced to liquidate this in order to pay alimony?
Submitted: 1 year ago.Category: Estate Law
Show More
Show Less
Ask Your Own Estate Law Question
Answered in 23 minutes by:
5/13/2016
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Law Educator, Esq.
Category: Estate Law
Satisfied Customers: 119,441
Experience: Experienced in Trust and Succession Law, including Louisiana Laws
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Well, indirectly absolutely they could be forced to use their inheritance to pay the support. The IRA or inheritance cannot be directly attached for the payment of spousal support, but the court can indeed find that because the person has that money available to them, then they have other income available to pay support. In fact, I have heard courts tell clients they do not have to use their inheritance, but they can go get a job and pay what they owe instead and the choice is their choice, which is how I mean indirectly you can be made to use it.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
In that same instance...if an alimony modification is requested, can the judge count that inheritance in calculations as to ability to pay?
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
thank you for your reply.
Yes, they can count the inheritance towards the ability to pay. It frees up assets that you have available to make payments.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
Your answer above seems to suggest that there would be no way to compel liquidation of the inheritance asset but that the requirement to pay would still exist. If the payor viewed the inheritance as exempt and refused to liquidate, would the payor be incarcerated?
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
That is correct, there is no way to compel liquidation DIRECTLY, as I said there is an indirect way, meaning they can still mandate you pay and not relieve you of that responsibility and could put you in jail for non-payment. So they could force you to get a job and pay from that or use your inheritance to pay, either way they can still make you pay considering that you have this inheritance to support yourself.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
After a quick internet check I found the following: "While an inheritance is generally not subject to equitable distribution in New Jersey, the income or interest received from an inheritance can be used to determine an appropriate level of alimony. Thus, for instance, the income a spouse receives from an inheritance can decrease that spouse’s need for a certain level of alimony, even if that spouse never worked during the marriage.Notably, it is the inheritance’s potential to generate income that matters, so a spouse who receives an inheritance cannot deliberately shield an inheritance in an attempt to affect to raise or lower the alimony award. It also does not matter if that spouse chooses to actually receive the income derived from the inheritance, choosing instead to reinvest it.This issue was recently addressed again by the Appellate Division in the unreported decision of Overbay v. Overbay, where the Appellate Division affirmed the trial court’s finding that the Wife who had received an inheritance was able to generate additional investment income from the inheritance without any risk of loss or depletion of the inheritance principal. In so doing, the trial court considered expert testimony from both sides, as well as testimony from a court-appointed expert, to determine an accurate imputed rate of return on the inherited investments.You indicate that the inheritance could be used to calculate the amount potential for payment in a modification motion but the above suggests that ONLY the interest income could be used...? Specifically, Overbay v. Overbay, where the Appellate Division affirmed ..." an inheritance was able to generate additional investment income from the inheritance ...WITHOUT any risk of loss or depletion of the inheritance principal.
Customer reply replied 1 year ago
You see, I'm trying to see how to position a statement for a modification motion. Would I list the investment income only and state that the inheritance was exempt from distribution? And, for amounts already equitably distributed...would I just claim that and say they are no longer able to be counted again toward ability to pay....?
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
The court case is saying really what I said above, about "INDIRECTLY" getting to the inheritance. The principal inheritance is not counted, interest earned on it would be counted, BUT because that inheritance is there to support yourself, they can consider that you have other freed up income. The inheritance is not counted towards calculation of your alimony amount, but it is considered in your ability to pay
So you need to argue correctly that the court should not count the inheritance towards calculation of your alimony amount.
So you are going to correctly claim the inheritance cannot be counted as far as calculation of alimony.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
Thanks... you partially answered my last question but the final part was... "And, for amounts already equitably distributed...would I just claim that and say they are no longer able to be counted again toward ability to pay....?" ?Importantly, can you please let me know which case or caselaw I can use to reference? Specifically, that inheritance and already equitably distributed assets are not to be used to calculate alimony when seeking an alimony modification.
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
Amounts already given away or given to your ex are not still part of your assets and as such have no business being counted in any calculation. The assets have to be in your possession.
According to N.J.S.A. 2A:34-23(b), the factors a New Jersey court must consider when awarding spousal support include:
(1)The actual need and ability of the parties to pay;
(2)The duration of the marriage or civil union;
(3)The age, physical and emotional health of the parties;
(4)The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
(5)The earning capacities, educational levels, vocational skills, and employability of the parties;
(6)The length of absence from the job market of the party seeking maintenance;
(7)The parental responsibilities for the children;
