A Power of Attorney is a document in which the client (the principal) authorizes an agent (otherwise known as an attorney-in-fact) to act on his or her behalf. The power may be quite limited: for example, permitting the agent only to make deposits to the principal’s bank account. The power can also be broad, authorizing the agent to engage in nearly any transaction that the principal could.
A Power of Attorney is also limited in its duration. It can be expressly limited in time. For example, the agent may be given a power of attorney that terminates when a specific act is completed. Even if no duration is specified, a conventional — or common-law — power of attorney becomes inoperative upon the incapacity of the principal. To extend the power beyond the incapacity of the principal, the power must be made expressly durable.
A Durable Power of Attorney takes effect immediately when the document is executed even though it may not be needed until much later, if ever. Some individuals, however, are reluctant to grant an agent broad powers to act at a time when the principal is capable of acting.
These people would prefer to use a “springing” durable power of attorney. Recognized in many states, a springing power lies dormant and ineffective until a designated time, such as the principal’s incapacity.
A Durable Power of Attorney should be used whenever an individual feels he or she will need someone to make important financial and/or personal decisions after the individual loses capacity. Most individuals will have assets or personal affairs that must be managed should they lose capacity.
If the individual has a complex estate plan, the durable power is essential. A wealthy individual who has begun his or her estate plan by making lifetime gifts or charitable donations will need someone to have the power to continue making such gifts or donations after the donor loses capacity. It would often be devastating to the individual’s estate plan if the gifts could no longer be made.
For example, suppose the individual makes regular contributions to an irrevocable life insurance trust. A durable power must be in effect for the premiums to be paid from the principal’s funds after the principal loses capacity.
Otherwise, the principal’s family might have to pay the premiums from their own funds for the rest of the principal’s life. This, of course, would be counterproductive to the principal’s estate plan.
All states authorize the health care power of attorney, also known as an Advanced Healthcare Directive. This durable power permits the agent to make health care decisions for the principal if the principal loses capacity. Many individuals prefer the health care power of attorney to a living will; some use the health care power in conjunction with a living will.
One of the primary uses of a durable power is the delegation to an agent of the management and control of the principal’s financial affairs during his or her incapacity. The following is a sample of the types of property management powers that might be considered for a power of attorney:
To make deposits and withdrawals from bank accounts
To sign tax returns and appoint qualified individuals to represent the principal with the IRS to make investment decisions
To deal with retirement plans, including IRAs
To have access to the principal’s safe-deposit box
To create a living trust and fund a previously created living trust to revoke or change beneficiary designations
To vote the principal’s stock
to forgive or collect the principal’s debts
To enter into contracts on behalf of the principal to make gifts on behalf of the principal
To disclaim gifts or bequests made to the principal
To deal with life insurance on the life of the principal
The basic requirements in most states are that you be above the age of 18, be of sound mind and intend to make a disposition of your property. Your will should be in writing and witnessed by two persons who are not named in the instrument, over the age of 16.
In limited circumstances an oral (also called “nuncupative”) will is valid. It can only be used to dispose of personal property. Most states require the nuncupative will to be made at the deceased’s home during the last sickness.
What is a joint and mutual will?
A joint and mutual will is a contract (one will) between two spouses that they will dispose of their property in a specific way. This will is used by married couples who have children by a prior marriage who want to assure their children share in their estate should they predecease the other spouse. It prevents the surviving spouse from making a new will and depriving the children of the deceased spouse from their inheritance.
Can I prepare a will in another state?
Absolutely. If you are traveling on business or vacation and want to prepare a will you simply need to have it witnessed in another state the same as if you were preparing it at home.
If you do prepare your will outside your domicile, make sure you have it notarized. Although a notarized will is not necessary to make it valid, it is necessary to make it a self-proven will. This means if it becomes necessary to probate your will you will not have to call the witnesses to court to testify about your mental state when you prepared your will. If these witnesses live in a foreign state it creates additional problems and expense for your executor or administrator to bring them to court.
Does a will protect me if I become disabled?
No. A will only becomes effective upon your death. To protect you when you become disabled you must use both our Advanced Healthcare Directive and general power of attorney.
