Blog2024-06-22T18:10:47+00:00

Beware of Trusts in High Asset Marriages!

Consider the legal consequences of Trusts regarding the characterization of marital property, especially Trusts created by separate property prior or after marriage.  A Trust can be a creative and useful tool depending on the perspective and actual need of the parties.  To a spouse owning substantial separate property, an irrevocable Trust may be a safe haven that will guard the separate property and potentially the income from the separate property against property divisions in a Divorce Court.  On the other hand, in some cases, a spouse that has no separate property may be defrauded by the other spouse.

The Texas Courts have indicated that separate Trusts created prior to marriage, that are irrevocable spendthrift Trusts are a valid means to shelter separate property of the marriage and the income from the trusts are not subject to division during the divorce proceedings.  The beneficiary of the separate Trust (the spouse with the separate trust or beneficiary of a separate trust) do not have a present possessory right to any asset within the corpus of the Trusts.  If the spouse is granted a present possessory right to any portion of the trust in the trusts, then the income from the Trusts may be divided in a Divorce Court as community property.

This is an area of concern to the other spouse. If you are married to an unsavory spouse, where separate property assets owned prior to the marriage are put into an irrevocable spendthrift trust, take measure to insure no money or other property acquired during the marriage is siphoned into those separate Trusts. One spouse may siphon community property throughout the marriage into separate Trusts in order to deplete the community estate. This constitutes fraud on the community estate and the innocent spouse may seek adequate compensation.

It is important to hire an experienced attorney that understand the intricacies of Trusts and the part Trusts can play in sheltering community funds from a spouse during the marriage. Many wealthy men or women may abuse the Trust formation to defraud their spouses from fair community property allocation.  Wealthy spouses may use irrevocable or discretionary Trusts created prior to the marriage for asset protection instead of using prenuptial agreements or post marriage property agreements. The case law is still not completely settled in Texas regarding irrevocable Trust as they pertain to divorce and it is important to hire an attorney that can help guide you through these complexities and insure you are not being defrauded or taken advantage of in a divorce proceeding.

Trust Busting in a High Asset Divorce

One the most complicate and transparent ways an individual may defraud a spouse during a marriage is with the use of a trust.  A trust is an entity that separates equitable and legal title of all property or money placed within it. Prior to, during, or after marriage, a spouse may create a trust and name the children of the marriage or others, as the beneficiaries.  The spouse then may start siphoning community property and separate property into the trust removing the property from the community. This is a tactic commonly practiced when a spouse has failed to sign a pre-nuptial agreement.

Circumstances like this happen in High Asset Divorces because a trust may be used to protect properties from the other spouse. Attack the trust as a party of the case and request an accounting.  It takes an experienced lawyer to understand which trusts can be attacked and which trusts are impenetrable.

Trust busting consists of complex and arduous litigation depending on the circumstances. The circumstances of a trust are important in divorce cases. Here are a few questions you should ponder when assessing any trusts during a divorce:

  1. Determine when the trust was created;
  2. Determine if the trust is revocable trust  or irrevocable trust ;
  3. Determine who the beneficiary of the trust is;
  4. Determine who the trustee of the trust is;
  5. Determine who the settlor of the trust is;
  6. Determine the type of property or money that is placed within the trust; and
  7. Determine when the property or money was placed in the trust.

These are just a few inquiries you should make prior to meeting with your lawyer. It will save you time and money. Depending on the answers to the seven inquires stated above, an experienced lawyer may be able to bust the trust opening the property and monies for the final hearing in a divorce case. There are many defenses and unsettled law in connection with trust busting and an experienced attorney must be sought.

 

Julian Nacol, Attorney
Nacol Law Firm P.C.

Delinquent Child Support in Texas = Denial of Motor Vehicle Registration Renewals

December 2016 the Texas Department of Motor Vehicles will start denying motor vehicle registration renewals for parents who have gone at least six months without making a child support payment. The law applies to Office of the Attorney General (OAG) child support cases.

The OAG also has the authority to bar the renewal of professional, recreational and handgun licensed of parents behind on child support payments.

Delinquent Parents will receive a notice from the Department of Motor Vehicles and a letter from the attorney general’s office about two months before their registration is set to expire.

Once parents receive a notice, they must agree to a payment plan with the Attorney General’s child support division before they will be able to renew their registration.  This law only applies to motor vehicle renewals.  New vehicle purchases are not affected.

