We just wanted to take this opportunity to congratulate our Paralegal, Sarah Gipson, on being named (along with her husband) as the ”Big Couple of the Year” for the 2013 Big Brothers Big Sisters Lone Star Excellence Awards. Sarah and her husband have really done an amazing job with this organization, and are so passionate about their work with their assigned little brother. This is a wonderful organization, and we are so glad that one of our staff is so actively involved. Way to go, Sarah!
We are currently in a series on Military Divorces in Retirement. In our first blog post, we discussed how VA Disability benefits are unique in the context of a divorce. Yesterday, we looked at how military retirement pay is handled in divorce cases. Today, we’ll look at several other unique issues involving divorces involving retired military members.
While every Final Divorce Decree is unique, in the context of military divorces, they must have very specific language to protect both parties and ensure that the military can meet its obligations to both the servicemember and his/her ex-spouse.
First, the Decree must recite a brief statement about jurisdiction. While the court must, under state law, have proper jurisdiction over both parties, in the context of military divorces, the court must also satisfy federal rules regarding jurisdiction (at least insofar as the court is attempting to divide military benefits).
Second, the Decree must include several key findings regarding the servicemember’s benefits. The Decree should state specifically that the servicemember’s VA Disability Benefits are confirmed as his/her separate property. Likewise, the Decree should include a finding that the parties were married for more than 10 years during which the servicemember served 10 years of military service (if the court is purporting to divide the servicemember’s military retired pay).
Third, in the portion of the Decree dealing with division of property, the document will need to state the ex-spouse’s award of military retirement pay using specific language relating to the percentage awarded or the formula used to compute the award amount.
While these requirements may seem onerous, fortunately, this website from the Defense Finance and Accounting Service provides excellent guidance and sample language regarding this requirements. While a trained lawyer will still be needed to draft these provisions correctly into the Decree, fortunately, the DFAS provides strong guidance on how to make sure these Decrees can fully qualify.
As you can see, dealing with military benefits in divorce cases can be quite challenging. Thus, it is vital for all parties to have experienced Family Law Attorneys who have knowledge about these issues.
If you need representation in your military divorce, give our Family Law Attorneys a call at 214-236-2712.
In our last blog post, we began a series covering issues in military divorces. Our first post looked at VA Disability Benefits in the context of divorce. We discussed the unique nature of VA Disability Benefits, which are considered the separate property of the servicemember (and thus are not divisible by the court). However, we also noted that these benefits can be considered by the court when making a determination on child support or spousal support.
Today, we’ll discuss military retirement benefits, which are very similar to a pension plan from a private employer. These benefits typically provide a set amount of money per month that is paid to the retired servicemember based on their years of service, rank, and a number of other factors.
In contrast to VA Disability Benefits, Military Retirement Pay is considered community property income. This means that it can be divided by the court. This is an important distinction between these two types of benefits, and many people incorrectly assume that both VA Disability Benefits and Military Retirement Pay are both treated the same.
While Military Retirement Pay may be divided between the spouses by the court, it is important to note that there are restrictions on how this can be paid to the non-servicemember spouse. While the military can and does take alimony and child support directly out of a retired servicemember’s monthly retirement benefit, when the division of military retirement pay is a part of the overall property division, the military can only pay the ex-spouse directly where the servicemember was married for 10 years during which time he/she performed at least 10 years of service “creditable towards retirement eligibility.” In such cases, if the ex-spouse is awarded, for instance, 50% of the retired pay, the military is allowed to take that 50% out each month and pay it directly to the ex-spouse. However, in cases where the marriage did not last at least 10 years during which the servicemember performed at least 10 years of military service, the military cannot, by law, take that money directly out of the servicemember’s monthly retirement check. While the court can still order the servicemember to personally pay his ex-spouse 50% of the check once he/she receives it each month, the military by law cannot simply pay the ex-spouse directly.
Obviously, this creates confusion in many cases, as this benefit is an important asset in many divorces. As with all military issues in a divorce, it is important to consult an experienced attorney who can help guide you through this process.
If you have questions about this topic or any other legal topic, please give us a call at 214-236-2712.
Earlier this week, the Senate voted on a landmark bill that would alter decades of settled law about the internet and sales taxes. In the bill, Congress would require that all online retailers (excluding small businesses with less than $1 million in out-of-state online sales) to collect sales taxes on all of their sales.
