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How Can I Ensure My Estate Is Protected from My Child’s Other Parent?

One of the most important issues for a parent is taking care of their child. Single parents often worry about who will provide for their child if they suddenly pass away. This leads many parents to develop an estate plan that ensures their child is provided for in the event something happens. Not only are the assets of the parent addressed in an estate plan, but the parent can also specify what happens to their property, jewelry, and other valuable items.

But what happens if the child’s other parent is not someone who is trustworthy enough to oversee any inheritance the child receives? Are there ways for a single parent to structure an estate plan to make sure that their child has everything they need — without fearing that some of their money will be used for purposes unrelated to their child’s wellbeing?


One way to protect your child’s inheritance from their other parent is to create a trust. Legally, a trust involves three parties:

  • The person who creates the trust (trustmaker)
  • The person who will benefit from the trust (beneficiary)
  • The person who will hold the trust assets for the benefit of the beneficiary (trustee)

When you create a trust, you can choose anyone you want to be trustee. Even if the trust is for your child, you do not have to make the other parent the trustee. You can choose a close family member, friend, or an attorney, like an estate planning lawyer Phoenix AZ trusts, to oversee the trust and make sure your child’s needs are taken care of.

Legal Entities

Depending on the size of your estate and what type of assets and property you have, you can also protect your child’s inheritance by utilizing a family limited partnership or a limited liability company (LLC). The partnership agreement or the LLC’s operating agreement can place limits on any transfers of ownership interests, real estate, or any other assets in the limited partnership or LLC. Your estate planning attorney can advise you if one of these options would work for your situation.

Adult Children

Not only do you have control over your estate regarding young children, but you also have some control over your estate with adult children. It is not uncommon for parents to realize that the person their adult child has chosen for a spouse may not be the best choice. In these situations, many parents are concerned that any inheritance they leave their child will end up becoming part of a divorce settlement if their child’s marriage ends.

One of the best ways to ensure that doesn’t happen is to set up a lifetime trust. In this type of trust, assets are protected from becoming part of a marital estate and therefore are not subjected to any part of a divorce settlement. You can name a trustee who will maintain control over the trust and it will be up to their discretion to approve any withdrawals of assets.

For more information about creating a trust, or to speak with an attorney who may help you create a trust for your child, contact a lawyer.


Thanks to our friends and contributors from Kamper Estrada, LLC for their insight into estate planning.


Estate Planning for the Single Parent

When many people think of estate planning, they often think it is something that elderly people must do. The truth is that every adult should address estate planning, especially if they have minor children. This can be especially true if you are a single parent and have an acrimonious relationship with your co-parent.

It is important to remember that if something should happen to you, your child’s other parent would have full custody. This means they would also have full legal control over decisions for your child, including financial ones. This could include any assets or property your child inherits from you if you have not made any estate planning arrangements. The following are some frequently asked questions that many single parents have for a Scottsdale AZ guardianship lawyer.

What happens to any assets or property my child inherits from me?

As mentioned above, if nothing has been legally set up by you, your child’s other parent would likely have control over those assets until your child turns 18. If this is something you would object to, then it is critical to leave instructions on who should be in charge of handling these assets. Many single parents in this position choose a trusted family member or friend to oversee these assets and designate this person to be appointed as the child’s conservator upon the parent’s death.

The next step is to set up a trust where all of the assets for your child will be placed. You will have to name a trustee, which will likely be the same person you chose as conservator. The trustee will have complete control over the trust and will decide how and when any funds will be dispersed.

Although your child can legally inherit and take control of any assets or property when they turn 18, you can set the rules of the trust so that the trustee still remains in control until your child is older and will likely be more mature to handle their own finances, as well as be in a better position to not be influenced by others trying to gain access to those funds.

Do I still need to choose a guardian?

Although in most situations the other parent would have complete custody of your child should you pass, there may be situations where you should still name a guardian. For example, there are many situations where a single parent has sole custody of the child. Some of the reasons for this could include the other parent has a substance abuse problem, has a history of domestic or child abuse, or is incarcerated. If you have not had a will drafted that names the person you want to have legal guardianship of your child should you die, then it will be up to the courts to decide and it could end up being someone who you would not have chosen.