Can I make specific bequests of property?
Yes. In your will you simply decide to whom you want to leave your property. Our wills contain an “enabling clause” that incorporates any written memorandum you may subsequently make regarding the disposition of specific property. This keeps you from having to redo your will every few years as you acquire new things and get rid of the old. When preparing a will it is important that you have this paragraph included so that you are not locked in on specific items that will soon change. For more complete protection, you might want to compare the benefits of a Will versus a Trust.
I have adult children from a prior marriage and minor children from my current marriage. Do I need a trust?
You will still need a trust for your minor children. However, the trusts in our wills only provide for a trust if at the time of your death you have minor children. If you leave property equally to four children and two are minors, only two trusts would be created under the will.
You can decide when the trust terminates and at what age your minor children receive their inheritance.
I want to be cremated. Does your will provide for that?
Yes. We will request this information from you during your phone consultation..
I have loaned money to my children and some have not paid me back. Can I make them pay me back before they get their inheritance?
Our wills contain an optional clause that allows you to elect that your child pay your estate before he or she receives any bequests under the will. By exercising this option you are alerting your administrator that your advances to your child were loans and not gifts. The indebtedness should be evidenced by a promissory note.
It is a good idea for you to have your child sign a note evidencing the amount in case of a dispute later with your estate administrator as to the amount. You can make the note payable upon your death if you do not intend to force your child to repay you earlier. We have promissory notes available, ask us about them during your free consultation.
Do I have to have my will witnessed?
Yes. Since these wills are printed and not wholly written in the handwriting of the testator, they must be witnessed. Witnesses attest to your intent to make a will and your mental capacity when making a will, including lack of duress. Mental incapacity includes insanity as well as inebriation. Anyone eighteen years or older may be a witness. All states require two witnesses, except Vermont, which requires three. A beneficiary under the will is disqualified from being a witness for obvious reasons.
Do I have to have my will notarized?
No. A notarized will only makes it self-proven. This means if it becomes necessary to probate your will you will not have to call the witnesses to court to testify about your mental state when you prepared your will. If your will is not notarized, your executor or administrator will have to call one or more of the witnesses to court to testify about your mental state when you prepared your will. All of our wills provide spaces for notary acknowledgements for your convenience.
Where can I find a notary?
All banks provide notary services for their customers. You can also find good witnesses there. Notaries are also listed in the yellow pages. Most insurance agents have notaries working in their office. You can find good witnesses there as well. You can search on the web for a notary.
After my will has been signed, witnessed and notarized, what do I do with it?
You have several options. Some states, such as Colorado, have a statute which allows you to deposit your will with any court for safekeeping. Others, such as Texas, provide for the depositing of your will with the county clerk for safekeeping. None of these statutes is a prerequisite to a valid will, they exist only for your convenience.
Prior to 1987, a common estate planning technique was an “estate freeze,” by which a parent would transfer appreciating assets to a child, while retaining an income interest in those assets and, usually, other preferential rights the parent never intended to exercise. Because of the retained income interest and preferential rights, the value of the transferred assets for gift tax purposes was less than their fair market value. Moreover, since the potential appreciation in the assets would be transferred to the child, the interest retained by the parent would be “frozen” for estate tax purposes.
Chapter 14 of the Internal Revenue Code is designed to eliminate estate freezes by restricting the valuation of the interest retained by the parent for gift tax purposes. Unless that retained interest satisfies certain requirements, it is deemed to have a value of zero, with the result that the entire fair market value of the property transferred is used in calculating the federal gift tax.
An Exception for Qualified Personal Residence Trusts
One remaining estate freeze opportunity is a “qualified personal residence trust” (QPRT).
A Qualified Personal Residence Trust is powerful gifting tool that allows a client to leverage his or her estate and gift tax credit and to freeze an appreciating asset at its current value.
We have prepared a summary of the benefits and features of a Qualified Personal Residence Trust in question and answer format.
