Legal Question in Family Law in Texas
Trust Fund considered to be ''income''
My ex-wife was written into a will from her deceased mother. We have two children - that of which I hold full legal and full physical custody of the children. Up to this point she has never paid child support. While in court she pleads that her only income is from her employment (which in itself is sparatic) however I know at this point she has either received a LARGE sum ($1 million+)or is at least collecting interest monthly from the will. She will not disclose this info to anyone (even her lawyer). My question is this:
1. If she has/is receiving money should that be considered ''income''? Can child support consideration take that into account?
2. What is the best way to find out exactly what the will said (ie:how it is ''worded'', $ amounts, etc.)so that it can further be pursued to help support the children.
She claims to not have money to pay child support because she has to pay to have the children visit her in TX and we live in MN - but yet she always seems to be spending money (new convertable car, clothes, etc.). Any help is greatly appreciated.
2 Answers from Attorneys
Re: Trust Fund considered to be ''income''
Although she has never paid child support, I am assuming that the divorce decree orders her to pay it. Also, since you did not say, I have to assume that the divorce was granted in Texas and that, at this time, the Texas Courts have jurisdiction over the case. If you have lived in New Mexica for over six months you may have the action transferred out there, but I am not familiar with New Mexico law.
What you seem to need is a typical action for enforcement. You can bring a suit in the court with jurisdiction and request that your ex-wife be held in contempt for violating an order to pay child support. Also, if you think that she has the funds and know what bank she uses, you can have a lien put on the bank account. This is extremely effective in these cases. Also, don't forget that you are entitled to interest (at 12%)on unpaid child support. I have seen cases where the interest accrual exceeds the monthly payment itself!
If the court of jurisdiction is in the Austin area, I will be glad to discuss enforcement of this matter (512-477-6200). If the decree was rendered in New Mexico, then you should call an attorney out there. If there never was child support ordered, then your attorney can discuss with you the possibility of getting retroactive child support.
While an inheritance is not considered to be income, the interest earned from it certainly would be.
Good luck.
Re: Trust Fund considered to be ''income''
Trust income can be considered in setting the amount of child support. If child support already has been ordered, trust income - and trust corpus, if the obligor is entitled to it - are not immune from use to pay child support.
To find out what the will says, you have two choices: Sue her (which you have to do to collect the support anyway) and as part of that process issue discovery to obtain the will; or determine where the will was probated and see whether it was filed of record.
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