Thanks to our friends and contributors from Arizona Estate Planning Attorneys for their insight into guardianship laws.


The Tax Cuts and Jobs Act of 2017 and Your Divorce

If you are considering divorce, you may wonder how the tax act of 2017 could affect your final agreement. Changes have been made in many areas including new tax brackets, modified deductions as well as significant corporate tax changes. A lesser known change is the tax treatment of alimony paid upon divorce.


What is Alimony?

Alimony, maintenance or spousal support (however it is described in your state) represents a payment from a higher-earning spouse to the other spouse for their support after a divorce.


How has Alimony Changed?

Decades ago, it was almost always paid from a husband to a wife for longer periods. In a very long divorce where the wife had no skills, it was sometimes ordered for life. More recently, it is paid from the higher-earning spouse regardless of gender. In addition, the time frame has shortened significantly considering the time needed for the receiving spouse to increase earning capacity through education or experience within a current job.


Changes in Comparing Spouses’ Fault

Until 1969, every state in the country considered the fault of each of the parties which affected property division and alimony payments. This could be abandonment, adultery, extreme cruelty, etc. Now, only approximately half the states take fault of the parties into consideration when determining whether to award alimony. Some states have a hybrid system where the parties may waive a waiting period if they agree to a no-fault divorce. The 2017 tax law did not impact the consideration of fault in alimony.


Alimony Deduction with the Prior Law

The change came from how the payments were treated as taxable income. Under the prior law, alimony, maintenance or spousal support (however it is described in your state) was deducted from the income of the higher-earning spouse and treated as the taxable income of the receiving spouse. By shifting the taxes to the person with the lower tax obligation, the couple paid fewer taxes overall. Our attorneys at Derr & Villarreal have helped couples divorcing couples find an agreed-upon amount of alimony where there was significant disparity in income so that as a couple, they paid less tax.

Here is an example of how it works. Bill is a sales manager who makes $320,000 and Amy is a librarian. They’ve been married for 32 years and have no children. Under the old law, if Bill paid Amy $5,000 per month in alimony, he could deduct $60,000 annually from his $320,000 annual income leaving adjusted gross income of $260,000. His federal tax would be approximately $62,000. If he didn’t deduct it, his federal tax would have been approximately $82,000, which is $20,000 federal tax savings! If Amy included the alimony in her income, her tax would be $15,000. If she didn’t include the alimony, her tax would be $2,000.

If Bill saves $20,000 and Amy pays an additional $13,000, Bill and Amy together save $7,000 in federal taxes that are never paid by either of them as shown in this table:


SpouseFederal Taxes paid if Bill Deducts AlimonyFederal Taxes paid if Bill does not Deduct AlimonyTaxes Saved
Amy$15,000  $2,000      -$13,000
Taxes saved by deducting alimony       +$7,000


Alimony with the Tax Deduction Eliminated

But under the new law, the government will receive more money from divorcing couples because alimony will no longer be deductible for parties who signed settlement agreements after January 1, 2019. In this new scenario, Bill could pay Amy $5,000 per month but without being able to deduct it, his total federal tax remains at $82,000. (This does not take into effect other tax changes in 2018 such as the elimination of the personal exemption or doubling of the standard deduction.)


The good news is that couples with significant earnings disparity who have decided to divorce can take advantage of the fact that all agreements signed before January 1, 2019 will allow the payer to deduct payments to the recipient.


How is child support determined and is it required?

In Texas a large number, mostly all, family law cases will involve child support. This article is meant to aid in the understanding of how child support is calculated and determined in a general since. Other factors can contribute to the outcome of a specific case such as a family violence finding, disabled child(ren) or even custom access and possession agreements that call for irregular or no child support. Child support and medical support can be ordered by a judge as part of a: divorce case, custody case (called a Suit Affecting the Parent-Child Relationship), paternity case, family violence case or modification case (if there is already a court order pertaining to the child). If you need a family violence protective order call the National Domestic Violence 24 Hour Hotline at 1-800-799-SAFE (7233). They can refer you to help in your community.