1. What is a Qualified Personal Residence Trust?
A Qualified Personal Residence Trust or “QPRT” is an irrevocable trust that holds a personal residence for a term of years. At the end of the trust term, the residence is distributed to the beneficiaries named in the trust – typically children. For example, John creates a QPRT and transfers his residence to the QPRT for a term of 12 years, with the remainder passing to his children. John has the right to live in the residence and to use the residence for the next 12 years. At the end of the 12-year term, the residence passes to John’s children.
2. Are There Any Tax Benefits Associated With A QPRT?
There are several tax and economic benefits associated with a QPRT. QPRTs are especially well suited at leveraging a client’s estate and gift tax credit.
A transfer of property to a QPRT is currently treated as a taxable gift. The value of the gift is based on the present value of the remainder beneficiary’s right to receive the property at the end of the QPRT term. For example, John, age 65, creates a QPRT and transfers his residence to the Trust for a term of 12 years, with the remainder passing to his children at the end of the 12-year term. Assuming the residence is valued at $1,000,000 and the transfer is made in April, based on IRS tables, John is treated as having made a gift to his children valued at $346,060. This is the first place where there is a significant tax savings. John has effectively transferred an asset worth $1,000,000 to his children by using only $346,060 of his estate and gift tax credit (currently valued at $675,000).
3. Are There Any Other Tax Benefits Offered By A QPRT?
Another tax and economic benefit is that all of the future appreciation of the residence will be transferred to the children estate and gift tax-free. A QPRT, as a result, is a powerful estate freezing tool. Based on the prior example, assuming that the $1,000,000 residence appreciates at 4% per year for the 12-year term, the residence will be valued at $1,601,032. All of the appreciation during the 12-year term inures to the benefit of the children. Therefore, by making a gift, valued for estate and gift tax purposes at $346,060, John will effectively transfer an asset worth $1,601,032. Assuming John’s estate is in the 55% estate tax bracket, this produces an estate tax savings of $690,235.
4. Is a Gift Tax Return Required When a Gift is Made to a QPRT?
Yes. A Federal Gift Tax Return, Form 709, must be filed in the year in which the gift to the QPRT is made. Based on the foregoing example, John is required to prepare and file a Federal Gift Tax Return, Form 709, reporting the gift which will consume $346,060 of his estate and gift tax credit. Depending on John’s prior taxable gifts, gift tax may or may not be due.
5. Does A Gift To A QPRT Qualify For The $10,000 Gift Tax Annual Exclusion?
No. A gift to a QPRT is a gift of a future interest and does not qualify for the $10,000 gift tax annual exclusion. Only gifts of a present interest qualify for the $10,000 gift tax annual exclusion.
6. How Does My Age and The QPRT Term Affect The Tax Consequences Of The QPRT?
The term of the QPRT is an important factor in determining the tax consequences of a QPRT. As the QPRT term grows longer, the gift to the remainder beneficiaries grows smaller, and the tax savings is greatly improved. The table below shows the tax results and savings for a $1,000,000 residence transferred to a QPRT, in April, for varying terms:
QPRT for Client Age 65, $1,000,000 Residence,
April Transfer, 4% Annual Appreciation, 55% Estate Tax Bracket
Future Value at End of Term
7. What If I Die During the Term Of the QPRT?
If you die during the term of the QPRT, the residence is included in your estate at its full fair market value at the time of year death. The benefit of the transaction is lost, but you are no worse off than if you did not create a QPRT, other than transactional costs in establishing the QPRT. For example, Mary, age 50, creates a QPRT with a 15 year term and transfers her $1,000,000 house to the QPRT. Mary dies 14 years and 11 months later when the residence is valued at $1,800,944. The value of the residence is included in Mary’s estate at $1,800,944. However, she does receive a credit for the initial gift to the QPRT.
8. How Is the Term Of The QPRT Determined?
The term is selected by the client/donor. Because of the negative tax consequences of dying before the expiration of the QPRT term, we will typically review the actuarial tables and life expectancy of the client and use approximately 2/3 of the client’s life expectancy. For example, an average individual age 65 has a life expectancy of 17.2 years. As a result, we will use a QPRT term of no greater than 12 years. Obviously, we discuss any known health problems and family history with the client and may make adjustments to the QPRT term, as appropriate, based on those discussions.
