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Trust For Daughter Is None Of Errant Dad's Business
Jan L. Warner & Jan Collins

Question: My daughter is 16 years old. My wife and I were divorced five years ago. Since I am a rather high wager earner, I was required to pay child support of $1,500 per month. My former wife died early last year and left a life insurance policy in trust for my daughter. She made my former sister-in-law the trustee and guardian for my daughter who wanted to live with her aunt instead of me.

This was all right with me, but I believe a lot of money went into this insurance trust that is available for my daughter's support and that I should be able to get my support payment reduced. Since I am also obligated to pay for my daughter's college, I think that the trust should subsidize some of these bills. Here's my problem: I don't know what the trust says, and my former sister-in-law will not give me a copy. Can I go into court and get an accounting from the trust and seek a reduction in my child support benefits?

Answer: Just when we thought we had heard it all, we received your letter. Putting aside for a moment the emotional distress that you would cause your daughter by taking her and her custodian to court in an effort to reduce your support payments because she may be getting the benefit of funds resulting from her mother's death, there are two ways in which to look at your question.

If funds are being distributed from the trust to take care of your daughter, those funds may bear on the amount of child support you should pay. In addition, you must know that your daughter is probably receiving Social Security as a result of the death of your former wife. Looking at the circumstances in this fashion, you might be able to convince a judge that you are entitled to some type of disclosure.

However, we are confident that your former sister-in-law will raise the point that since you are not the guardian or custodian of your daughter, you do not have legal standing to request an accounting from the trustee because you are not a party in interest. Under these circumstances, we think it would be unlikely that you would be entitled to any accounting.

We are also confidant that the trust in question is an irrevocable trust and that any distributions made to your daughter are within the sole discretion of your sister-in-law. This means that no one can tell your sister-in-law what or when to pay for your daughter.

Here, since your former wife is deceased, the financial and personal support your daughter would have received are gone. From a practical standpoint, it would appear to us that a "high wage earning" father going into court in an effort to reduce child support based on these circumstances would not be welcomed with open arms by any judge.

While the phrase "let your conscience be your guide" might be appropriate in some circumstances, this is not one of them.

SoloFact: This is the sixth of 12 financial pitfalls that should be avoided at divorce. If you miss any of the 12, visit www.flyingsolo.com, click on "Divorce" and then on "Frequently Asked Questions." NOT STANDING UP FOR WHAT'S RIGHTFULLY YOURS. Even though survival and good manners needn't be mutually exclusive, resolving the economic aspects of divorce is about survival. The financially dependent spouse - generally the wife -- may have been brought up in an environment that promoted peacemaking and sensitivity to the needs of others. While a dogfight may be foreign to this type of litigant, that's not a reason to lay down and either give up a fair share or not get what is needed. Don't underestimate your needs or overestimate your desires.



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