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September 11th | WHAT’S MINE AND WHAT’S YOURS? UNTANGLING THE KNOTS IN COMMUNITY PROPERTY
Community property issues can be a tangled mess when a couple is splitting up. Assets aren’t always clearly defined in a marriage. Under community property law, everything that’s acquired during the marriage is considered community property, unless you can prove that it’s a separate property. Texas happens to be one of the few states in the nation that has a community property law. Do experts have a crystal ball that can foretell your financial future after divorce? Not exactly, but we know of two folks that are very good at reading your cards. Rick is joined by Laura Dale from Laura Dale & Associates who helps you get a clearer picture of your estate, inventorying and protecting your assets, and identifying potential risks on the road to divorce. Also joining Rick is forensic accounting expert Bill Stuart, a financial detective of sorts who specializes in keeping you off that slippery slope by tracing and characterizing your assets so you can present a well-researched case – in other words, figuring out who gets what. [smart_track_player url=”//securemedia.iheart.com/media/station_content/676/2016/09/mp3/default/divorce_talk_radio_0_1473681975.mp3″ title=”WHAT’S MINE AND WHAT’S YOURS? UNTANGLING THE KNOTS IN COMMUNITY PROPERTY” artist=”September 11th | Rick M Goldberg” image=”https://www.rickmgoldberg.com/wp-content/uploads/2016/09/player_picture_rick.png” color=”#454545″ social=”true” social_twitter=”true” social_facebook=”true” social_gplus=”true” view=”mobile” social_email=”true” ]
Rick: Good morning everyone and welcome to Divorce Talk with Rick Goldberg. If you’re going through a divorce, you’ve been through a nasty one or if you’re struggling with an ex right now, you are more than likely in the right place. Our show is brought to you and sponsored by the law offices of Laura Dale & Associates. Laura Dale & Associates is clearly one of Houston’s premier law firms and they specialized in divorce of course, family law, international child custody issues and abductions. They have a bankruptcy section. They do appeals. They do it all.
And joining me today is the name partner of Laura Dale & Associates, Miss Laura Dale. What’s up, Laura?
Laura: Hey, Rick. How are you?
Rick: Good. Thanks for getting out of bed so early on Sunday morning and coming in to the studio. Really appreciate it.
Laura: Sure. Happy to be with you.
Rick: So as you can tell, we are in a different studio this morning. We are in the sacred studio of Mr. Michael Berry. One of these days, maybe I’ll see what he looks like and I’ll recognize him. But literally, I know he has the Redneck Country Club and I know he’s pretty popular on the radio but I don’t know that much more about him. Do you know much about him?
Laura: Well, I know he’s an attorney. I listen to him all the time on the radio so I’m in awe to be in his studio today. I’m sorry he’s not here.
Rick: What do you like about him the most?
Laura: He just has kind of upfront – he has no problem saying exactly what he thinks about just about any issue. So I’m pretty much on board with that.
Rick: And is he political in nature?
Laura: Very political. And I’m a very much of a, I would say, libertarian at heart so I probably subscribe to many of his positions.
Rick: Well, great. Well, Michael, thank you for letting us use your studio and may all of your success rub off on us and our little show here that Ken, I know you started – I think you started, Ramon told me you started at 13 years old with just a little radio show on real estate and is has just leveraged that in and does a nice job of taking it to where he’s done. So we’re grateful to be in his show – in his studio. But that’s not what we’re talking about this morning.
We’re talking about divorce and we’re talking in particular this morning about complex property cases. So say I came to you and I’ve got a lot of assets that I want to protect and I know I’m going to be getting divorce, what are some of the ways that you would like need to start getting to know me and what my estate looks like, Laura, before you would want to sort of I guess get into that engagement and move on in a divorce capacity?
Laura: Well, what we would be doing is taking an inventory of your assets. So even when we have clients that come in and property is going to be a significant issue, we have a lot of paperwork and forms as you might imagine that we like our clients to fill out to describe the property that they have, how they acquired it, when they acquired it. And we like to know any complex issues related to the property particularly if you have closely held businesses or some of kind of portfolios that may be a little bit more complicated. We’re going to have to know all the details.
