Divorce

Feb
20

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.

By Nacol Law Firm P.C. | Property and Asset Division
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Parent Alienation in Divorce

In recent years, “parent alienation” has become more prevalent in divorce cases.  Parent alienation is the dramatic change in the relationship between a parent and their child when the child is used as a tool by one parent to hurt the other parent.  Parent alienation can include much more than brainwashing of a child.  In many cases, the child becomes hostile towards the alienated parent as they are fed not just conscious, but subconscious and unconscious, messages by the alienating parent.  Frequently, the child will turn on the parent they previously loved and were very close to prior to the institution of the divorce proceeding.  In some cases, the alienating parent will go to extreme lengths to keep the alienated parent from seeing the child for long periods of time.  Children begin acting out and the situation quickly becomes volatile.

When children are used in such a manner, emotions are quickly aroused and a very simple divorce case can quickly become a highly contested case fueled by resentment and hostility.  Parents who are successful in getting primary custody of a child in a parent alienation situation share many similar characteristics and may use some of the following tools to assist them in their defense:

  • Keep an even-temper, remain logical and keep your emotions under control.  Never retaliate.
  • Though you may think of giving up, never do so.
  • Go to the financial expense of seeing the case through.  Never give up on your child.  There can be nothing more important than the happiness of your child.
  • Seek help from a skilled attorney who has experience with parental alienation.
  • Familiarize yourself with how the courts work and the laws as they apply to your specific case.
  • Seek professional help and diagnosis.
  • Request a social study into the circumstances of the child
  • Request a psychological evaluation of the alienating parent
  • Keep a chronology or diary of events (this will help to jog your memory, keep track of witnesses, etc.). 
  • Document the alienation for submission as evidence in court.
  • Keep the best interest of the child at heart.
  • Provide the Court with an appropriate parenting plan.
  • Make sure you understand the nature of the problem and focus on correcting it, even though you are being victimized.
  • Always call and show up for visitation with your child at the scheduled time, even if there is no chance of the child being there. 
  • Take witnesses to testify that the child is not at home when you exercise your visitation rights.
  • Focus on the child, and never talk to the child about the other parent or the divorce case.
  • Never violate the Court’s orders.
  • If you are receiving disturbing phone calls from the child or the other parent, tape the calls.
  • If you are receiving disturbing emails or text messages from the child or the other parent, make a copy and place in a file.

Though none of these tips will guarantee that you get custody of the child, they will definitely assist you in building a case against the parent who is attempting to alienate you from your child.

By Nacol Law Firm P.C. | Parent Alienation
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Family Conflicts and the High Conflict Spouse

Recently, we have encountered new “Conflict Laden Participants in Divorce” like Charlie Sheen, Mel Gibson, Alex Baldwin, and their Spouses who have shown us how not to get divorced!

Divorce Courts are full of people like this and they are called “High Conflict People” (HCP’s). Are you glad you are not married to one of these people or are you? HCP’s seem very caring and sincere and it may take months or years before a legal professional can identify this personality disorder.  HCPs may cause enormous emotional pain and excessive financial costs to their spouse and children before this disorder is brought to light. 

Bill Eddy, legal specialist of the High Conflict Institute, has given a list of:

The High Conflict Personality Pattern of HCP Personalities

  1. Rigid and uncompromising, repeating failed strategies
  2. Unable to heal or accept a loss
  3. Negative emotions dominate their thinking
  4. Won’t  reflect on their own behavior
  5. Can’t empathize with others
  6. Preoccupied with blaming others
  7. Won’t accept any responsibility for problems or solutions

HCP’s stay unproductively connected to people through conflict and will continue to create conflict to maintain any sort of relationship, good or bad.  Since HCP’s undermine all relationships, they constantly repeat their same patterns and usually end up divorcing repeated times.  20-30% of all couples getting divorces have at least one HCP spouse.

According to the High Conflict Institute, HCPS are driven by four primary fees:

  1. Fear of being ignored
  2. Fear of being belittled or publicity exposure
  3. Fear of being abandoned
  4. Fear of being dominated, includes fear of losing control over you, the other spouse, their money/assets, or themselves

What can the spouse of an HCP do to help bring the family conflict or divorce to completion?

  1. Tell your attorney what your bottom line is and stay with your decision.
  2. Maximize any leverage you have and stay on the course.
  3. Choose your battles carefully.
  4. Everything must be in writing.
  5. Work on keeping total & consistent emotional detachment from the HCP.

Just remember the HCP feels that since you are no longer together, and since you know too much about him/her, you must be discredited so that no one will think that they are the problem!

