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Asset Protection FAQ (Frequently Asked Questions)

Posted on: May 26, 2017 at 5:54 am, in

Asset Protection: Questions on Protecting Your Assets

Estate Planning and Protecting Your Assets

Protect your assets from lawsuits, divorce, Medicaid.
Asset protection is one of the most important things you can do. The planning is a method of preparing for any possible lawsuits in the future. It entails rearranging the ownership of your current assets so that they cannot be touched by creditors during a lawsuit. Asset protection can also act as a form of supplementary insurance. It can protect you from the various risks that can be associated with professions and businesses. Generally speaking, asset protection is used to safe-guard your assets that would be at risk. There are different degrees of asset protection. Typically, the more complex the planning is, the more effective it will be in the future. However, even though complex planning can offer you the best protection, it is also very expensive and there are more restrictions involved.

Do You Need an Expert on Asset Protection Planning?

If you have assets that require you to plan your estate if you die, then you probably have enough assets to strongly consider an asset protection plan. It is important to protect these assets from lawsuits that could occur before your death. The decision is entirely personal and is based on risk aversion, your asset level and the level of protection you need. There are very few levels of protection that as you may imagine, have a correlated cost to set up, but it is a very personalized product and a professional needs to assess all of these factors when making a recommendation.

What Assets Can Be Protected?

Asset protection involves exempt property that is considered unreachable by creditors. Each state has its own unique laws that define what exempt property is. Some properties can be entirely exempt, while others may be limited. Some common examples of exempt property include clothing and jewelry, tools of a trade or a business and household furnishings. In some cases, life insurance and social security may be classified as exempt property. But there is no reason to risk laws changing in your particular state; an asset protection plan should take these potential risks into consideration.
If your property is not exempt, you should consider an asset protection plan attorney. This simple plan would transfer the property from you to an irrevocable trust. By transferring ownership of valuable assets to a trust, you will protect those assets from creditors. This transfer will protect your assets while you are living and will also protect them from a tax collector when you die. There are some disadvantages associated with these transfers which include the new owner’s exposure to creditors, your personal loss of control over the particular asset that was transferred and any gif tax consequences that result from the transfer.

Are My Retirement Assets Protected from Creditors?

If your assets are held in a retirement plan, the federal law will not allow creditors to reach those assets. Some examples of assets that are protected by a retirement plan include profit sharing, pensions and 401(k) plans. IRA’s may not be protected. You will need to check the laws in your state to see if your IRA is legally protected from creditors.

How You Can Protect Your Assets When Starting a Business

If your new business is not incorporated or held within an LLC with the shareholders being an irrevocable trust, you will place your personal and business assets at risk. Any claims that are made against the business could result in the loss of assets; personal or business-related. There are different tools that can help protect your assets when starting a business.

Partnerships and Trusts

Family limited partnerships have been deemed one of the available asset protection devices. While this is effective, it is not foolproof unless an irrevocable trust is the general partner. Many states allow limited liability companies to be formed, and they are also viewed as a great ownership form when considering asset protection. It is very difficult for any creditor to reach any assets that have been transferred using these devices if the membership shares are in the name of a trust.

Fraudulent Transfers

Asset protection is ethical and legal as long as the plan is put in place before a lawsuit is filed. It may be too late if there is already a claim or a lawsuit pending. Asset transfers during this time could be considered fraud. More specifically, fraudulent conveyance is where someone divests themselves of assets without fair consideration because they see a problem arising and would like to avoid paying a claim. However, a few highly sophisticated firms have ways of legally transferring assets in distressed times with a financial instrument to avoid problems with fraudulent conveyance.Please contact Estate Street Partners if you are seeking counseling to legally transfer your assets in distressed times and still avoid fraudulent conveyance. Each will be taken on a case by case basis. Estate Street Partners will never condone illegal practices and advocates transparent accounting and legal practices.

Should You Consider Moving to Avoid State Estate Taxes?