Trust, we’ll be interested in any kind of trust, the underlying trust agreements, who are the guarantors, the guarantees, things like that that we need to look at when we’re going to determine under Texas law what is community property, what is separate property, and what we can protect.
Rick: Now, I know that you’re not a fortune teller. But how often do clients kind of expect you to give them a little bit of a crystal ball as to what they can expect?
Laura: Just about every time they could.
Rick: Every time.
Laura: We are asked to give an idea about where they think their risks are. And so, we do spend a lot of time covering a client’s assets, looking at them and trying to give them our best estimate about what the range of risk is related to protecting separate property assets or identifying community property assets or any kind of co-mingling issues.
So we do spend a lot of time trying to sort through that and figure out how to best serve our client and protect those assets.
Rick: Now, help our listeners understand exactly what’s mine and what’s yours.
Laura: Well, under Texas law, this is a community property state. This is one of the few states in the United States where they have community property laws. And so what that means is community property is everything that is acquired during the marriage after the date of marriage unless you can prove that it’s separate property. And the burden of proof is on you to prove something is separate property. And it can be separate property if you acquired it before marriage or during marriage by gift or because of a will by device or sometimes a certain personal entry awards are deemed to be separate property.
So there are circumstances where if I’m claiming separate property, I have the burden to prove to the court or the jury that this is my separate property because I had it before marriage or I received it as part of an estate and inherited it or it’s some part of a personal entry award or it could be a gift, an inter vivos gift. So my mom or dad gave me something during their lifetime.
Rick: That’s really interesting. And I guess you have to go out and engage with a CPA, forensic accountant to kind of help you with the tracing, I think is the word that is sort of commonly used through the industry as to determine what is separate and what’s community, is that right?
Laura: Yes. We rely on experts frequently to help us trace as you say the assets that belong to the various estates, separate property estate, community estate or some other estate. We do use experts and we have a fairly extensive set of rules that are used in trials in Texas to prove up, what we call prove up, the various claims of the various estates. So we do heavily rely on our experts to apply those tracing rules and to be able to characterize property as separate property or community property.
Rick: Now, if you’re just tuning, I’m Rick Goldberg and you’re listening to Divorce Talk Radio here at KPRC 950. Our show is brought to you today by Laura Dale & Associates. And if you can’t hear us live, you can download our podcast at KPRCRadio.com or you can go to my website actually at RickMGoldberg.com and download all of our past shows as well as transcripts from all of our shows. We’re here every Sunday morning of course at 8:00 AM.
And Laura, I’ve actually given a forensic expert, someone that you know and have worked with, I’ve worked with him for a long time, Bill Stuart. I’ve got Bill on the line with us to kind of offer another perspective to our listeners so they kind of have a feel for what the attorneys do but not necessarily what the forensic experts do. Bill works in family law typically in pretty complex property issues and he’s got experience on what we’ve talked about earlier, asset tracing.
Bill, I know you’re on the road but are you on the line with us?
Bill: Good morning, Rick. Yes, I am.
Rick: Hey, welcome to the show and Laura is here with us today. What type of cases, Bill, do you and – does Laura typically hire you for?
Bill: Well, normally, we have two phrases to tag this case, tracing and characterization cases where we determine if the community asset, if it’s the husband’s asset as a separate property or the wife’s asset as a separate property. And the other thing we do if this is valuation, a small closely held business, a lot of people have what we call [0:09:11] [Indiscernible] and they category all the value. And there are some very specific rules within the state of Texas where we – on how value businesses within the state of Texas.
Rick: Got you. So Laura, help kind of walk our listeners through it. They’ll come in. They’ll engage you for a case. And let’s just say there’s no kid issues, kids are already grown. And then maybe there’s a pretty sizable estate and your client feels like there’s a significant amount of separate property and he gives you his laundry list as to why.
I’ve got two questions for you. Number one, how do you sort of begin the engagement with your client and Bill? Number one. And then number two, if your client – if you feel like he is coming and manufacturing or even hiding assets, what do you do in a situation like that?
