The Law Office of Kurt H King

April 20, 2012

Does the ex-Spouse get the Ford Retirement?

Filed under: Divorce,Family Law,Litigation,Paternity,Uncategorized — kurthking @ 4:53 am
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Fact-set:  Ford worker dies soon after a contested Missouri divorce.  His Ford retirement benefits include money in the TESPHE savings plan and a group life insurance benefit.  During the divorce the Ford worker changed the beneficiary on the life insurance without the wife’s consent.  The beneficiary on the TESPHE never changed and the ex-spouse is still the named beneficiary.  What happens?

Like many states, Missouri law includes a statute that provides that upon divorce, the ex-spouse loses all rights as a named beneficiary of property owned by the other spouse.  See VAMS 461.051.1.  But while this law may bar the ex-spouse as beneficiary on an IRA (an example of a non-ERISA asset), a Ford worker’s retirement includes (1) the TESPHE savings plan, and/or (2) a pension plan–both of which are governed by federal law known as ERISA (Employee Retirement Income Security Act), as later modified by the REA (Retirement Equity Act).  ERISA preempts/overrides state law on matters sufficiently related to ERISA–including Missouri’s section 461.051.1.  See Egelhoff v. Egelhoff, 532 U.S. 141 (2001).

Note that the group life insurance provided by the employer is a welfare plan–not a retirement plan and thus not governed by ERISA or REA federal law.

Key questions:  (1) can the Ford worker validly change (before the divorce is final) the beneficiary on the life insurance benefit without the spouse’s consent?; and (2) is the ex-spouse entitled to the balance in the TESPHE savings plan since the ex-spouse remains the named beneficiary–even though the divorce judgment awarded all the retirement to the ex-husband/employee?

Generally, Missouri law and ERISA’s 29 U.S.C. section 1055 seems to allow change of beneficiary of LIFE INSURANCE during the marriage without the spouse’s consent.   So the Ford employee’s change of beneficiary on the employee life insurance benefit from spouse to adult son appears to be valid and lawful where the welfare plan and the underlying life insurance policy itself do not expressly prohibit.  See Sun Life Assurance Co. v. Mae Bell Benjamin, Case 1:09 CV 2452 (U.S. Dist. Ct., Northern District of Ohio, Eastern Division 2010). .

However, as to the FORD RETIREMENT, federal ERISA law governs.  DURING THE MARRIAGE, 29 U.S.C. section 1055 protects the worker’s spouse from being left high and dry form the employee changing the beneficiary on the retirement while married, mandating by law that the spouse gets at least half of the pension (the “qualified joint and survivor annuity) UNLESS (1) the spouse consents in a very specific writing that is notarized or witnessed by a plan representative; or, (2) by a Qualified Domestic Relations Order (“QDRO”) used in the case of divorce.  See subsection (c)(2)(A)  of section 1055 as to how a spouse may waive her interest in the worker’s pension plan.   And see 29 U.S.C. section 1056(d)(3) as to alienation/transfer of the spouse’s share by means of a QDRO.  Simply put, Congress crafted ERISA to grant the worker’s spouse at least half of the pension plan benefits, and to prevent the transfer or taking of the spouse’s share of the pension plan benefits without the spouse’s consent.

But what about cases where the divorce court awards the retirement to the employee, only for the employee ex-spouse to fail to change the beneficiary after the divorce?  A pair of U.S. Supreme Court cases squarely answer the question.

First, in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the high court held that pension plan administrators need only apply the language of the plan and pay the money to the last named beneficiary.  In so ruling, the Court observed that payment of pension plan benefits is a central aspect of ERISA plans and that it is unduly burdensome to saddle plan administrators with the task of figuring out the various laws that nearly all 50 states have to prevent the ex-spouse from getting the pension plan money after the divorce.  The Court focused on the need for the administrator to simply apply the pension plan’s provisions to determine the proper payee to save the time and expense of ascertaining  myriad state laws and the innumerable interpleader lawsuits that would result to protect the administrator from double liability due to paying the wrong payee.  So, with qualified pension plans, ERISA preempts state laws such as Missouri’s that attempt to cancel out the ex-spouse as the beneficiary after divorce.  Consequently, if the employee-spouse fails to change the  beneficiary after the divorce and leaves the now ex-spouse as beneficiary, the ex-spouse is entitled to employee’s pension plan monies.