As many opponents of the bill note, this would place a heavy burden on small to mid-sized businesses, who would suddenly have to collect sales taxes in almost every state of the nation (each of which has different rates and exemptions). The reporting, collection, and remittance of such sales taxes would place a heavy burden on these smaller retailers, and give larger retailers such as Amazon, Walmart, and Target more of a competitive advantage.
This article provides a good overview of the bill, with a great map showing the Winners and Losers from this bill. Likewise, as it notes:
A 1992 Supreme Court case ruled that states could only require businesses to collect sales tax if the business had a physical presence in the state, such as a store or warehouse. Out-of-state retailers — back then the likes of catalogs more than websites — did not have to collect sales tax because it was deemed too difficult for them to abide by so many different tax jurisdictions and rules.
Now that online shopping has grown into a $226 billion-a-year business, and software makes collecting online sales tax across states easier, proponents of the Marketplace Fairness Act say requiring online businesses to comply with the same rules as bricks-and-mortar businesses is long overdue. The act would also require states to simplify their tax codes and provide retailers the software to assist in tax collection at no charge… States argue they’re missing out on much-needed revenue. Last year, states could have collected more than $11 billion in online sales tax revenue, according to a study by the University of Tennessee.
Of course, the bill still has to pass the House of Representatives, but it looks like it has a good chance of passage.
What do you think about this bill? Would it stifle growth at a time when our economy seems to just be getting back on track? Or, would it provide states with much-needed revenue?
On this Friday, I just wanted to share a brief, heartwarming story about some of the students at Dallas Baptist University who went out of their way last month to help teenagers from West, Texas, after the devastating fertilizer plant explosion in that town. As this article notes:
On Friday, April 26, a busload of 54 junior high and high school students from West, Texas, traveled to the Dallas Baptist University campus in southeast Dallas for a Disciple Now (DNow) weekend of spiritual renewal, small group interaction, recreational games, and an outpouring of love from college students.
“It was a great opportunity to bring the students away from all that was happening in West and provide a weekend to have fun and remind them that through it all, God is there beside them,” said Chase Thomson, a DBU junior from Albuquerque, New Mexico.
The DNow was originally going to be held at the First Baptist Church of West, with DBU students coming to serve as leaders for the weekend through the University’s Encounter ministry. The fertilizer plant explosion that occurred in West on Wednesday, April 17, devastated the entire community and soon prevented the church from being able to host the event for area students. When the Associate Pastor and Youth Minister from First Baptist West, Phil Immicke, called DBU to share that they would not be able to host the youth discipleship weekend, DBU President Dr. Gary Cook prayed about how the University could reach out and help. He soon called the associate pastor back and told him if they were willing, DBU would like to host the weekend on the DBU campus instead.
Read more about this great outpouring of love here.
While divorces are always emotional cases involving many issues (including children, property, debts, spousal support, child support, and more), divorces involving retired members of the Armed Services can be even more complex than the traditional divorce case. This is because of the special nature of retired veterans and their families. First, in addition to having to comply with state laws regarding the divorce, any divorce that deals with retired military members must also deal with federal statutes such as the Servicemembers Civil Relief Act (SCRA) and the Uniformed Services Former Spouses’ Protection Act (USFSPA). Since these federal statutes preempt even settled state law regarding divorces, it can be quite complex to negotiate the intricacies of this area.
With that in mind, we wanted to draft a series of blog posts to help explain some of the basics of dealing with divorces involving one or more retired military members. This series will only cover retired members of the military, since issues involving active-duty military members are even more complex.
One of the key areas that makes military divorces so difficult is the issue of military benefits. Having a retirement pension, life insurance, and other benefits is certainly not unusual; most companies offer such benefits, and many individuals in the United States have such common benefits. But military benefits, while similar in some ways to civilian benefits, are also quite different in many ways.
So, in this first post, we’ll cover one of the most important benefits available to veterans: VA Disability Benefits.
According to the Veterans Administration Website, VA Benefits are defined as follows:
Disability compensation is a monthly tax-free benefit paid to Veterans who are at least 10% disabled because of injuries or diseases that were incurred in or aggravated during active duty, active duty for training, or inactive duty training. A disability can apply to physical conditions, such as a chronic knee condition, as well as a mental health conditions, such as post-traumatic stress disorder (PTSD).
These benefits can provide a wonderful benefits to veterans who have faithfully served our country and been disabled in some way. However, in the divorce context, there are quite a few misunderstandings about such benefits.