Laura: Well, let me get to your first question first. So if it’s a question of the man – the wife or the husband may have significant separate property assets, so what do we do? In the first preliminary part of the case, we are ferreting out all of those assets and trying to locate them, isolate them. And then you’re going to bet I’m going to be calling Bill Stuart or someone like Bill Stuart to help me characterize these assets and protect these assets. So I’m looking quickly to Bill or somebody like him to help.
Rick: Let’s hold right there, Laura. We’re going to step away and take a little break. And when we come back, we’ll pick back up with Laura Dale, Laura Dale & Associates, and Bill Stuart. We’re going to talk about some money. So stay with us. Don’t go away.
Rick: Welcome back everybody to Divorce Talk Radio with Rick Goldberg. I’m visiting with Attorney Laura Dale on our show this morning. We’re talking about money. We’re talking about property. And it’s interesting, speaking of money, that song that we just heard was written initially by Jackson Brown. And Jackson Browne was stuck on a lyric and he happened to live in an apartment below where Glenn Frey and Don Henley were living at the time back in the early ‘70s, maybe late ‘60s in Southern California. And so, he played that song for Glenn Frye and Glenn Frye came up with the line that sort of was the transition to the rest of the song and they split credits on it and they both recorded it.
Thanks Ramon for playing that song. But I’ve always loved that song and the story behind it.
Before we left, we were talking about engaging a new client who had some significant property issues. And we got by the way, Bill Stuart on the line with us too driving in from Austin this Sunday morning. And I think we were talking about how do you start that relationship out with your client and ultimately his forensic accountant? And then also I wanted to hear really from both of you what do you do when you discover that your own client might not be shooting so straight with you and maybe hiding some of the assets in inappropriate places?
So Laura, why don’t you begin? And Bill, you chime in when you can.
Laura: OK. So we were talking about how to begin and I told you about an inventory. We’re going to take an inventory and start and getting a feel for what the client’s assets are and when and how they were acquired. And once we get to a certain level of assets and a certain complexity and we understand that there has been potentially co-mingling or there are characterization issues, we’re going to call an expert like Bill Stuart to help us identity and trace out the different assets and the various estates. And also, Bill is going to be the one testifying about these assets. So he’s going to be or someone like him is going to be involved early on when we have these issues.
Now, when it comes to hiding things, if my client – if I believe my client is not shooting straight with me, of course I’m going to sit down and have a very upfront conversation with my client because what my client maybe doing by not making full disclosure is putting all of those assets at risk because if the client is hiding the assets and that becomes an issue in front of a court, the court’s remedy is to give all those assets possibly to the other party. So it’s a very, very severe penalty for failing to disclose assets. And particularly, knowingly perjuring yourself in front of a court. So that’s something not to do.
Rick: Have you experienced that before where the Judge is literally taken assets from one side of the 50-yard line and given them all to the other side?
Laura: Well, I have yes, absolutely seen that. I have never seen that happened to my client because obviously, I’m preparing my client long in advance and having very upfront discussions about what they can and cannot do with regard to preserving their state, making misrepresentations about your assets to the court is very serious business and not to be done.
Rick: Bill, you heard what Laura had to say. What can you add in to that?
Bill: Yeah. Well Rick, first, well, understand [0:18:53] [Indiscernible] will be on large property cases. There’s also going to be an expert on the other side and especially if the non-earning spouse or the non-moneyed spouse got an expert who is going to be doing an asset-in-charge of his own or her own. So if I’m on their side, first of all, I’m going to find stuff if you haven’t.
Number two, there’s an old saying in the courthouse, “If [0:19:19] [Indiscernible] the judge, he would not charge you [Indiscernible] for his courtroom.” What that means is that she will not take kindly to having you [Indiscernible] by leaving assets off.
And finally, what Laura had mentioned about awarding all assets to the one side, in a lot of cases, we put something in the decree or the [0:19:42] [Indiscernible] of this divorce called the treasure [Indiscernible]. And that is to the effect that if assets, undisclosed assets, are found after the divorce is final then all of those assets go to the party that found them and none of them go to the party that’s in charge. So what I want to say is there’s very, very severe penalty to hide assets.