Child support is money that the non-primary parent pays to help with the cost of raising a child, such as the cost of food, housing, clothing, school supplies, daycare and activities. To expand, child support is to be paid to the person with whom the child lives the majority of the time; the primary parent or guardian, usually a parent, but not always. The primary or guardian who is entitled to child support is called the “obligee” or “custodial parent.” A parent ordered to pay child support is called the “obligor” or “non-custodial parent.” It is essential to remember that even if there is no court order, both parents are expected to financially support their child. Some non-primary parents have the misunderstanding that because they leave the home or end the relationship with the primary parent that they do not have to pay until an order is granted by the judge for them to do so. A non-primary parent who does not help support the child may be ordered to pay retroactive support to the primary parent.

If an unmarried father is already providing support, is it necessary to establish paternity? Yes. Even though the child’s father is providing support, he may become disabled, or even die. This way unmarried parents can ensure certain benefits for their children only if paternity has been established.

A common question is if the non-primary parent is entitled to visit the child if he or she is not paying child support? Yes, child support and visitation rights are separate issues. The primary parent must obey the court order for visitation, even if the non-primary parent cannot or will not pay child support. The court can enforce its orders against either parent via your attorney, like a child support or child custody lawyer Arlington TX turns to.


What if the non-primary parent gets behind in child support payments or refuses to pay?

If a non-primary parent does not pay child support, he or she is subject to enforcement measures to collect regular and back payments. The Child Support Division uses many ways to enforce child support orders, including: forcing employers to deduct court-ordered child support from the non-primary parent’s paycheck through a Income Withholding Order. They can hold federal income tax refund checks, lottery winnings, or other money that may be due from state or federal sources; file liens against their property and assets, suspending driver’s, professional, and hunting and fishing licenses; and file suit. A judge may sentence a nonpaying parent to jail and enter a judgment for past due child support.

What is medical support?

        Medical support is additional child support a parent is ordered to pay to cover the cost of health insurance for a child. A parent can be ordered to pay medical support by: providing health insurance coverage for the child, reimbursing the primary parent for the cost of health insurance coverage, or paying cash medical support to the Attorney General if the child receives Medicaid. Commonly, both parents are expected to pay 50% their child’s uninsured expenses. For example, if you are ordered to pay $500 per month child support and $150 per month medical support, then the total amount you are ordered to pay is $650 per month.


        Guideline’s for child support is slightly different if the non-primary parent has other children that are outside of the said case before the court. Net resources are determine using a table in the Texas Family Code and includes salary, commissions, overtime, bonuses, dividend income, lottery winnings, etc. There are caps and other considerations on child support amounts that may affect your amounts.

How child support is calculated

        Texas law sets the following general guidelines for calculating child support. Child support based on these guidelines is called “guideline child support.”

1 child = 20% of the non-custodial parent’s average monthly net resources

2 children = 25% of the non-custodial parent’s average monthly net resources

3 children = 30% of the non-custodial parent’s average monthly net resources

4 children = 35% of the non-custodial parent’s average monthly net resources

5 children = 40% of the non-custodial parent’s average monthly net resources

6 or more children = not less than 40% of the non-custodial parent’s average monthly net resources

        Can grandparents file for child support to establish support for their grandchild(ren)? The simple answer is yes. If the grandparent can provide proof that the child has been living with and under the supervision of the grandparent for at least a period of six months they can file for child support or a SAPCR. If a grandparent has been appointed the legal guardian of the grandchild and the grandparent needs help financially to support the grandchild, they may file. Also, if the grandparent is receiving government benefits such as TANF or Medicaid they may file.

        In addition, if the non-custodial parent is in jail or prison when the order is made and the non-primary parent does not have any income due to incarceration the law says the judge should not order child support but they are still responsible for arrears and accruing interest. When the non-primary parent gets out of jail or prison, either parent can file a modification case to ask that child support be ordered if their rights have not been terminated due to incarceration.

Thanks to our friends and contributors from Brandy Austin Law Firm, PLLC for their insight into child support.

5 Benefits of Hiring a Divorce Lawyer

Hiring a Divorce Lawyer

Family issues are sensitive and often result in heated arguments. This can largely be avoided by seeking legal help and expertise. Another advantage to seeking a neutral legal professional is that family law is complex. There are many reasons to work with a knowledgeable and experienced family lawyer such as the Divorce Lawyer Phoenix AZ locals trust. Here are five of the most common reasons why someone might hire a divorce lawyer: (more…)