Lastly, what of provisions commonly found in divorce settlement agreements which are often incorporated or quoted in the court judgments dissolving marriages–typically providing that each spouse forever waives all interests in the property awarded to the other party?  This question the Supreme Court answered in Kennedy v. Kennedy, 129 S.Ct. 865 (2009), involving a pension plan, where the Court held that the plan administrator need only follow the dictates of the plan on which the employee left the ex-spouse as beneficiary after divorce.  The plan administrator is free to IGNORE language in the divorce decree that the wife “is . . . divested of all right, title, interest, and claim in and to . . . [a]ny and all sums . . . the proceeds [from], and any other rights related to any  . . . retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.”   Hence, the boilerplate waiver language in many divorce settlement agreements and judgments does not preclude the ex-spouse from receiving the proceeds of the pension plan on which she was left as named beneficiary after divorce.

Of note on page 15 of the Kennedy opinion is the Court’s statement that:  “ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtures of adhering to an uncomplicated rule: ‘simple administration, avoid[ing] double liability, and ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.'”

And on 17:  “What goes for inconsistent state law goes for a federal common law of waiver that might obsure a plan administrator’s duty to act in accordance with the documents and instruments.'”

“And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule.”  (Also on page 17 of the opinion.)

In summary after considerable research of Missouri and federal common law, mind-mashing ERISA statutes, and U.S. Supreme Court opinions–the ex-spouse as cast above is the last named beneficiary on the TESPHE pension plan and as such entitled to those funds since there was no QDRO or consent divesting the ex-spouse as beneficiary.  If you are an employee with retirement or pension, make absolutely sure that you change the benficiary away from the ex-spouse unless yours is the rare case where you want the ex-spouse to remain as beneficiary.

Kurt H. King

Law Office of Kurt H. King, 20  E. Franklin, Liberty, MO 64068

816.781.6000

divorce & modification, child cusotdy and visitation, support and paternity

personal injury & workers’ compensation, bankruptcy, and probate.

April 4, 2012

Who Owns The Church Anyway?

Filed under: Litigation — kurthking @ 6:05 pm
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Does the local church own the church land and building, or does the denomination?   This question the Westen District of the Missouri Court of Appeals answered in its January 10, 2012, decision in the case styled Heartland Presbytery v. Gashland Presbyterian Church. On the facts of this case, the court of appeals held that the local Gashland Presbyterian church owned the land and church buildings, resolving this dispute arising out of Gashland’s dissassociation with the Presbyterian denomination.

In deciding the case, the court applied the “neutral principles” approach rather than the “rule of deference” to the church on religious matters.  The neutral approach holds that “there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which the property is awarded.”  (It is constitutionally taboo in this country for the government to establish a church due to the separation of church and state so fundamentally important to the founding fathers who wrote the  Constitution and  Bill of Rights.)    Applying  “neutral principles,” the court looked to: 1.  the Deed; 2. the local church’s Articles and By-Laws; 3.  the national denomination’s Constitution (although Heartland Presbytery, the local district governing body, was the actual party of denomination named in the lawsuit).  The analysis of these documents focused on whether the local church clearly expressed an intent to hold the land and building in trust for the denomination.

First–the deed clearly named the local church as owner of the property with no expression whatsoever of any intent to hold in trust for the district Presbytery or the national denomination (Presbyterian Church of the United States–“PCUSA”).  Indeed, the 1948 deed named “Gashland Community Church, Gashland, Missouri” as the sole owner.  The court notes on page 2 of 28 that with the 1948 deed, “Gashland constructed a church on the property.”  While not in the opinion, the history of that church as related to me when a member there is that the original members of Gashland built the original stone and beam sanctuary with their own hands–quarrying the stone at a local site, erecting beams, framing the roof, laying flooring, etc.  