Posted on: April 5, 2017 at 4:46 am, in

Wealthy individuals or couples who have reached maturity do not need to worry about raising their children or paying bills. Money gives them the financial freedom, economic stability and peace of mind to do what they want. As estate (death) taxes rise, wealthy individuals wonder if it is financially beneficial to move to a more asset-friendly state to protect their assets.
Many “snowbirds” have vacationed in the warm weather states of Florida or Texas, so it is not a dramatic “leap of faith” for them to consider moving to these low-tax states permanently to protect their assets. But are the financial benefits in a more tax-friendly state attractive enough to justify the costs, expenses and hassles of moving? Here is an answer to this very important question.

Disadvantages of Moving to Low-Tax State

When you have lived your entire life in one state, you build up emotional, spiritual and social ties. Your core family may be concentrated in one area, but most Americans are very mobile. You might have good friends in your home state or you might have grown comfortable with the convenience of your home area. You also wonder about the costs of moving.
Many low-tax states have vibrant communities of people who have moved from high-tax states. So if people are socially-friendly and charismatic, they can make new friends. The Internet has made it easier to communicate over long distances, so your family will be electronically close. If you compare the money that can be saved by avoiding a high estate tax to moving costs, it might make sense to move financially.

Governments with High Debts Must Increase Taxes

With government debts rising, the primary way they can balance their budgets is to increase tax rates. The estate (death) and inheritance taxes are popular ways to generate revenue by transferring a portion of the wealth from private families to the public coffers. The government has been modifying the level at which the tax is “triggered” and experimenting with different rate levels.
According to W. Rod Stern, attorney-at-law, Entrepreneur Magazine’s Legal Guide Estate Planning, Wills and Trusts affect an estimated 1 to 2% of American household estates are large enough to incur the estate tax. Most states have what is called an “exemption” for the primary family home. The first step is to compare the value of your estate to that minimum threshold.
Some states realize that if they raise the estate tax exemption, they can attract wealthy individuals. These figures are always changing, but here is a sample of state estate tax exemption levels for 2012:

2013 State Estate Tax and Inheritance Tax Chart

State Type of Death Tax 2013 Exemption 2013 Top Tax Rate
Connecticut Estate Tax $2,000,000 12%
Delaware Estate Tax $5,250,000 16%
District of Columbia Estate Tax $1,000,000 16%
Hawaii Estate Tax $5,250,000 16%
Illinois Estate Tax $4,000,000 16%
Iowa Inheritance Tax $25,000 15%
Kentucky Inheritance Tax Up to $1,000 16%
Maine Estate Tax $2,000,000 12%
Maryland Estate Tax, Inheritance Tax $1,000,000, $0 16%, 10%
Massachusetts Estate Tax $1,000,000 16%
Minnesota Estate Tax $1,000,000 16%
Nebraska Inheritance Tax Up to $40,000 18%
New Jersey Estate Tax, Inheritance Tax $675,000, Up to $25,000 16%, 16%
New York Estate Tax $1,000,000 16%
Oregan Estate Tax $1,000,000 16%
Pennsylvania Inheritance Tax $3,500 15%
Rhode Island Estate Tax $910,725 16%
Tennessee Estate Tax $1,250,000 9.5%
Vermont Estate Tax $2,750,000 16%
Washington Estate Tax $2,000,000 19%
If your estate is valued above one of these limits, it makes sense to move to a state that puts you below their estate tax exemption rate. If you time the housing market properly, the sale of your old home could pay for the moving costs to the low-tax state. States know the value of wealthy residents and are offering plenty of financial incentives to encourage you to move.

How do Estate Taxes Vary by State?