Rick: There’s another old saying that tens don’t marry twos. Have you heard that old saying?
Bill: That’s likely.
Rick: And that Godzilla really wouldn’t be caught dead too many times with Tinkerbelle. So there’s a lot of – we should have a show down the road on interesting wives’ tales and sayings from the courthouse.
Bill, I’ve certainly been around this arena for quite a while and I say this comment in jest but obviously, what you do is a pretty extensive and extensive service. And so, what’s kind of the minimum size estate where someone with your skillset really needs to come in and do what you have to do?
Bill: Well, probably if you’re talking about tracing and characterization, I’d say you’re looking at a couple of hundred thousand dollars, because understand something, like Laura said there’s the community property estate. And let’s say, somebody comes to me and said, “Look, I’ve got $30,000 of my separate property that I had inherited during the marriage and if I don’t trace that out, I’m going to lose my $30,000.”
What I explain to the prospective client is that, “No, you’re not going to lose the $30,000. If it’s declared community, you’re going to get about $15,000 of it anyway. That’s community property awarded to you so your [0:21:36] [Indiscernible] is not $30,000 it’s $15,000.” So the question is what is it worth for you to chase that $15,000? And what we try to do because we have been around this rodeo for so many years is that we can get a pretty good handle upfront on what it’s going to cost to do this and we try to advice the client even though sometimes it’s kind of turning business away that it’s not worth it.
On the other side, if we quote them a big number, they’re going to say, “Oh my goodness! That’s expensive.” Well, and then I tell them, “I’m not going to lie. It’s like brain surgery. It’s expensive and it’s painful. And the only thing more expensive and more painful in doing it is not doing it.” So it ranges all over the board but what we try to do and what all the other experts, the good experts now try to do is to be cost effective in our work.
Rick: Well, how long have you been doing this kind of work, Bill?
Bill: Twenty-five years with an extensive experience in business as a CPA before that.
Rick: And so, what are like some of the top 3 or 4 reasons and then we’re going to go to a break after this that Laura would need or another attorney in town here would need to hire a forensic accountant like yourself?
Bill: Well, there are about four things. We can provide one-on-one on each thing. Number one is to identify the assets and liability. Number two is to characterize them as to whether they’re separate or community. Number three is to value them, what is the company business worth. And then four is a lot of times we are asked by the client, the attorney, the mediators, and also the judges to help in the division of the assets, who should get what and what do we feel on that. So we provide one-on-one on each thing before [0:23:31] [Indiscernible].
Rick: Got you. Well, if you’re just tuning in, you’re listening to Divorce Talk with Rick Goldberg. We’re talking about money issues and property. Our show today of course is brought to you by Laura Dale & Associates. When we come back after the break, we’re going to take a look at what this presentation, this forensic accounting presentation, might look like in court in front of a judge or in front of a jury, so don’t go away. We’re halfway through the show. We’ll be right back.
Rick: Good morning everybody and welcome back to Divorce Talk with Rick Goldberg. I’m visiting with Attorney Laura Dale with Laura Dale & Associates. She is our sponsor. We love Laura and all of her fine attorneys of her firm. Also with us this morning is Bill Stuart. Bill is a CPA, 25 years in the business of being a forensic accountant and expert.
And when we last left off, piano plays the suspense thrilling melody. When we last left off, we were talking about how do you make this presentation, this tracing presentation? How do you present it, Bill, to the judge or to the jury?
Bill: Well, what we do depends on the side, the steps and everything [0:28:30] [Indiscernible] last week. We have all of the dots, the underlying dots, we basically need them. They’re usually the [Indiscernible] which is also a file that we bring to the trial or the arbitration with it or mediation.
And then we have a set of schedules that we’ve done. Now sometimes they can run up to thousands of lines in Excel on tracing out to each one of the assets. Then we do a summary Excel schedule of what’s beginning and separate balanced ones, what the activity was, what the ending separate and community balance are in each [0:29:05] [Indiscernible].
And then we write a cover letter. It’s usually addressed to the attorney and explained what our findings are and what some of our suppositions are that we’ve made during the course of our work.