First, VA Benefits are considered the Separate Property of the retired servicemember. In states like Texas, which operate on a Community Property system, all income that is gained by either spouse during the marriage is presumed to be community property (and thus divisible by the Court in divorce proceedings). Thus, in many cases, the non-servicemember spouse think s that VA Benefits will be divisible between the parties. However, in the case of VA Disability Benefits, federal law clearly states that such benefits overcome the community property presumption, and should therefore be treated as the sole Separate Property of the servicemember. This means that the court has no authority to award the non-servicemember spouse any portion of the servicemembers VA Disability Benefits.
However, this does not mean that VA Disability Benefits are irrelevant in the context of a divorce. While these benefits cannot be divided by the court, they are considered when determining child support and spousal support. Thus, when the court looks at the retired servicemember’s income in order to determine the correct amount that the servicemember should pay in child support or spousal support, the court can consider VA Disability Benefits to be part of the income of the servicemember.
Because of these nuances, it is important to have a lawyer who understand military benefits who can help guide you through these particular issues. With that in mind, in our next blog post, we’ll look at some of the other nuances regarding military benefits in divorce.
If you have questions about this issue or any other legal issue, please give us a call at 214-236-2712.
Richardson Estate Planning Lawyer – Family Limited Liability Companies – A Great Estate Planning Tool
When most people think of estate planning, they think of Wills, Trusts, and similar documents. But one form of estate planning that often is overlooked is the Family Limited Liability Company. In many instances, this tool can be a great way to help families manage property and transfer it to younger generations.
A Family LLC is fairly easy to set up. It is basically a company that holds property owned by family members. In exchange for donating those properties, the family members who donated them would receive stock in the Family LLC. This stock could then be slowly transferred to younger generations without having to split up the properties into tiny partitions. Likewise, the family can place restrictions on the sale of stock in this LLC, limited stock ownership only to members of the family.
For instance, let’s assume that Joe and Sally Smith own a ranch and three oil/gas interests on separate properties. They are in their retirement years, and want to eventually give these properties to their kids. However, only one of their three children really knows anything about ranching and dealing with oil/gas leases. In this case, forming a Family LLC could be a great estate planning tool. By creating a Family LLC, Joe and Sally can ensure that these properties will not be split into tiny partitions, which would decrease the value of the properties. Upon their death, they can give their children stock in the company rather than split up the properties. The children can still each own a 1/3 interest in the company, but the land (and mineral interests) would not have to be split. Likewise, since only one of their children knows how to manage the ranch and handle the negotiations with oil companies, the two other children can elect their sibling as the “manager” of the company to run the day-to-day operations. In this way, they will not have to worry about learning the ranching business or being taken advantage of by the negotiators at the oil companies. Likewise, by keeping their mineral interests together, they will have better bargaining power with the oil companies. When it comes time for the children to make their Wills, they can simply give away their stock in the company, ensuring that the properties are not split into small plots that would have little value.
As you can see, forming a Family LLC can be a great estate planning tool. Likewise, this can be a way to transfer property to your kids during your lifetime without having to partition the property and cause a disturbance in the management of the property. Likewise, you can ensure that property will stay in the family rather than being sold to third parties.
At Cook & Gore, our Estate Planning Attorneys can help you set up a Family LLC. Give us a call at 214-236-2712 if you have any questions.
Subway, the restaurant giant, was recently sued by customers who are unhappy with the fact that the chain’s famous “footlong” subs are not, in fact, 12 inches. These customers are claiming false advertising since the sandwiches do not always appear to be exactly a foot long. In fact, in most cases, they believe the sandwiches are only 11″ long–a full inch shorter than the advertised length.
But, as Subway notes, the length of the actual sandwich may vary after baking, kneading, rising, etc. So, while the sandwiches start out as being 12″, some of them may, in fact, shrink slightly in the baking process.
While this lawsuit may not get very far, it does provide a good lesson for business owners: be careful to always deliver on your promises. In this day of outsourcing, most business owners hire outside marketers or advertising groups to help them promote their business. Even small businesses typically have a professional marketing company create their brochures, website, and other promotional materials. But too many business owners fail to carefully consider the claims those 3rd party marketers are making in their printed ads/materials.
For instance, we represented a company a couple of years ago who didn’t realize they were falsely advertising. They had paid a 3rd party marketer to create a nice, glossy brochure which they used extensively. While most of the material in the brochure was spot on, I noticed that there was one claim that did not seem to be true. After looking at their facility, I questioned them whether the claim (which involved a particular selling point of their facility) was actually true. As they looked around their facility, they realized that the claim in their brochure was not, in fact, true. While they had always planned on making improvements to the facility, they had not yet upgraded it in a way that would make the claim in their brochure 100% true. We were able to fix this problem before anyone noticed, but it could have been a potential landmine.
