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mmdesq, Family Law Attorney
Category: Family Law
Satisfied Customers: 518
Experience:  Attorney with 13 years experience.
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I am presently going through a divorce. My wife had a Trust,

Customer Question

I am presently going through a divorce. My wife had a Trust, of which I had no claim to. My issue is that early in our marriage, she says that we had deposited $15,000.00 into my retirement accounts and she wants it back. Of course, we wouldn't have deposited the full amount since our limit was $2,500.00 for the year. Yes, I have no doubt that some of the Trust funds were deposited into my accounts, but although I'm not exactly sure how much may have been deposited or what years this was done, I know it wasn't $15,000.00. She has no idea as to when this may have taken place either and has even changed her mind three times as to when it did. Having said all of that, if by chance she can prove that funds from her Trust were directly deposited into my retirement accounts, have I got any recourse whatsoever? Does it help at all that I paid taxes on her oil royalties, of which I have no legal claim to, for over 35 years? Does it help me that she also benefited from the tax breaks that we got from the IRAs? If proven, would she be entitled to full amount disclosed? If they discover these funds she wants to take it out of my share of the sale of the house, all of which I would like to keep, share of the house that is. She made the big money and I'm presently living off of my Teacher's retirement. Also, would the fact that I'm 62 yrs old, only have a part-time job, have been trying to get a full time job with no success, have had two back surgeries, two knee replacements, a hip replacement, surgeries in both shoulders and presently have hip and leg pain as a result of an overlapping vertebra, be a good bargaining tool. I have difficulty standing, walking or even sitting for long periods of time. I have difficulty lifting even 50 lbs. due to my back and knees and because they were unable to repair my left rotator cuff, I can only lift a few pounds above my shoulders. If any of this plays into my favor, I'm not intending to use it for anything more than to try and keep as much of my half of the house sale. I hope you've got some good advice because my lawyer keeps sliding around these questions and doesn't seem all that fired up about helping me.
Submitted: 1 year ago.
Category: Family Law
Expert:  mmdesq replied 1 year ago.

Good Morning,

I will try to best answer your questions.

When dividing assets in a divorce proceeding the court generally considers the needs and income of the parties as the two most important factors. Health issues and age are the third most important. Hence, appsolutely you need to raise all of your medical issues, age and earning capacity as justification for the distribution you are seeking.

In regards ***** ***** from wifes trust, even if she can prove a contribution was made it would have been a gift to the marital estate from which she should only be entitled to halfback. Even though her trust is not an asset of the marital estates, it is still a separate asset that she has available to her that should be considered in making the distribution and determine each parties reasonable needs. Especially considering that marital funds were utilized to pay tax consequences from the existence of the trust. She should not be entitled to having it both ways. Ie you get to pay for expenses of a trust but no benefit from the same.

It would do you a lot of service to do discovery and get a full and complete evaluation of her trust. Even though it is probably not marital property, it is a separate asset that should be taken into consideration when the court makes the distribution award. Besides, this will be her soft spot. This is where you need to poke with discovery as I'm sure she does not want you or your turning snooping and meddling in her trust. I would advise thoroughly investigating the trust if it has not already been done in combination with negotiation/ mediation. I'm assuming you obtained all of the trust documentation to make sure she is not engaged in any conduct that would violate the trust or otherwise make it susceptible to the marital estate.

If you do not have confidence in your attorney you should discontinuelook her service and hire one you actually trust.

I hope this information is helpful and I wish you the best of luck.