Family Law | Whitten Legal

Child Support and Retirement Plans

Rollen Quicoy — Tue, 04 Feb 2025 09:05:37 +0000

On behalf of the Law Office of Greg Whitten on Tuesday, February 4, 2025.

Is this familiar? In your divorce or custody case, your Ex was ordered to pay for child support and is way behind but has a large 401(k) or other retirement plan providing your Ex with a comfortable living, nice vacations, a luxury car, etc.

Can the Court Order Child Support Paid Directly by Retirement Plan?

It’s true. A child support domestic relations order can be issued by the court, which orders a portion of the retirement plan (whether defined benefit, such as a traditional pension, or a defined contribution, such as a 401(k)) to be paid directly to you as the child support obligee. However, the retirement plan cannot be ordered to distribute funds pursuant to a domestic relations order before the date the owner/beneficiary of the plan would otherwise be eligible to withdraw funds.If this is your situation, please call us, and we will see if we can help.

What is a Guardian Ad Litem in Texas Family Court?

Rollen Quicoy — Tue, 04 Feb 2025 08:57:00 +0000

In CPS removal cases and some contested child custody cases, the judge may appoint a guardian ad litem to represent the child’s best interests (this is different than representing the child, which is what an attorney ad litem does). This person may be a volunteer from specific organizations, a professional with relevant licenses and training, an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child, or an attorney ad litem appointed to serve in the dual role in cases brought by a governmental entity (i.e., Child Protective Services).

What is the Authority of the Guardian Ad Litem?

The guardian ad litem will investigate to the extent she believes necessary to determine the child’s best interests and obtain and review copies of the child’s relevant medical, psychological, and school records.

She will also interview:

The child
Each person with significant knowledge of the child’s history and condition, such as educators, child welfare service providers, and foster parents
All the parties to the lawsuit

Through this work, she will try to determine and consider the child’s expressed objections, opinions, concerns, and any other task as directed by the judge.

What Court Actions Can the Guardian Ad Litem Perform?

The guardian ad litem will receive all papers filed in the case and all hearings. She will attend the hearings and (in certain cases) can call and cross-examine witnesses. Suppose there is a question about the child’s removal and/or placement. In that case, she will be consulted about her opinions and evaluate whether child welfare service providers protect the child’s best interests. She can also be expected to attend meetings related to the child’s service plan, etc.

The guardian ad litem can also testify and submit a report regarding her recommendations on the best interests of the child and the basis for those recommendations. This is a major difference between what the guardian ad litem can do in court and what an amicus attorney and/or an attorney ad litem can do.

Most cases involving a guardian ad litem are child welfare cases brought by child protective services, as opposed to divorce or custody modification cases brought by the mother, father, or non-parent conservator.

Who Pays the Fee for the Guardian Ad Litem?

If it is a removal case filed by CPS, typically, the county will pay the fees of the guardian ad litem. However, if appointed in a case brought by one parent directly against the other parent, the Court will typically order the parties to pay the guardian ad litem’s fees.

Small Business and Divorce

Rollen Quicoy — Tue, 04 Feb 2025 08:55:03 +0000

On behalf of the Law Office of Greg Whitten on Tuesday, February 4, 2025.

If you are going through (or anticipating) a divorce, what happens to a business owned by one or the other of you? What about the money in the business bank accounts? The furniture and fixtures? The ownership interests?The answers to these questions and more are critical so that you can plan and we can creatively solve potential problems in the divorce. While there is enough information to write a book, here are some of the first questions:

What Type of Business is it? LLC, Chapter C, Sub-Chapter S, D/B/A, General Partnership, Other

Was it formed before or during the marriage?
Who owns the shares/member interests, and in what percentages?
Has any ownership interest been given or assigned to anyone (including the spouse), and did that occur before or during the marriage?
Would the business still be viable if the spouse operating it ended his / her involvement?
How much money would be left over if the business was shut down, assets liquidated, and all debts paid off?
Are there personal guarantees of any business debts or contracts?

The answers to these initial questions will determine whether the business is the separate property of one or both spouses or community property. This is important because the court can only divide/award community property and can only confirm ownership of separate property.It is also essential to know that if the business is a legal entity, neither spouse owns anything “in” the business: not the accounts, receivables, equipment, furniture, etc. Rather, it is the business that owns these items. Accordingly, the court cannot award any of the business’s money or property to either spouse. However, if the business is community property, the court can award all or part of the ownership of the business to either / both spouses.

The liquidation value and value as a going concern (irrespective of either spouse’s ongoing involvement) is essential, as the business may not be worth anything to one spouse (or anyone else). Still, it may provide the livelihood of the spouse operating the business.

When we have a divorce with a business, we will explore these and more questions to be able to strategize for your best outcome.

Is Trump Changing Tax Rules So that the Parent Paying Child Support Gets the Tax Benefits / Deductions?

Rollen Quicoy — Wed, 29 Jan 2025 09:12:17 +0000

On behalf of the Law Office of Greg Whitten on Wednesday, January 29, 2025.

A rumor exploded on social media that Trump said (some say already signed an Executive Order) that women who receive child support would no longer be able to claim the child as a dependent on their taxes and would not receive a federal child tax credit.