9. What If I Outlive the Term Of The QPRT and Want To Continue Living In The Residence?
If you outlive the term of the QPRT, the residence passes to the remainder beneficiaries. They are the owners of the property. You can, however, lease the property back from the remainder beneficiaries at a fair market value rent. The obligation to rent your residence back from your children can be viewed, by some, as a negative feature; however, many clients view it as an opportunity to transfer additional assets, via rent payments, to their children. IRS Private Letter Rulings have sanctioned QPRTs which included mandatory fair market lease provisions at the end of the QPRT term.
10. Can I Place My Vacation Home in a QPRT?
Yes. You are allowed to transfer your principal personal residence and one vacation home to a Qualified Personal Residence Trust. You are allowed to have only one principal residence, but you can have two personal residences (one of which is your principal residence).
11. Can I Create Multiple QPRTs?
Yes. If you own two personal residences, you can transfer each residence to a QPRT. In addition, you can transfer fractional interests in your personal residence to multiple QPRTs. This can be used to hedge against the possibility of a premature death. For example, Steve creates four QPRTs with terms of 4, 8, 12, and 16 years. Steve transfers a 25% interest in his residence to each of the QPRTs. If Steve dies after 14 years, only the 25% interest in the last QPRT (with the 16 year term) is included in his estate.
12. Is It Possible To Take Advantage Of Valuation Discounts With A QPRT?
Yes. It is not uncommon for a husband and wife to own their property jointly or as tenants by the entirety with the right of survivorship. In this case, we will divide the property into two 50% tenant in common interests. Each spouse will create a QPRT and will transfer his or her 50% interest to the QPRT. The Court have consistently upheld valuation discounts for fractional interests in real estate and it is not uncommon to receive discounts of 20% or more. Under these facts, each of the 50% interests valued at $500,000 would be discounted to $400,000 and would produce an even better tax result. The chart below compares the tax savings of the transfer of 2 50% interests with a 100% interest.
12 Year QPRT for Husband and Wife Both Age 65, $1,000,000 Residence,
April Transfer, 4% Annual Appreciation, 55% Estate Tax Bracket,
20% Valuation Discount for Fractional Interest
Initial Value of Asset
Future Value at End of Term
Two 50% interests each valued at $500,000 and discounted by 20%. 2 x ($500,000 x (1 – 20%)) = $800,000
13. I have an Estate-Type Residence, Comprising of the Main Residence, a Guest Cottage, and Several Outbuildings on 35 Acres. Can I Transfer all of the Properties into a QPRT?
Maybe. Only a personal residence can be transferred to a QPRT. The additional land and buildings may not qualify as a QPRT. The IRS has ruled in several Private Letter Rulings that estate-type residences and the attendant outbuildings, guest cottages, and acreage may qualify as a personal residence. The rationale is that a person who purchases an estate type residence normally expects to have the attendant acreage, outbuildings, etc. and, thus, gave these favorable rulings. Each property should be determined on a case by case basis.
14. My Residence Has A Mortgage. What Are The Tax Consequences Of Transferring The Residence, Subject To The Mortgage, To A QPRT?
Ideally, property contributed to a QPRT should not be subject to a mortgage. We recommend that our clients pay off the mortgage before transferring the residence to the QPRT.
If property subject to a mortgage is transferred to a QPRT, there are two possible tax treatments. First, the transfer may be treated as a net gift of the difference between the fair market value of the property and the amount of the debt. For example, if a residence, valued at $500,000 is encumbered with a $150,000 mortgage, the value of the underlying property gifted to the QPRT is only $350,000. The gift tax consequences are based on a value of $350,000. However, each time a mortgage payment is made and a portion of the principal loan balance is reduced, the client is treated as having made an additional gift to the QPRT. This can create an accounting, tax, and administrative nightmare.
Another approach is to include a provision in the QPRT Trust Agreement in which the client/donor agrees to indemnify the Trustee of the QPRT for any liability associated with the mortgage. Arguably, only the value of the underlying residence should be taken into consideration, the value of the mortgage is excluded, and additional payments on the mortgage are not taken into consideration.