(8)The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9)The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
(13) The nature, amount, and length of pendente lite support paid, if any; and
(14) Any other factors which the court may deem relevant.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
Thanks...sorry to be specific but I have a very specific judge. Let's say that there was an account worth $50,000 that was equitably distributed with 20% being given to the receiver of alimony and the other 80% to the payor of alimony. You say "Amounts already given away or given to your ex are not still part of your assets..." What about the 80% not "given away".... Since this was already determined to be equitably distributed .... should this simply not be counted in a determination for alimony modification? And, aside from N.J.S.A. 2A:34-23(b), is there any other caselaw that reinforces this?
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
I understand about your specific judge, but all judges have to go by what the law says, even though some may think they can make up their own law.
If the court ordered you to give your ex (for example only) 20% of the assets in equitable distribution, that does NOT count towards your assets for alimony because that 20% is not your asset any longer it is your spouse's asset. The statute enforces it, not case law, but it happens when people do not quite understand the laws and legal process they believe there is a case for everything, but this is just part of the statute on this matter.
She already received the equitable distribution because that was her marital interest, it is not your interest it is hers. For example only, if she got 20% of the marital assets awarded by the court in equitable distribution, that belongs to her it no longer belongs to you and is not part of your assets any longer.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
I understand that if she got 20% then that is no longer mine... I am asking about the 80% that I retain. In other words, since I have already gone through the process and we agreed to the equitable distribution, is my 80% portion now not used to calculate ability to pay? It seems that the whole idea of equitable distribution is to effectively negate both sides of the equation so the calculation can be made cleaner. If both sides cancel out and my 80% can no longer be counted then I would assume the judge would have to only use the income other than the 80% to determine my ability to pay....?
And, aside from N.J.S.A. 2A:34-23(b), is there any other caselaw that reinforces this? Thanks
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
No, since you kept the 80% share, that is part of your assets upon which support payments can be calculated. That is your money, your share of the marital assets and as it is your share of the marital assets, they belong to you to pay any bills you need to pay, which would include child support and spousal support. In other words, you are hoping that your assets can be excluded except for any new income to evade or avoid paying support, but that is not what the law says above.
Again, it is the statute, not the case law that applies in your situation.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
Thanks... I suppose I'm trying to reconcile D'Oro v. D'Oro, 187 N.J. Super. 377, 454 A.2d 915 (Ch. Div. 1982), aff'd, 193 N.J. Super. 385, 474 A.2d 1070 (App. Div. 1984). Where, in D'Oro, the court held that in a postdivorce proceeding, the husband's pension could not be considered "income" for the purpose of determining alimony. The court suggested that it would be unfair if the wife were able to assert what amounts to a double claim on the husband's pension. According to the court, "it would be inequitable for [her] to be able to include his pension income twice for her benefit, first for a share of equitable distribution, and second for inclusion in his cash flow determination of an alimony base." 454 A.2d at 916. The holding of D'Oro was subsequently codified by the New Jersey Legislature in a statute providing that once a retirement benefit "is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony."So...if something has already been equitably distributed...wouldn't it be the same as a double count, indicated in D'Oro?
Thanks
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
That is because pension is a monthly amount which the husband had reduced because she was already getting a share of it. In your case, the assets are part of your ability to pay, so that is what they will be considered as you can use them to support yourself and pay support to her. This is not a retirement income we are talking about, these are ordinary marital assets you have received and she has received.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
Ok let's say that the MSA equitably distributes the inheritance and the 401k and that both represent an ability to pay. If the MSA also listed an imputed income which went to zero because of unemployment wouldn't this be sufficient grounds to claim a change of circumstance?
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
Your ability to pay is already reduced in that case by the amount she has received already. That is already taken into account.
Ask Your Own Estate Law Question
Customer reply replied 1 year ago
So you're saying yes...?
that income reduced to zero because of unemployment IS sufficient grounds to obtain a modification? ...even if there are potential assets to utilize from the equitably distributed accounts...?
Estate Lawyer: Law Educator, Esq., Attorney replied 1 year ago
No, of course your assets are not reduced to ZERO, it is reduced to whatever is left after she is given her share. If you are on unemployment, that is a significant change in financial circumstances and that has nothing to do here with the other parts of the question, that is a separate issue you are now bringing up as we have been discussing the assets you were left after the distribution and that is part of your assets and a loss of employment is another part of the issue which is a significant change in your income which is another issue considered in a modification
Ask Your Own Estate Law Question
Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 119,441
119,441 Satisfied Customers
Experience: Experienced in Trust and Succession Law, including Louisiana Laws