With the deed supporting ownership by Gashland, the court then looked to the Articles of Agreement adopted by Gashland in 1948, and its amended By-Laws of 1987.  Here too the Articles pointed to ownership by Gashland free of any trust in favor of the denomination as Article VII provides that title to property acquired by Gashland “shall vest in the Gashland Community Church of Gashland, Missouri, in its corporate capacity.”   

But, part of the By-Laws of 1987 favored the denomination in providing that Gashland “recognizes that the Constitution of the Presbyterian Church (U.S.A.) is, in all of its provisions, obligatory upon it and its members.”  And, “[n]othing in these By-Laws shall nullify or contravene the provisions of the Constitution of the Presbyterian Church (U.S.A.) and they shall be construed only in conformity therewith.”  However, these By-Law provisions conflicted with the Articles of Gashland and Articles control over By-Laws, so the denomination also lost this point to Gashland.

Third, the denomination argued that, standing alone, the Property-Trust Clause that first appeared in its Book of Order in 1981 and its Constitution in 1983, established a trust over Gashland church property.  This Clause basically states that legal title to all member church property, no matter how title is actually documented, is “held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).”  However, the court clipped the wings of this one-sided unilateral imposition by the denomination, finding insufficient indicia of “some effective expression of Gashland’s agreement to be bound by [the Clause].”   Thus, the denomination’s self-serving attempt to seize ownership through the Clause crashed and burned for lack of sufficient proof that Gashland acted with like intent that its property be held in trust for the denomination. 

And so the court held that Gashland owns the church land and buildings, built and paid for by its members.

Food for thought as Gashland is likely not the only local church with this set of facts.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Litigation, Personal Injury, Workers’ Compensation, Bankruptcy

Family Law including Child Custody & Support, Divorce & Modification, Paternity

March 27, 2012

Embezzler Entitled to Offset for Accounting Firm’s Failure to Catch the Embezzlement

Filed under: Litigation — kurthking @ 4:54 pm
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Interesting new Missouri case out of the Eastern Division of the Court of Appeals involving embezzlement of roughly $2.4 million–Moore Automotive Group v. Lewis, et al., Slip Op. No. ED95870 (Filed March 20, 2012).

Over 8 years, the Chief Financial Officer of the plaintiff automotive group (the “Group”) embezzles over $2.4 million to “pay her personal expenses.”  The accounting firm used by the Group fails to catch the embezzlement.  When finally caught, the CFO/employee pleads guilty in U.S. District Court.  The Group sues the employee for the $2.4 million and the court grants summary judgment for the Group against the employee, based on written motions without a trial to the court or jury.  The employee appeals, contending that it is error to grant summary judgment because there is a material fact as to how much the $2.4 million should be reduced by offsets.  The main offsets are the $1.5 million the accounting paid firm paid the Group for its mistakes in not catching the embezzlement; another $500,000 of accounting fees that the accounting firm “forgave”–wrote off; and $115k from American Express. 

All agreed that the $115k paid by American Express to the Group is an offset which reduced the $2.4 million total.  The main question addressed by the court of appeals is whether the $1.5 million paid in settlement by the accounting firm is also an offset.  Ultimately, the court of appeals ruled that “yes” the $1.5 million is an offset, and sent the case back down to the trial court without reaching the argument for further offset due to the $500k forgiveness of accounting fees.

The main rule of law applied is simple–“Under Missouri law, a plaintiff is entitled to only one satisfaction of the same wrong.”   So, the Group cannot have judgment against  the employee for $2.4 million, take the $1.5 million in settlement from that the accounting firm, ($500k accounting fee write off?), and receive $115k from American Express since all that would total $4 million for a $2.4 million loss. 

So the Group hatched Plan A–argue that the $1.5 million was for something else besides the embezzlement.  This the Group could not show.  In fact the facts pointed the opposite direction as important witnesses basically said that the reason why the accounting firm paid the $1.5 million was to settle the Group’s claim against the firm for failure to prevent or detect the embezzlement.  