Rick: And then what, Laura?
Laura: Well, there’s an art to this as Bill well knows because what he really is doing, he is sitting in the witness stand testifying to a judge or a jury often on very complex issues and he’s being questioned by the lawyer, either me or an opposing counsel. And so, he’s trying to tell the story of what these assets are, where they went, how much they’re worth. And we have to do that within the rules, evidentiary rules and procedural rules of the court.
So while on the face, it may look like a simple task, it’s often a challenge to get this information in front of the judge or jury in a way that is easily understood so that we can convey the end result that we want. And so, it’s not that easy but when it’s successful and well-done, usually it’s very significant.
Rick: I want to remind our listeners that you’re at KPRC 950. And if you have a call and you’d like to talk to one of our guests or myself, you can call us at 713-212-5950. You can also drop us a text message at the same phone number and we’ll take your call.
And in fact, God, it’s funny. As I say that, two calls light up. With me on line 5 is Greg. Are you there?
Hey, Greg, thanks for listening to the show this morning. So do you have a question or something that you’ve been thinking about for one of our guests this morning?
Laura: That’s a great question. And what I would do is probably the moment that I realized after interviewing the client or viewing that the client has provided that I’m going to need someone to testify about a tracing issue or a valuation issue is when I’m going to tell my staff, “Contact Bill Stuart and have him saddled up as the expert on our case.”
So, I do that early on as soon as I recognized that there are going to be issues where I’m going to need an expert testify on tracing or valuation.
Rick: And Bill, when do you think is a good time to come in?
Bill: Well, one of the things that this calls for the attorney because all cases for instance in the Harris County has to be mediated. So the question is do you spend all this money on a forensic accountant before you mediate? And that’s a very delicate issue but the attorney does at times. But the problem is mediation is usually very close to trial.
So unfortunately, not Laura, but other attorneys will call us 20 or 30 days before trial and say, “Well, we didn’t mediate,” too casually, “can you do all this tracing for us?” And we have to say, “No, we’re sorry. We can’t do that in 20 or 30 days.” First of all, a lot of these reports of under state law have to be filed 30, 60, 90 days before trial starts. So like Laura said, the minute you get an inkling that this is probably going to need something, get us on board then.
Rick: And before I go to Greg, second question Bill, how long does it typically take to do a full scale tracing analysis?
Bill: Without any updates and everything, depending on the length of the marriage and the complexity and everything, probably 30 to 60 days.
Rick: That’s such a – do you see how he answered that like such a good expert? He gave me like three caveats just to see kind of little CYA and then he answered it.
Laura: You can see how shrink my shoulders when you asked that question because I don’t know that I – that’s a difficult question.
Rick: It’s a good thing I can’t say the BS word on this show, Bill, because that would just be inappropriate. So it takes – and what’s the longest you’ve ever worked on a tracing analysis?
Bill: We get some, going back over a 30-year marriage that we probably have taken upwards of a yearlong mainly because of trying to get all the documents in place.
Rick: And what if you just can’t find old bank records and the documents, then what do you do? Are you pretty much SOL or do you have a plan B?
Bill: Well first, [0:34:14] [Indiscernible] of a legality. But we have a burden as appraisers to doing it by declaring [Indiscernible] evidence. That’s a very hard bargain. If we don’t have all the documents, we may be able to work around it with tax returns. We may be able to do it with testimony of other party saying, “Yes, I did give that $30,000 as a gift.” There are several different ways but none of them are as good as the documents themselves.
Laura: I agree. It’s a very scary prospect to have to put on your evidence without all the underlying records. And the first thing that I will be telling my client is be sure you can’t find these records because it may make a difference between winning or losing these issues. It’s much better and much safer course of action to have all the records and people who are contemplating divorce should already start gathering those types of records that keep them in a safe place and don’t destroy them because you’re going to need them to prove of your separate property assets.
Rick: Greg, did you have another question?
Greg: I did. One of the questions I get asked a lot, “My spouse only shows very low income on those returns.” And being a CPA, tax returns can be deceiving based on different circumstances. Bill, how would you analyze the tax returns and perhaps identifying the amount of child support or alimony one should pay?