15. How Are Real Estate Taxes, Hazard Insurance Premiums, Repairs, And Capital Improvements Paid While The Residence Is In The QPRT?
Ordinary and recurring expense associated with the residence, such as real estate taxes, hazard insurance premiums, and minor repairs may be paid by the client/donor. The client can deposit the funds necessary to pay these amounts with the Trustee. The Trustee is permitted in a QPRT to retain sufficient funds to pay these amounts. A QPRT is treated as a grantor trust for income tax purposes and, thus, the client/donor can deduct the real estate taxes paid on his or her personal income tax return.
In the event a capital improvement is made to the residence by the client/donor, this will be treated as an additional gift to the QPRT and the amount of the gift will be based on the value of the capital improvements and the remaining term of the Trust.
16. Can The Residence Be Sold While It Is In The QPRT?
Yes. The residence can be sold and the proceeds can be reinvested in a new residence. Since a QPRT is a grantor trust, any gain recognized on the sale of a principal residence should qualify for the $250,000/$500,000 exclusion of gain from the sale of a principal residence, provided all of the other Code § 121 requirements are met. The exclusion of gain does not apply to the sale of a personal residence that is not a principal residence, such as a vacation home.
If the proceeds of sale are not reinvested in a personal residence, the QPRT will convert to a Grantor Retained Annuity Trust or “GRAT” and will pay an annuity to the client/donor for the balance of the QPRT term. GRATs are discussed below.
17. What Happens If The Property Ceases To Be Used As A Personal Residence?
If the property ceases to be used a personal residence, the trust ceases to be a QPRT and the Trustee must convert the QPRT to a GRAT. GRATs are discussed below.
18. What Is A GRAT?
A GRAT is a Grantor Retained Annuity Trust. It provides for the payment of an annuity for a fixed term with the balance passing to the remainder beneficiaries at the end of the term. If a QPRT converts to a GRAT, it will pay a fixed annuity amount to the client/donor for the balance of the Trust term and will distribute the balance to the remainder beneficiaries. The amount of the annuity must be based, at a minimum, on the Code § 7520 rate in effect in the month the QPRT ceases to be a QPRT.
For example, Paul, age 50, transferred a personal residence worth $1,000,000 to a QPRT in a month in which the Code § 7520 rate was 8.4%. The trust instrument provided that Paul retained the right to use the residence for a 10-year period or until his death if death occurs before the expiration of the 10-year period. The approximate value of Paul’s retained interest was $591,650. Five years later, the personal residence is sold for $1,500,000 and Paul’s interest is converted to a qualified annuity interest in a GRAT. Under the formula contained in the regulations, the annuity payable to Paul must be $92,726 annually. The annuity amount is computed by dividing $591,650 (the lesser of Paul’s retained interest or the value on the conversion date) by 6.3806 (the annuity factor at 8.4% for the shorter of 10 years or the life of a person age 50).
19. I Purchased My Residence Many Years Ago And Have A Very Low Basis. Will My Children Receive The Residence With The Same Basis At The End Of The QPRT Term?
Yes. Gifts made during lifetime are subject to a carryover basis. Therefore, the basis of the residence in your hands will be the same in the hands of your children when they receive the residence at the expiration of the QPRT.
20. Can I Purchase the Residence From The QPRT During The Trust Term?
No. Several years ago, the IRS issued regulations which prohibit the client/donor or their spouse from purchasing the residence from the QPRT. The benefit of this type of transaction is that
(i) it avoids the loss of the step up in basis, and
(ii) the client is not required to rent the residence from his or her
Before the issuance of the regulations, a client/donor could purchase the residence back from the QPRT shortly before the expiration of the QPRT term for its then full fair market value. As a result, the remainder beneficiaries would receive cash equal to the purchase price paid and the client/donor would receive the residence back in his or her own name. The QPRT Regulations now require that the trust instrument specifically prohibit a donor or their spouse from re-acquiring the residence.
21. Is There Any Way To Take Advantage Of The $250,000/$500,000 Exclusion Of Gain From The Sale Of A Principal Residence And To Provide A Step-Up In Basis To The Remainder Beneficiaries?