Losing on that one, the Group goes to Plan B–the Collateral Source Rule precludes the embezzler from benefitting from the $1.5 million paid by a collateral source, i.e., the accounting firm.  But, the Rule is mainly to prevent the wrongdoer from benefitting from payments by insurance companies  to which the injured plaintiff typically pays insurance premiums.  Clearly a wrongdoer should not benefit from insurance for which the injured plaintiff has been paying out his/her/its own pocket.  While the Rule has been stretched a bit beyond the typical insurance scenario, the court of appeals declines to pull it so far as to cover the accounting firm’s payment of $1.5 million.

The Group loses on Plan B too.  The court of appeals simply sees the $1.5 million settlement as a contract after the loss and not as insurance premium payments.  The Rule does not apply and the result is that the $1.5 million offset applies to cut the Group’s damages to around $900k (and maybe down another $500k for the accounting fees that firm wrote off).

This may seem like a big win for the embezzler–and it is–but the accounting firm and American Express could sue her for indemnity or contribution to recover the money they had to pay the Group due to to the embezzlement.  The result may be more lawsuits  against the embezzler by the accounting firm for $1.5 million and maybe another $500k, and $115k by American Express–which may or may not happen depending on whether the embezzler is now bankrupt, litigation costs, etc.  There was also reference to sale of her assets in connection with her plea bargain on criminal charges in federal court  so there may be some restitution required there that might conceivably put some money back in the pockets of the accounting firm and American Express.

Of note for attorneys is the court of appeals’ indication that a claim for offset should be pled as an affirmative defense or the offset may be lost.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Civil & Business Litigation, Bankruptcy

Personal Injury & Workers’ Compensation

Family Law–Child Custody & Support, Paternity, Dissolution & Modification

www.kurthking.com

March 15, 2012

Credit Card Cancer Fuels Bankruptcies

Filed under: Bankruptcy — kurthking @ 7:18 pm
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What causes the most Chapter 7 bankruptcies in this office?  Credit card debt.

People want to buy what they can’t afford.  They want the good stuff that so and so has.  They can’t wait. 

Instead of encouraging borrowing responsibly, some banks feed the disease by offering debt limits far beyond what a card holder can pay.  The bank may not even have a statement on the account holder’s income or net worth.  When card limits run as high as half of a year’s income, a bank should know better.  And if it doesn’t know, it should by having decent financial data on its credit card holder.  Apparently, the desire to hook the public on credit cards to generate bank revenue through interest, late fees, and whatever else placates the greed for profit that motivates some banks.  What happened to making money the old fashioned way–maybe that is the old fashioned way?

Experience tells me the big banks don’t care about “little” people like you and me.  You can’t get them on the phone and you can’t drive down and talk to them.  The left hand seems not to know what the right hand is doing.  So, unless you need to borrow a billion dollars, consider the local bank that probably would care about you and your financial health.  Heck, one of your neighbors may even work there–or did until he or she was laid off. 

I would put good money on a bet that the local banks in my area–Clay County Savings Bank, Pony Express Bank, Bank of Weston, Commerce Bank, and others–will not hand you a credit card with a $30k maximum limit when you make $60k a year.  We can dial back our spending and go conservative with the smaller local banks that have been here through thick and thin long before the big banks told us the sky is our limit.

And, if our lawmakers are wise, they will rein in the big national banks with laws that put a hurt on banks that supply credit far in excess of what a person can repay.   Maybe pass a law that lets the credit card account holder wipe out in bankruptcy any balance due more than 15% of the annual income or net assets as reported to the bank. 

Just a few of many thoughts on this dilemna.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Chapter 7 Bankruptcy for debtors

Personal Injury and Workers’ Compensation

Child Custody & Support & Visitation, Divorce & Modification, Paternity, Family Law in General

February 27, 2012

Employer Loses Motion for Change in Condition of Permanent Total Disabled Workers’ Compensation Claimant In Missouri

Filed under: Missouri Workers Compensation — kurthking @ 5:36 pm
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In 1996, a Smitty’s Supermarket employee fell off a pallet raised by a forklift and suffered head injuries which left him Permanently Totally Disabled (PTD), although his disability rating was 70% of the body as a whole.  However, at trial the Administrative Law Judge (ALJ) penalized the employer another 15% for failure to comply with the safety provisions of Missouri’s section 292.020.  In 2002, Missouri’s Labor and Industrial Relations Commission upped the award in favor of the employee from one of Permanent Partial Disability (PPD), determining instead that the employee was Permanently Totally Disabled (PTD). 