So, let this be a warning: always check your own marketing materials. Make sure that your website, brochures, flyers, business cards, etc., convey the right message–not only one that is catchy and good for sales, but one that is also 100% true.
Note: As always, if you have any Business Law questions, feel free to give us a call at 214-236-2712. Our Richardson Business Lawyers can help provide sound legal advice for your business.
Well, the Second Inauguration of President Obama is fast approaching. While most Americans will likely watch the festivities on TV, for those that want to be there in person, there are hotels lining up to make that dream a reality. This article from BusinessInsider.com details some of the most outrageously expensive hotel packages available to the rich and famous who wish to attend the inauguration.
Here are some of my favorites:
- The Madison Hotel – $47,000 Inauguration Package (including a “social media butler” to chronicle your trip on twitter, facebook, instagram, et al.)
- The Willard Hotel – $49,800 (includes a stay in a Oval shaped suite patterned after the Oval Office)
- The W Hotel – $50,000 (includes a $100,000 jewelry loaner)
- The Ritz Carlton – $100,000 (includes a cupcake decoration party at Georgetown Cupcake)
- Morrison House – $200,000 (includes silk pajamas monogrammed with your initials and the inauguration date)
- Marriott – $2.7 Million (includes hotel accommodations for 300 of your closest friends and $800,000 worth of food and beverages)
Well, the article is certainly an interesting read. While I can’t imagine spending that type of cash on that type of “experience,” it must appeal to some people.
Have a good weekend, and enjoy watching the inauguration on Sunday.
Richardson Probate Lawyer – Taking Care of Grandma When She Can No Longer Take Care of Herself (Part III)
This week, we have been looking at how to help take care of an elderly relative when they can no longer care for themselves. In Part I and Part II of this series, we looked at several lesser-restrictive alternatives that can help families cope with making decisions on behalf of their incapacitated relatives.
But many times, those fall-back options are not available. In situations where no lesser-restrictive alternative exists, families may be forced to apply for a Guardianship over the elderly relative.
A Guardianship is simply a way for a court to assess whether an individual is incapacitated. The court will perform an investigation, have a hearing, and determine based on the evidence whether the elderly individual truly is unable to make decisions for themselves and/or care for themselves properly. If the court feels that the individual cannot perform these basic functions, the court will name a Guardian to make those decisions for the elderly individual. In so doing, the court actually takes away the rights of the elderly individual to make decisions on his/her own behalf, and instead gives the Guardian the right to make those decisions. Since the court is taking away these basic rights, it is a lengthy process to be able to have a Guardian named.
The process of applying for a Guardianship can be difficult, so you’ll want to make sure you have a lawyer who regularly helps clients in this area.
There are two types of Guardians which can be named: a Guardian of the Person, and a Guardian of the Estate.
Guardian of the Person
When an elderly individual cannot care for himself/herself properly or make their own medical decisions, the court will name a Guardian of the Person to make important decisions about where the elderly individual should live, who will care for that individual, and what types of medical treatments that elderly individual should receive. This power will allow the Guardian of the Person to hire an in-home caregiver, place the elderly individual in an appropriate residential facility (e.g. assisted living or nursing care facility), or bring the elderly individual to live with them. Likewise, this power will allow the Guardian of the Person to meet with the elderly individual’s doctors and make decisions on how to provide the best medical care possible.
Guardian of the Estate
When an elderly individual can no longer take reasonably take care of their finances, the court will name a Guardian of the Estate. This Guardian of the Estate will manage the elderly individual’s funds, use the elderly individual’s funds to pay bills on their behalf, and make financial decisions affecting the elderly individual. The Guardian of the Estate has to keep a strict accounting of everything that is done on behalf of the elderly individual to protect against fraud.
In many instances, the court may name one person as both a Guardian of the Person and Guardian of the Estate of an elderly individual. In this way, one single relative (or friend) can effectively take care of all of the major decisions for the elderly individual and provide for their care.
While getting a Guardian named by the court can be a difficult procedure, a good Probate Lawyer can help guide you through this process.
I hope this series has been helpful for you. If you have an elderly relative that may need help, give our lawyers a call at 214-236-2712 or click here for more information. We would be happy to meet with you and help you and your family develop a workable plan for how to provide adequate care for your aging loved one.