You will need to learn some pracetical skills on communication and response to your HCP and also when & how to let your attorney deal with this situation, how to enforce your guidelines, and hopefully, your thoughtful and reserved conduct will result in the best possible outcome.

By Nacol Law Firm P.C. | Filing for a Divorce . High Conflict Divorce
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Alimony Expands in Texas

Spousal support law continues to evolve in Texas; but like the hot, dry summer days which seem to creep along, the process moves slowly.

Governor Rick Perry signed HB 901 on June 17, 2011. The law is effective for Texas divorce cases filed on or after September 1, 2011. In 1995, Texas was the 50th state to pass a law providing for spousal support and has been one of the most restrictive in the nation.

The new law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.

Major changes to the spousal support law are:

1. The maximum amount of spousal support that courts may award increases from $2,500 to $5,000.00 per month, although still limited to 20 percent of the payer’s average gross monthly income.

2.  The duration of spousal support is extended from a maximum of 3 years to a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.

3. The law clarifies that if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.

4. The law also clarifies that a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.

In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”, AND one of the following:

(1)  The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;

(2)  The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;

(3)  The recipient is the custodian of a child of the marriage of any age who required 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; OR

(4)   The person ordered to pay support must have been convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.

Under the previous law, under most circumstances, the court could only order maintenance for a maximum of three years, regardless of the length of the marriage. Under the new law, the court can order maintenance to continue for:

(1)  5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;

(2)  5 years if the parties were married more than 10 years, but less than 20 years.

(3)  7 years if the parties were married more than 20 years, but less than 30 years;

(4)  10 years if the parties were married for more than 30 years.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.

However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.

If you are contemplating dissolving your marriage and have questions concerning your financial future, seek competent legal counsel to help you determine whether you could be eligible for spousal support under the expanded provisions of the new law.

By Nacol Law Firm P.C. | Stay At Home Dads
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Hers, His, Ours: Marriage – Divorce – Remarriage

Today’s family unit is often in a state of flux. After a divorce, most people remarry and often there are children involved. In the new, blended family, one or both spouses may be paying child support. Newly-born or adopted children may also enter into the picture.

Sometimes, the cycle continues: marriage, divorce, remarriage, divorce.

Now, mom or dad has children in multiple households.

Do the additional children change the amount of child support to be paid? Not without a court order.

In Texas, child support may be reduced when an obligor (person paying child support) has additional children that the obligor is legally required to support. These children may be new biological children, or legally adopted children. Generally, Texas courts do not consider stepchildren as a factor in reducing child support.

Texas courts follow statutory guidelines in determining amount of child support. Many people are familiar with the following basic formula: 20% of net income for one child; 25% of net income for two children; 30% of net income for three children; and so on.

However, under the legal guidelines, the court also considers whether the obligor has a legal obligation to support other children, either under another child support order or because the obligor has legal custody of the child. In cases involving the children in multiple households, the court may consult the following chart from Section 154.129 of the Texas Family Code:

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

 

1 child 20% of Obligor’s Net Resources

2 children 25% of Obligor’s Net Resources

3 children 30% of Obligor’s Net Resources

4 children 35% of Obligor’s Net Resources

5 children 40% of Obligor’s Net Resources

6+ children Not less than the amount for 5 children

 

Depending on the number of other children an obligor has a duty to support, the percentage of child support may be lower. For example, if the obligor was previously married and has 1 child to support in the previous marriage, the amount of support paid for one child before the court decreases to 17.50 percent. See the chart below.

 

Multiple Family Adjusted Guidelines

(% of Net Resources)

Net Monthly Resources X Percentage Below = Monthly Child Support Obligation

 

 

Number of other children for whom the obligor has a duty of support

Number of Children Before the Court

 

1

2

3

4

5

6

7

0

20.00

25.00

30.00

35.00

40.00

40.00

40.00

1

17.50

22.50

27.38

32.20

37.33

37.71

38.00

2

16.00

20.63

25.20

30.33

35.43

36.00

36.44

3

14.75

19.00

24.00

29.00

34.00

34.67

35.20

4

13.60

18.33

23.14

28.00

32.89

33.60

34.18

5

13.33

17.86

22.50

27.22

32.00

32.73

33.33

6

13.14

17.50

22.00

26.60

31.27

32.00

32.62

7

13.00

17.22

21.60

26.09

30.67

31.38

32.00

The court may also consider additional factors listed in Section 154.123 of the Texas Family Code.

In order to benefit from these factors, the obligor must present evidence that rebuts the presumption that the statutory guidelines is in the best interest of the children. When a person has children in more than one household, determining child support can be complicated. A wise person will seek the professional help of an experienced family law attorney.

By Nacol Law Firm P.C. | Child Support For Fathers
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Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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