Later, after extensive medical treatment and rehab, the employee put his life together enough to marry, have a child, and work a string of jobs.  As a result, the employer filed in 2010 its second motion for an order of the Commission downgrading the employee’s injury from total to partial disability.  The Commission sent the motion to an ALJ for hearing.  Both sides hired doctors as experts but the employer’s doctor observed the employee only ” a single day” and failed to interview his wife, family, and others with details on how the injury continued to seriously affect the employee.

Ultimately, the Commission dismissed the employer’s motion because “although Employer had presented evidence that Claimant [Employee] had undergone numerous life changes since the original award in 2002, it ‘did not present any new MRI scans of [Claimant’s] brain or any other concrete evidence showing an actual physical change in condition of [Claimant’s] brain.’ ”   The Southern District of the Missouri Court of Appeals affirmed in Pavia v. Smitty’s Supermarket, Slip Opinion SD31275 filed  02-17-2012.

The moral of the story seems to be that an employer must bring in sufficient proof of change in the physical condition of the injured parts of the employee’s body in order to prove that that the employee is not longer Permanently Totally Disabled.  

And while this case involved an injury prior to the 2005 amendments to Missouri Workers’ Compensation laws, there seems to have been no change made to the applicable statute–287.470.  See Sachs Electric Co. v. Mapes, 254 S.W.3d 900, 902-03 (Mo. Ct. App. W.D. 2008), where the court continued to require proof of a change of physical condition even after the 2005 statutory amendments.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy for debtors

Child Custody, Support, & Visitation; Divorce & Modification; Paternity

February 23, 2012

Court Decides Not to Recognize an Equitable Claim for Child Custody by Nonparent

Filed under: Custody,Family Law,Paternity,Support — kurthking @ 10:33 pm
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Facts:  man believes he is the father of the child born to the lady who lives with him;  man supports the child financially; he later files paternity case and discovers the child is not his–thus no relationship to the child by blood, adoption, or marriage. 

Regardless, guy petitions the court for custody rights to the child.   The court of appeals ultimately denies the father’s claim for equitable custody rights to the child as the man is a nonparent.

The court’s decision avoids opening Pandora’s box to address the almost infinite custody, visitation, support, and inheritance/probate issues that would arise once we step outside of the traditional family box formed by ties of blood or by legal adoption. 

See In Re The Matter of T.Q.L., M.M.A. v. L.L., and the Unknown Father, decided by the Southern District of the Missouri Court of Appeals in Slip Opinion SD31142, filed 02-14-2012.  It remains to be seen whether the decision will be appealed to the Missouri Supreme Court or if that court will take the case for its review.

However, it is not difficult to see how the decision impacts non-tradional family structure.  For instance, custody claims by a gay person against his or her partner who either gave birth to the child or adopted the child appear to be foreclosed as such a person seeking custody rights is a “nonparent.”  Consider too surrogate mother situations and the battles that could arise in that arena.

And, should a “nonparent” same sex partner obligated to pay child support by a sperm donor organization’s agreement or state statute for a child born to her mate have custody or visitation rights to the child?  Is it fair to have to pay child support but not have custody or visitation?

(Missouri statutes 210.824 and 193.085(9) address only instances where the married woman, with her husband’s official consent, is Artificially Inseminated with another man’s sperm under the supervision of a licensed physician.  In such cases, the husband and wife are both considered by law as the natural paents of the child.  And, the sperm donor is “treated in law as if he were not the natural father of a child thereby conceived.”)