It is possible to structure a sale shortly before the expiration of the QPRT term to give the remainder beneficiaries a step-up in basis.
Shortly before the expiration of the QPRT term, the remainder beneficiaries should purchase the residence from the QPRT at its full fair market value for a 10% cash down payment and a promissory note for the balance. As a result of the purchase, they will own the residence with a basis equal to its full fair market value. When the QPRT terminates, the remainder beneficiaries will receive the cash and the promissory notes back and the notes will be extinguished.
The tax consequences to the donor/grantor are such that, assuming
(i) the gain recognized on the sale of the property is less than
(ii) the residence being sold is the donor/client’s principal residence,
(iii) all other applicable requirements for the Code § 121 exclusion of
gain requirements are met, the donor/client will be able to exclude
up to $250,00/$500,000 of gain in connection with this sale.
22. Who Should Serve As The Trustee Of The QPRT?
The client/donor may serve as the Trustee of the QPRT during the trust term. This generally keeps administrative costs and burdens to a minimum. If the trust will continue after the expiration of the trust term, in order to avoid any estate tax traps under Code §§ 2036 or 238, the client/donor should not serve as the Trustee.
23. Do Any Income Tax Returns Have To Be Filed In Connection With A QPRT?
A QPRT is typically considered a Grantor Trust for income tax purposes. Most QPRTs do not generate any income and an income tax return is not typically required. If the property generates income, a Grantor Trust Tax Return, Form 1041, may be required.
24. Requirements for a Qualified Personal Residence Trust
The following is a brief summary of some of the more critical requirements of the QPRT regulations:
Personal Residence: Only a “personal residence” may be transferred to a QPRT. A residence qualifies if it either is the parent’s principal residence or is used primarily for residential purposes (such as a vacation home). The residence may be rented to other parties, so long as the parent uses the residence for the greater of 14 days or 10% of the number of days the residence is rented.
Length of the Parent’s Term Interest: The length of the parent’s term interest in the trust is not limited by the regulations and, of course, the longer the term interest, the lower the value of the child’s remainder interest (and hence the lower the gift tax). As a practical matter, however, the term interest should be kept well short of the parent’s life expectancy, since if the parent dies before the termination of the term interest, the full value of the residence would be included in the parent’s estate for estate tax purposes (thus defeating the entire purpose of the trust).
Lease of Residence after Term Interest: The QPRT may give the parent the right to lease the residence after the parent’s term interest ends, so long as the rent paid is a “fair market value” rent. In this way, the parent may continue to live in the house as long as desired. Moreover, since the child’s marginal income tax bracket is likely to be lower than the parent’s marginal estate tax bracket, the payment of rent by the parent is a means of transferring wealth to the child at a lower tax cost.
Our family law practice involves contested and uncontested divorces, child custody and visitation, parenting plans and modifications, child support and modifications, spousal maintenance, and division of property.
The firm is dedicated to pursuing alternatives to litigation such as mediation, negotiation or collaborative means. After exhausting all efforts to resolve the case peacefully and with fairness and dignity litigation will be recommended as an option. Litigation in court is costly from the financial and emotional perspective. In some cases, certain family matters can only be resolved through litigation.
Child custody and support are often the most disputed, complicated, and controversial component in divorce negotiations as they affect both emotions and money. Unfortunately, children are sometimes used as a bargaining chip and bartering tool that their well-being gets lost in the game of tug-of-war. When a child’s best interests are at stake, seeking peaceful co-parenting solutions will positively affect a child for the rest of his or her life. An attorney can assist a client through the maze of the laws during the most stressful time of the relationship. The growth and development of children continue even though the relationship ends.
Other aspects of divorce includes, among others, division of property which is also complex and dynamic. An attorney can help a client through the maze of the laws and disclosure devices which may affect the client’s financial rights, obligations, and the division of property. For instance, an attorney can help a client conduct financial disclosure to determine how and when the specific property and all other assets were acquired before agreeing to a property settlement or before asking the court to divide property.