Rick: Before we answer that question, Greg, we’re going to take a short break so we’ll catch that on the other side. Why don’t you hang on if you wouldn’t mind unless you got to get somewhere? You’re listening to Divorce Talk Radio here at KPRC 950. This is Rick Goldberg. Stick with us. We’re going to come back to our final segment. We’re going to answer this question and then talk about a little something they call reconstitution and reimbursement. So don’t go away.
Rick: Welcome back everyone to the final segment of Divorce Talk with Rick Goldberg. In the studio with me today is Laura Dale, the name partner of Laura Dale & Associates, really one of Houston’s top family law firms specializing in divorce, family law, international child custody issues, abductions, you name it. Her and her firm, they have the capacity to handle it for you. Also with me on the line is a forensic accountant and specialist, Bill Stuart.
And where we left off, we had a caller, Greg, who was talking about how do you find while you’re looking at people’s – while you’re looking at your client’s spouse’s tax returns, how do you find everything in there that really is in there? In other words, do they ever hide assets? And how do you go about uncovering that? Did regurgitate that question right, Greg?
Greg: Absolutely. I mean how do you find the true income or the cash flow?
Laura: So what I think you’re asking about is what happens if I look at the opposing party’s tax return and I’m trying to calculate child support for my client and oh my gosh, it looks like his or she is earning $15,000 a year but they live in a $600,000 house, they drive a nice car, they have a vacation home, et cetera, et cetera?
So like the IRS, we can impute income. And so, we can start for example, with a deposition asking this individual how much they spend on their utility bills, their car payment, gasoline, food, mortgage payment, vacation, all of these things to try and establish what their cash flow is because obviously, something is terribly wrong without looking at their tax return. And you can imagine that this kind of issue happens very often.
As a matter of fact, in the Texas Family Law Code and in the case law, we can and the courts can look at intentional underemployment or unemployment when it comes to determining child support, spouse’s support, and other things like that.
So we have a way of imputing income much like the IRS just by questioning the individual about how much money they spent.
Bill: Well, that’s not even other reporting. I’m involved with [0:43:08] [Indiscernible] court case on child support. One of the guys was reporting a relatively small number but it turned out that his company was paying for everything. It was paying for his travel. It was paying for his car.
Bill: So the income that the reported was not merely what he had available to him.
Laura: Right. So you can impute income to him in order to determine what his child support or spouse’s support or whatever support is being paid should actually be.
Rick: Thanks Laura.
Greg: Right. I appreciate it.
Rick: Yeah, Greg. Thanks for calling in. I really appreciate the question. Keep listening to the show and have an amazing rest of the day.
Greg: Well, thank you guys for the help. Appreciate it.
Rick: You got it. Laura and Bill, there are a couple of terms that I know people ask me about from time to time, reimbursement and what does that mean and then another term called reconstitution. Can you talk about that a little bit and how that impacts you and your divorce?
Laura: OK. So reconstitution is the concept where we identify part of the – or substantial part of the community estate that appears to be missing. And so, when somebody has spent money on a boyfriend or a girlfriend or paramour, we can calculate those funds that have been spent and we reconstitute the community estate and add back in those missing funds.
Sometimes a reconstitution claim can be bought when somebody is sending money for example to another country, to a foreign bank account, you can reconstitute the community estate by tracing all those funds and we would absolutely use Bill Stuart of some forensic accountant like Bill to reconstitute the community estate for the purpose of reimbursing the community estate.
Rick: So those two words really go hand in hand.
Laura: They do. The reconstitution of the community estate is putting back all the money into the pie so that we can understand the size of the pie that needs to be divided but for the wrongful behavior of the other party. And then a reimbursement is a little bit different concept but you would be reimbursing one estate from another estate. So they do kind of work hand in hand but they’re different concepts.
Rick: We have a little bit of time left. Certainly, one way to avoid spending a ton of money in Bill’s services, not that I want to take any money out of your pocket, Bill, but to avoid spending a lot of money in that area and going through all of the misery and chaos of the litigation of trying to find assets and whatnot is to try and take care of all this up on the front end.