The pressure on the law from same sex relationships and nonparent claims of custody and visitation piles on from many directions and varied formations.  This court’s limitation of custody to parents seems a sound course to maintain but there are sure to be hard cases where the nonparent is the only adequate person to have custody of the child.  What happens when denying the nonparent leaves the child with a parent who is unfit or nearly so?  Does the child fall to foster care and leave a “second” mom or dad in the wake?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Child Custody & Support,  Paternity,  Divorce & Modification

Bankruptcy, Personal Injury, Workers’ Compensation

January 26, 2012

7 Things to Remember in Missouri Divorce Cases

Filed under: Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 9:11 pm
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7 legal tibits that make a difference–

1.  Social Security benefits, including disability, shall not be divided in a Missouri Dissolution of Marriage case.  (section 169.572 of Revised Statutes of the State of Missouri)

2.  Likewise, Missouri Public Teachers Retirement benefits, which largely take the place of Social Security benefits for such teachers, shall not be divided in a Missouri divorce case.  (section 169.572 also)

3.  For much the same reason, Tier I of railroad retirement basically pays railroad workers what they would have received in Social Security benefits and therefore is not to be divided by the court in a divorce case.  Federal law, 45 U.S.C. section 231m, exempts Tier I benefits from the property a divorce court may divide.   The Railroad Retirement Board will not honor a court dissolution of marriage judgment/order that divides Tier I.  Only Tier II may be divided.

4.  Military disability benefits  are non-marital property of the soldier that the court shall not divide in a divorce case.  But ordinary military retirement benefits are marital property which may be divided.  Important:  the military spouse may elect to receive military disability benefits and if so the ordinary military retirement benefits are reduced dollar for dollar.  A legitimate reason for taking disability instead of ordinary retirement is that the disability benefits are not taxed as income to the receiving spouse.  Settlement agreements should prohibit the military spouse from electing to take disability benefits instead of ordinary retirement, or to indemnify the other spouse if the military spouse so elects and consequently reduces the amount of ordinary military retirement available to the other spouse.  (Morgan v. Morgan, 249 S.W.3d 226, 230 (Mo. Ct. App. W.D. 2008)

5.  In a Missouri divorce case, court cannot validly order a spouse to maintain a life insurance policy(s) to support the chilren in the event of the death of the spouse charged with paying child support, UNLESS the parties so agree [most likely in a settlement agreement in the divorce proceeding].  (Weiss v. Weiss, 954 S.W.2d 456, 459 (Mo. Ct. App. S.D. 19970); Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 287-88 (Mo. Ct. App. E.D. 1999))  But court may order a spouse to maintain life insurance for other reasons such as to secure the payment of maintenance (formerly called alimony).

6.  Social Security paid for a child due to the non-custodial parent’s  disability may be credited against his/her child support obligation.  (Wallace v. Wallace, 269 S.W. 3d 479 (Mo. Ct. App. E.D. 2008); Weaks v. Weaks, 821 S.W.2d 503, 506 (Mo. 1991))

7.  Social Security paid for a child due to the custodial parent’s disability shall  not be a direct dollar for dollar credit against the non-custodial parent’s child support obligation.  (Gerlach v. Adair, 211 S.W.3d 663, 667 (Mo. Ct. App. W.D. 2007).  But the court may still consider–not necessarily as a full dollar for dollar credit but simply as one of many possible factors–that the child has income of his/her own in the form of Social Security benefits.  (See Missouri Child Support Guidelines at Section G, Comment (1).)

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Divorce & Modification, Child Custody & Modification, Paternity

Bankruptcy, Personal Injury, Workers’ Compensation

www.kurthking.com

January 24, 2012

Credit Given Against Child Support for Social Security due to Disability of Non-Custodial Parent

Filed under: Family Law,Support — kurthking @ 10:10 pm
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Is a disabled non-custodial parent with the duty to pay child support entitled to a credit for Social Security paid “to” the child due to the disability of that non-custodial parent?  Yes in Missouri.

In Wallace v. Wallace, the court of appeals dealt with a situation where mother had residential custody and the disabled father owed child support.  Their minor child received Social Security due to the father’s disability.  The court ruled that the Social Security disability paid to the child should be credited against the amount of child support owed by the father.  269 S.W.3d at 479-81, headnote 4 (Mo. Ct. App. E.D. 2008).  In so ruling, the court of appeals followed the earlier Missouri Supreme Court decision in Weaks v. Weaks, 821 S.W.2d 503, 506 (1991).

So, the child’s Social Security disability received due to disability of the non-custodial parent reduces the non-custodial parent’s child support obligation. 