Law Educator, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns.

Loretta TIllinois

Thanks Adam!! - A very direct and understandable response - you have been a great help!

Happy CustomerEllicott City, MD

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Thomas McJD

Thomas McJD

Attorney

3,170 satisfied customers

Wills, Trusts, Probate & other Estate Matters

Barrister

Barrister

Attorney

5,414 satisfied customers

17 yrs estate law, real estate. Wills/Trusts/Probate

RayAnswers

RayAnswers

Attorney

5,061 satisfied customers

Texas lawyer for 30 years in Estate law

Infolawyer

Infolawyer

Attorney

5,015 satisfied customers

Licensed attorney helping individuals and businesses.

Ely

Ely

Counselor at Law

1,839 satisfied customers

Fully licensed attorney in Texas in private practice.

RobertJDFL

RobertJDFL

Attorney

1,451 satisfied customers

Experienced in multiple areas of the law.

ScottyMacEsq

ScottyMacEsq

Attorney

1,162 satisfied customers

Licensed Texas General Practice Attorney

< Previous | Next >

Related Estate Law Questions
I am selling a piece of land and i will bring the money to
i am selling a piece of land and i will bring the money to the us … read more
Ely
Ely
Counselor at Law
Juris Doctor
1,839 satisfied customers
This is to the question I asked on Sept 23 entitled "My
This is a followup to the question I asked on Sept 23 entitled "My brother's estate has a house to sell...". Sorry it's on the long side. I'll give you a good bonus for clear, complete answers. I am t… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,414 satisfied customers
I'm trying to find out my father passed away in georgia and
Hi I'm trying to find out my father passed away in georgia and I did everything through private court (he really had little) but I wanted to do it all by the book...I even extended the newspaper adver… read more
jb156200
jb156200
Associate Attorney
Doctoral Degree
412 satisfied customers
Is a girlfriend allowed to be listed as a primary
Is a girlfriend allowed to be listed as a primary beneficiary when the owner of the policy passes away? … read more
Infolawyer
Infolawyer
Attorney
Doctoral Degree
5,015 satisfied customers
IF YOU NEED SOMEONE TO HANDLE YOUR PARTITON OF REAL PROPERTY
IF YOU NEED SOMEONE TO HANDLE YOUR PARTITON OF REAL PROPERTY WHAT KIND OF POWER OF ATTORNEY DO YOU NEED?… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,414 satisfied customers
My Father passed away 2 years ago next month and my Mother
My Father passed away 2 years ago next month and my Mother and oldest brother the executor has not probated the will I found out because the only debt my Dad had was the mobile home that Im living in … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,806 satisfied customers
Could you please give me some legal advice? I moved in with
Could you please give me some legal advice? I moved in with my parents (kept my home) to help care for my mom. Dad died. I continued to caread for and live with my mom. Mom died. I was financial POA. … read more
RayAnswers
RayAnswers
Attorney
Doctoral Degree
5,061 satisfied customers
What does it mean when a person said to his lawyer that for
What does it mean when a person said to his lawyer that for what his lawyer did him the lawyer “can get convicted for criminal conspiracy”? And what are some examples of what a lawyer can do to get co… read more
RayAnswers
RayAnswers
Attorney
Doctoral Degree
5,061 satisfied customers
How do you get proof of ownership of a deceased relative.
Hi, How do you get proof of ownership of a deceased relative. … read more
Infolawyer
Infolawyer
Attorney
Doctoral Degree
5,015 satisfied customers
I signed a letter to accept inheritance money approximately
I signed a letter to accept inheritance money approximately two weeks ago.. I still have not received any check. Should I file a motion for Show cause, if so how? The lawyer said I should have the mon… read more
Attyadvisor
Attyadvisor
Doctoral Degree
6,867 satisfied customers
M., simply to the point of importance is my parents moved
Good afternoon M. Wilson, simply to the point of importance is my parents moved years ago to a small rural town by the name of Troy, pa. now both deceased for a few years. The (Will) was ill written y… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
119,441 satisfied customers
Why would i need a letter of probate to get the remaining
why would i need a letter of probate to get the remaining amount of my father's fund? … read more
P. Simmons
P. Simmons
Attorney
Doctoral Degree
34,871 satisfied customers
My father (unmarried) passed away without a will, but I'm
My father (unmarried) passed away without a will, but I'm the only child. What documentation would I need to present to the bank to claim the balance of his account?… read more
Attyadvisor
Attyadvisor
Doctoral Degree
6,867 satisfied customers
I was listed as second beneficary in. My cousin life
I was listed as second beneficary in. My cousin life insurance. Policy. The first beneficary died. The executor of the will and his lawyer refuses to give me any information. Since I don't know the li… read more
ScottyMacEsq
ScottyMacEsq
Attorney
Doctoral Degree
1,162 satisfied customers
My mother who is 87 years old recently added me, her adult
My mother who is 87 years old recently added me, her adult son to her savings account as a joint owner. Am I an equal owner of the account? If so, would there be tax implications if I transfer money f… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
Father passes with irrevocable trust in Maryland.1 sibling
Father passes with irrevocable trust in Maryland.1 sibling is executor does the other sibling have any rights … read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
My husband died and I am named as personal representative.
My husband died and I am named as personal representative. His son from a previous marriage and myself are listed as 50% each beneficiaries. Can I liquidate the account and send a letter to distribute… read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
886 satisfied customers
I WOULD LIKE TO KNOW WHAT IS NEEDED TO TRANSFER FUNDS TO
I WOULD LIKE TO KNOW WHAT IS NEEDED TO TRANSFER FUNDS TO AMERICA CONCERNING A WILL NEXT TO KIN WHAT IS NEEDED FOR DOCUMENTS AND COST … read more
Barrister
Barrister
Attorney
Doctoral Degree
5,414 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x