So Laura, maybe you can talk to our listeners a little bit about what they might know of as prenuptial agreements also known as partition and separation agreements. But if you take care of all this contractually on the front end, you could potentially save hundreds of thousands of dollars later during litigation if for some reason your marriage doesn’t work out.
Laura: Sometimes millions of dollars.
Rick: Millions of dollars.
Laura: We do prenuptial agreements often. And basically, you’re using these agreements to change the effect of Texas law on the community and separate property estates so you can use a prenuptial agreement in order to prevent the accumulation or the creation of a community property estate and so that all assets remain separate assets. You can use a prenuptial agreement to mitigate risk if one party is going to be going in business and wants to mitigate the possibility of claims against the community estate. You can use the prenuptial agreement.
There are kinds of things that you can do with it. And in the same – and for the same reasons, you can use postnuptial agreements. So these are agreements that are entered into after marriage and are immediately effective to partition or divide the estate for a whole host of reasons. Sometimes it’s to clarify property issues related to community and separate property estates. Sometimes it’s for again, mitigation of risks related to activities or one of the other’s behaviors.
Sometimes it’s related to tax planning. I’ve seen clients now who have – who moved to a foreign country even though the parties stay married, they don’t want the worldwide taxing authority of the United States to be after their assets so they may use this partition agreement to separate the estates for tax purposes. There are just a whole host of reasons to use these agreements these days.
Bill: Rick, let me interject something on that.
Bill: The problem on that is that Laura has had her contemporary who will draw the thing brilliant a prenuptial or postnuptial or partition agreement and I will guarantee you of the ones that I’ve looked at, after they are drawn, half to two thirds of them are not followed after they’re drawn. So it makes them – it rendered them absolutely worthless.
So you got to do two things on those kinds of agreements. Number one, you got to draw them properly. But number two so you don’t have [0:48:58] [Indiscernible] like me come along. But I – you got to follow the term because if you don’t, you might be [Indiscernible].
Laura: Well, and that’s a very interesting point that Bill brings up. As often as we draft these agreements for our clients, very often, we are hired in order to figure out what to do after someone has entered into one of these agreements drafted by another lawyer. They’ll bring it to us and they are contemplating divorce or some other action and they want to know now what, how do we figure this out?
So we do a great deal of work just like Bill said trying to figure out what exactly the prenup or the postnup means. And oftentimes, we’re going to have to use a forensic to help us trace assets even when there’s a prenup so I do absolutely agree with Bill. Once you enter into these agreements, you need to follow them. Separate your assets. Make sure that you’re sweeping community income into separate property accounts. Whatever they call for, you need to follow it because it’s going to make your life a lot simpler if unfortunately there is a divorce or something like that.
Rick: Bill, do you have any final little cherry to add to that?
Bill: No. A lot of cases, thereby I think the non-earning spouse, usually the wife or sometimes the husband wants to break the prenup not necessarily. Sometimes you want to make sure that the prenup is enforced because they happen to influence the pick-up a year and that means the trust that made you paid all the bills direct instead of putting the money [0:50: 37] [Indiscernible], you want to go back and say, “Nope! You need to put the money in yourself now.” So it takes [Indiscernible] either you may want to break the prenup or you may want to enforce it.
Laura: And I may add on that note that it is extremely difficult to break a prenup in the state of Texas or a postup that courts, the trial courts and the appellate courts tend to strongly favor prenuptial enforcement and postnup enforcement. So enter into these agreements with caution because they’re likely to be appealed.
Rick: Well, I want to really thank both of you for coming on the show today. Bill, drive home safely the rest of the way. Laura, as always, I really appreciate your insight and knowledge of the law as I’m sure our listeners do. You know what I always tell people is that you get what you pay for in the world of divorce. And so, it really is important to hire an attorney who you feel comfortable with, who you’re confident in and someone who is going to really tell you the real deal because this is not where you need someone just to go along with the way you may want to do it.
So, thanks again everyone for listening to the show. Have a great rest of Sunday. Listen to us next week, same time, same place, KPRC 950 Divorce Talk Radio. Have a great day.
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