However, this credit does not apply if the Social Security is paid to the child due to the custodial parent’s disability.  (See Adams v. Adams, 108 S.W.3d 821, 830 (Mo. Ct. App. W.D. 2003)

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Child Custody & Support, Divorce & Modification, Paternity

Bankruptcy, Personal Injury, Workers’ Compensation

www.kurthking.com

 

January 18, 2012

Four Basic Estate Planning Documents

Filed under: Estates/Probate — kurthking @ 5:07 pm
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The 4 basic estate planning documents for those whose wealth does not call for tax planning or other complications:

1.  Beneficiary Deed and Designations:  Designate beneficiaries on your bank accounts, life insurance, retirement, vehicles, etc., yourself using the forms from the bank, license bureau, insurance company . . . .  And have the attorney prepare a beneficiary deed on your real estate so it passes to the named beneficiary(s) without the cost and delay of probate–one of the best tools in the box.

2.   Will:  Have the attorney prepare a Will for you so that any property that you own in your name alone at death–and for which there is no valid beneficiary designation–will pass to persons or charities as stated in the Will.  When a Will comes into play, that means a trip though the channels of probate which typically costs time and money, so try to have proper beneficiary designations on all your assets to avoid probate.  Your Will is also the place to name those persons you want to be guardians and/or conservators for your children if they are minors or unable to handle their own affairs at the time of your death.

3.  Power of Attorney:  Have the attorney prepare at least a general Durable power of attorney to name a trusted person to take care of your affairs in case you are unable to do so due to illness or lack of capacity.  The power of this document “dies” when you die–it is for when you are alive.  Some prefer to have a power of attorney for general/financial purposes, and a separate durable health care power of attorney to cover life support, feeding tubes, and the like.

4.  “Living Will”:  This is a health care directive often provided by your hospital or doctor to state your directives as to life support, feeding tubes, and so on when your illness is terminal.  Because this document covers situations where your condition is terminal, it is NOT necessarily controlling when you might live for months or years in a vegetative or brain dead state.  A health care power of attorney is the tool to use to cover situations where the illness is NOT terminal but reduces the quality of life below the point where one would want to subsist.  The landmark Missouri case on situations where the vegetative condition is not terminal is Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Bankruptcy, Workers’ Compensation, Personal Injury, Child Custody & Support, Divorce & Modification, Family Law, & General Matters

January 3, 2012

Beneficiary Deeds and Designations in Missouri

Filed under: Estates/Probate,Uncategorized — kurthking @ 4:07 pm
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Beneficiary deeds are possibly the best deal in the legal world.  Usually cheaper than a traffic ticket, a beneficiary deed on real estate (residential or commercial) can pass title upon death directly to the beneficiaries named in the deed, in likelihood saving 6-12 months of time in probate court, probate attorneys fees, and probate fees based on the value of the real estate, all of which amounts to several thousand dollars.  Practically all single or widowed persons with property in their own name should have a beneficiary deed, and married or joint owners should too since both could die unexpectedly.  (Note that the above may well not apply if you have put the real estate in a trust, limited liability company, corporation, or some other legal entity which does not “die” when you do.)

While lawyers typically prepare beneficiary deeds involving real estate, a lawyer is generally not needed to make beneficiary designations that do much the same as to personal property such as TOD/POD’s on bank accounts, life insurance beneficiary desigations, TOD’s on titles to vehicles and such, beneficiary designations on retirement accounts, and TOD’s on stock certificates and certificates of ownership in a LLC, to list a few.  The bank, license bureau, or insurance company should have the form you need and can help you fill it out to save considerable time, money, and hassle in transferring ownership of the asset quickly to the beneficiary. 

The advantage of beneficiary designations over joint ownership is that you as the owner may sell, encumber, or take other action WITHOUT the consent or approval of the beneficiary.   In other words, the property is all yours and the beneficiary has no ownership rights until till death and then only if you still own the asset.  Nor do any creditors of the beneficiary have any rights or liens on the asset before the owner’s death.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

General Practice and Litigation, Wills, Real Estate, Bankruptcy, Personal Injury & Missouri Workers’ Compensation

Child Custody & Support, Divorce & Modification, Family Law

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