One post I saw says this:

“Trump just tweeted, if you put your baby father on child support, you can’t claim income taxes. . . .. If he paying child support, you can’t claim the kids, only he can.”

Did Trump say this? No. Trump did not say, tweet, or sign an Executive Order as to this. However, the rumors pose other questions, such as: Could the President do this?

Yes, it could happen. However, whether it could happen is a very low bar since almost everything falls in the could happen universe.

Who can “claim” the children on your tax return is a matter of IRS Rules and Regulations, so for this to happen would require a radical change in existing IRS Rules / Regulations. The IRS is part of the Executive Branch and the President is the Chief Executive. However, the process to change Rules / Regulations is lengthy (and includes public notice and comment periods).

What is the Likelihood of this Happening? – To quote my father when I asked him long ago what were my chances of getting a raise in my allowance. His response? Slim to none. That is the same answer here: slim to none. This is simply not something to worry about.

Parental Alienation and Family Court

Rollen Quicoy — Thu, 16 Jan 2025 09:21:58 +0000

On behalf of the Law Office of Greg Whitten on Thursday, January 16, 2025.

In many of our cases we see children “weaponized” against the other parent by the use of psychologically abusive and/or controlling conduct and communications. The common term for this is “Parental Alienation.” However, this term is incredibly overused in family courts.

If this describes your situation, I encourage you to not use this term. It is not a diagnosis but a description and/or conclusion of abusive and controlling conduct, behavior, and communications to turn children away from the other parent. It is a form of psychological abuse.

A judge does not make a finding of “parental alienation.” Instead, in determining what is in the “best interest of the child,” the judge can make a finding of abuse or neglect in order to award one parent “Sole Managing Conservatorship” and/or to put limitations on a parent’s rights of possession and access.

The key to convincing a judge that this abuse or neglect has occurred is first to not say “parental alienation.” Instead, focus your efforts on gathering and presenting the evidence of the abusive and controlling behavior, manufactured events, improper communications, etc. to show that it arises to abuse or neglect.

Believing These Custody Myths Can Harm Your Case

Rollen Quicoy — Wed, 10 Oct 2018 09:42:53 +0000

On behalf of the Law Office of Greg Whitten on Wednesday, October 10, 2018.

Navigating a Texas divorce can be hard, especially when it involves minor children. When it comes to child custody and support, the law encourages parents to prioritize the children’s well-being and to work to come up with an optimal arrangement.

Many people harbor misconceptions about the way custody works in Texas. Acting upon them can actively damage a case and lead to an outcome that benefits neither parents or children.

1. Informal agreements work as well as a court order.

People sometimes think that if the divorce is amicable, they can work out major issues such as custody on their own. Although collaborative solutions can yield many benefits and Texas law encourages them, it is important to stay within a formal legal framework. Parents need to draw up a written agreement and submit it to the judge for approval. This also holds true for a subsequent custody modification: Even if the parents agree on what changes to make, they still need to formally submit them to the court.

2. Mothers get custody automatically.

Although there was, indeed, a time when the law presumed young children were better off with their mothers, this is no longer the current approach. Instead, Texas courts begin deliberating custody matters from the point of view that it is in the children’s best interest to have their parents participate equally in all aspects of childrearing. Of course, in a particular case, circumstances might dictate a different approach, so each determination stems from a review of relevant factors.

3. It is appropriate to withhold support or visitation to punish the other parent.

Contrary to a popular misconception, visitation and child support are separate issues. One parent cannot penalize the other for nonpayment by withholding scheduled visitation. Conversely, if one parent fails to comply with the visitation schedule, the other cannot start withholding support payments. In either case, the proper recourse would be to file a motion with the court and ask it to enforce the parenting plan or the support order.

Splitting A 401(k) In A Divorce

Rollen Quicoy — Thu, 09 Aug 2018 09:47:07 +0000

On behalf of the Law Office of Greg Whitten on Thursday, August 9, 2018.

Divorce becomes complicated the more assets a couple shares. While most couples will focus on the division of property and child custody, there is one issue many people tend to overlook: the 401(k).

A 401(k) is marital property. The spouses contribute to it and similarly to buying a home together, it becomes open for division in the event of a divorce. Dividing a 401(k) can become messy, so it is important to prepare adequately and have an attorney assist you throughout the process.

A Three-Step Process

There are three steps to divide a retirement account. First, the initial divorce decrees must explicitly order the division. Next, you and your lawyer will need to create an additional legal document known as a qualified domestic relations order (QDRO). You will need to provide this document to the administrator of the retirement account, and the document must contain details about how to divide it so that it remains in compliance with the Employee Retirement Income Security Act.

From here, the judge will need to approve and sign the order. At the end of it all, the former spouse will receive the designation of “alternate payee,” which means that he or she can receive payments from the account.

Distributing the Funds

There are several different ways a former spouse can receive payments through the account. The spouse can take money as a cash payment right off the bat or elect to receive proceeds into his or her own retirement account. Additionally, it is possible to leave the 401(k) intact until the person who owns it retires, at which point payments can come through.

Working Out An Independent Agreement

It is possible for two divorcing spouses to reach an agreement on their own for various retirement accounts. However, it would work to both parties’ best interests to still consult with a financial advisor and attorney to ensure everyone receives a fair share.