An attorney can also assist a client transform all of the emotions associated with the ending of a relationship like sadness, fear, and anger into positive energy to manage the divorce effectively. When you are close to filing for divorce, you should consult an attorney to learn the laws that may affect your rights. The final results of a divorce may have a dramatic impact on your life.
For legal help with your particular situation, call our office to schedule a consultation.
Aggressive Representation in Family Law Matters
When you are considering filing for divorce or if you have been served with a divorce complaint, there are many questions to be answered. Who will have custody of your minor children and how will that be determined? If you are not granted physical custody, how often will you see your children? How can you be certain that the child support order is fair? Will the court award alimony or spousal support? You want a lawyer who fully understands family law, who will help identify your options and who will aggressively advocate to protect your rights.
At our law office we represent clients in all matters related to or arising out of divorce, including child custody, visitation and support. In 15 years of practice, We have handled hundreds of civil trials, honing herr oral advocacy skills and establishing a reputation for top-notch legal representation. Contact our offices to set up a free 30-minute consultation.
All family law matters that involve children apply the same standard: The court will attempt to determine and protect the best interests of the child.
Child Custody and Visitation
As a general rule, the courts separate physical custody from legal custody. If you are granted physical custody, the child will live with you. If you are granted legal custody or joint legal custody, you will have the right to make decisions about the child’s health, education and welfare. The courts customarily grant sole physical custody to one parent, but joint legal custody to both parents.
When considering visitation or parenting arrangements, the courts will examine factors such as the distance between the parents’ homes, the social, educational and health needs of the children and, as the children grow older, their preferences.
At our office, we will work closely with you to help you establish custody and visitation arrangements that serve the best interests of your child while protecting your rights as a parent. We know from experience that one parent may occasionally use custody and visitation disputes as a way of punishing the other parent. We will act quickly to protect your rights and the best interests of your children.
The amount of child support is determined by state guidelines, factoring in the incomes of both parents and the amount of time each parent spends with the children. We will help you ensure that the calculation accurately accounts for all income and that irregular income, such as seasonal or commission income, is properly considered.
Spousal Support or Alimony
When determining whether to grant temporary or permanent spousal support or alimony, the court will consider a number of factors, including:
The length of the marriage
The respective incomes of the parties
The ability of both parties to maintain their lifestyle
We will work with you to determine whether alimony is appropriate and, if so, the amount, frequency and duration of payments.
For experienced representation in custody, visitation and support disputes, contact us. We offer a free 30-minute consultation to every new client. We offer flexible hours, with evening and weekend appointments upon request.
Employment disputes most often involve a wrongful termination of an employee and/or discrimination by an employer based upon such factors as age, race, gender, disability, national origin or pregnancy. See examples of cases in which we have been involved.
Whether you are an employer or an employee, it is important to have a basic understanding of employment law regarding termination of employment. The following is a basic understanding of employment law. However, if you believe you will be involved in employment litigation, please contact an attorney immediately to advise you of your rights and responsibilities under Texas law.
Texas is an employment “at will” state. This doctrine is simply that in absence of a specific statute or written agreement, an employee hired for an indefinite period of time can be terminated or can terminate his own employment, without cause or without notice.
However, this principle has been eroded by specific exceptions:
For example, if an employer has made a representation to the employee that he or she will not be terminated unless there is reasonable cause for termination
Or, an employer has made a commitment to the employees in an employee manual or a policy statement that the employer will follow the termination procedures prior to termination, the employer cannot terminate the employee “at will”.
In these instances, the employer must follow through with any promises made to the employee before termination.
There are other exceptions that may apply to your situation. Because of the many various circumstances, which may arise in an employee-employer relationship, you should contact an attorney immediately if you believe that you may be involved in employment litigation.
Federal law prohibit an employer from terminating an employee on the basis of age, race, gender, religion, disability or national origin. If you are discharged and you believe that your discharge was based due to discrimination, contact an attorney immediately.
There are very important time limits on discrimination claims.
If you believe that you have been the subject of discrimination in your employment based upon handicap, race, creed, color, sex, age, national origin or ancestry, it is important to contact an attorney immediately.