Disguising Alimony as Child Support is a Mistake

Q: After nearly 20 years of marriage, my second husband left me and our two children. I hired a lawyer to help me and, for the first time, found that my husband had set up what I now know to be an irrevocable trust with $150,000 of the money that we accumulated during our marriage. His son by his first marriage was made the trustee. Although it is crystal clear that my husband did this to reduce my share, my lawyer tells me there is nothing I can do in family court and that I must sue him and his son in another court. This just doesn't seem right to me. Do you think I should get another opinion?

A: Yes, and quickly. It would appear to us that both your step-son and your husband should be made parties to your suit in family court where, we believe, there is the authority to deal with an attempt to keep assets from you. The law is replete with cases regarding fraudulent transfers, and this appears to be one of them. A court, especially a court of equity, generally has the authority to bring before it all persons necessary to allow a full decision on all issues.

Q: Two years ago, my wife and I made a property settlement agreement. Because she ran off with another man, she received no alimony, but to help her get on her feet, I agreed to pay an excessive amount of child support with the understanding that when she remarried, child support would automatically be reduced by 25% and when she went to work full-time, it would reduced by another 25%. She went to work full-time last December and just got remarried. So, as we agreed, I reduced the child support. Now she has sued me and my lawyer says that the agreement relating to the child support is no good. A court approved our agreement two years ago, so why won't our agreement hold water today.

A: Child support is designed to meet the needs of the child and, as such, parents cannot bargain away a child's rights to receive sufficient support. Regardless of what the court did then, your agreement is not binding on the court today if it does not meet the needs of your children. But don't feel too bad: You will find plenty of company in the snare of using children to negotiate agreements. For example, some custodial parents will say "No child support if you give up visitation." You give up visitation and then a suit is brought asking the court to set child support. What can you do? Nothing because you cannot negotiate away your children's rights.

Your salvation, however, is that now your ex-wife is working and remarried, two positive factors that place her in a better financial position than she was four years ago. Your support obligation may be reduced...but not automatically. You can expect to pay some hefty attorney fees, as can she, unless you and she can negotiate now. Your situation is one where you would have been better off paying alimony for a short period of time rather than trying to disguise your payments as child support.

Q: My sister and her husband lived together for nearly 10 years. During that time, she was a prostitute for five years and he solicited business for her. She quit this line of work about two years ago. They have two great kids. Now he has found a younger woman, left my sister, and took the kids. He is suing her for divorce (on adultery) and custody of the kids. Every lawyer we have gone to see tells us there is no hope for her to get back the kids. We know that she was wrong, but he is worse. Where can we find a lawyer who will fight for her and help her?

A: We don't know where you have been looking, but we believe that there are plenty of lawyers who can help. Custody cases are the most time-consuming and expensive types of litigation. Emotions are running high. Since your sister apparently does not have the income or assets to finance this type of litigation, the family must be willing to assist her not only emotionally, but also financially. There must be a commitment to develop the facts and to take the case as far as it needs to go. Remember that in addition to fees and expenses for lawyers, there will probably be fees for the guardian ad litem and the lawyer for the guardian, fees for the therapists who almost always are called into these cases to evaluate the parents and the children, and much more. You should interview lawyers whose practices are liberally sprinkled with custody litigation.