Spousal Maintenance Law for a Texas Divorce

The origin and basis of family law statutes and precedent in Texas were heavily influenced by the predecessor Spanish/Mexican Law prior to the formation of the Texas Republic. Spanish Law required in large measure that a husband and wife share ownership and if a divorce was granted then a 50/50 split of all property would ensue. Though there are exceptions to this, a general tenant of Texas property law states that both spouses will receive half of all the property they accrue during the marriage called “community property”, not inherited or received by gift. The influence of Spanish Law is a primary reason that for many years Texas has not favored any type of permanent alimony (also called spousal maintenance) after divorce.

In 1995 the Texas Legislature passed the first Spousal Maintenance Law that allowed a limited type of alimony. The law has been amended many times but in its current form it allows, upon proper proof, a spouse, under specific conditions to receive post-divorce money from their spouse for future support.  The eligibility for Spousal Maintenance in Texas is limited and narrowly constructed.

Texas Family Code 8.051 states the requirements for a spouse to be eligible for Spousal Maintenance (alimony) as follows:

The spouse in which requests the spousal maintenance has been a victim of family violence by their husband or wife and the offense occurred:

  1. within two years before the date on which a suit for dissolution of the marriage is filed or;
  2. while the suit is pending

OR

The spouse seeking spousal maintenance:

  1. is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
  2. has been married to the other spouse for 10 years or longer or lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
  3. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.

The qualifications are narrow. Spousal Maintenance focuses on a spouse who has been a victim of family violence, has a mental or physical disability, or has been married for at least 10 years. The amount of money the Court will allow to be paid to a spouse monthly cannot exceed the lessor of 5,000 or 20% of a spouse’s average monthly gross income per Texas Family Code 8.005.

If you are in the process of divorce, and have been a victim of family violence or have been married for at least 10 years, then speak with an experienced attorney about the possibility of obtaining Spousal Maintenance. Spousal Maintenance is not a permanent fix but a temporary solution until you can get back on your feet. Texas Courts are hesitant in granting spousal maintenance because the spouse of a marriage generally receives half of all property accrued during the marriage. If the required extraordinary circumstances are present it is possible to receive some type of alimony for a limited amount of time.

Contact an experienced attorney that deals with matters to inform you if spousal maintenance is possibility. If you have been a victim of family violence or have been a stay at home mom for at least 10 years then you may have the ability to receive a limited form of alimony to help aid you with the daunting task of finding a new job and starting a new life.

Child Abuse and Family Violence in Texas

The Texas Family Code defines Family Violence as an act by a member of the family or household against another member that is intended to result in physical harm, bodily injury, assault, or a threat on a family member in danger of imminent physical harm.  This abuse is defined as physical injury that results in substantial harm or genuine threat of sexual, intercourse or conduct; or encouraging the child to engage in sexual conduct.

What does “family” include?  Individuals related by blood or affinity, marriage or former marriage, biological parents of the same child, foster children, and members or former members of the same household (including roommates).

What about child abuse?

Some very interesting statistics:

  • A report of child abuse is made every ten seconds

  • More than four children die every day as a result of child abuse

  • 70% of children that die from abuse are under age of 4

  • Child abuse occurs at every socioeconomic level within all ethnic and cultural lines and all religions and all levels of education!

  • Approximately 30% of abused and neglected children will later abuse their own children

Statistics re: childhelp.org

In Texas (2008 Crime in Texas.com), victims are primarily female (75%) and the offenders are primarily male (77%). The primarily weapon involved in family violence is physical force with the use of hands, feet or fists (78%).

How can you know if child abuse exists in a household?

Look for these most common child abuse indicators in children:

  • Injuries that are unexplained

  • Major and sudden changes in a child’s behavior

  • Return to earlier behavior: such as bed wetting, thumb sucking, and fear of dark or strangers or more serious language or memory problems

  • Serious fear of going home

  • Changes in eating or sleeping habits

  • Changes in school performance or attendance

  • Lack of personal care or hygiene

  • New risk taking behaviors

  • Inappropriate sexual behavior

If you are a family member, friend, teacher, or child-care giver of a child who has started displaying very different behaviors or showing injuries, it is imperative that you contact someone who can either help this child or prevent any more family violence from occurring in this child’s family. This child and family need help now!

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