Once the estate is valued above the exemption limit, then each state has a different rate that they charge for the death tax. Also in the chart above are figures for estate tax rates in 2013 (these changing very frequently). You should also take into account the rates because they can make a huge difference.
For example, if you calculate the difference between 9.5% and 19% estate tax rates, the amounts are quite dramatic. When you consider probate, estate (death) and inheritance taxes, it makes sense to move to a more asset-friendly state. If you explain to your children (future heirs) that they will inherit more money in a low-tax state, then they may support the move, especially with the ability to communicate.
While the primary reason for moving to a state with lower estate taxes is financial, there is also a philosophical difference in low-tax states. While colder high-tax states try to siphon off the wealth built up by hard-working citizens, the warmer low-tax states emphasize increasing the “productivity” of the state. This can create a better environment in the long run. You should consider moving to avoid state estate taxes if it is financially advantageous to do so.

Another Option:

Another option exists to avoid estate taxes in your own state. UltraTrust.com has many articles on the advantages of the irrevocable trust and how it can save you and your children from having to pay any estate taxes or even having to go through probate.

5 Biggest Myths About Asset Protection and Your Small Business

Posted on: April 5, 2017 at 3:17 am, in

1. My business is separate from me.

Your business isn’t separate from you and your family unless you make it separate. You think that you are leaving your house and going to work, but really you’re not leaving anything. If you don’t make your business separate and treat it as separate, then it isn’t. If your business gets sued, you and your family will be sued and vice versa. Attorneys sue everyone with money in their name and ask questions later when they begin their fishing expedition AKA “discovery.” If they forget to sue a party with money they cannot go back and try again for the same issue.

2. An LLC will save me and my family from any problems with the business.

Great, you’ve made your business separate and created an LLC, but that doesn’t solve all of your problems. You see, there is something called, “piercing the corporate veil.” What this means is that if your business isn’t operating completely separate from your personal accounts and life, then a creditor can come after your personal assets by saying that your LLC is just a personal asset in costume. All of the books have to be in order and nothing can be paid from the business for personal use. Remember when your spouse called and asked you to get groceries and all you had was the company credit card? That could come back to haunt you. 98% of small business owners do this at least once and it is their downfall in a lawsuit.

3. Estate planning and business are two separate things.

They can be, but that wouldn’t be prudent. The business has to be run by someone if something happens to you. The business has to be kept going until it can be passed on to whomever you choose. Also, estate planning devices can add an extra layer of protection, so that your business is and stays separate from you personal assets.

4. If someone sues my business partner, that has nothing to do with me.

You would think so, but what if that person or entity takes part of your business and you effectively have a new unwanted partner? If you own an LLC with a partner, there are some protections called “charging orders” limit a partners creditor to only taking the assets that they would take home. Still, a savvy lawyer can get the courts to force the partner to sell his part of the business to pay the creditor. Then you have a new unwanted business partner anyway.

5. If none of my children want my business, it has to be sold.

Your business can keep going long after you are gone. Your business can be held and run and all the benefits can be passed on to your children or whomever you wish. The beneficiaries don’t even have to be involved…its your business and your rules, even if you aren’t around anymore and you set it up correctly.

What you can do to protect your assets:

First, if you haven’t guessed it, get the business away from your personal assets. Most entrepreneurs don’t think it will happen to them because their idea is the best thing since sliced bread, but the fact is that 80% of startups don’t last 5 years. Don’t let a failed business ruin your family or life savings. You need to form an LLC, but you need to form one that is all-but-immune to “veil piercing.” You can do that by not owning your LLC. The way to work for and control an LLC without owning it is to have an Irrevocable Trust, that is built for this kind of protection like the UltraTrust, own it. If the anyone tries to “pierce the corporate veil,” they aren’t going to end up in your personal bank accounts, they are only going to end up being in trust. That’s the advantage of using what is traditionally an estate planning device to protect you and your family.
If both you and your partner place all the shares of the LLC in the trust and work for the LLC, if one of you are sued or goes into debt, then there is not share for the debtor to take over. The debtor may be able to garnish some wages, but various states only let them take so much. The other partner still doesn’t have to worry about getting an unwanted creditor as a partner.
So, by now, you probably guessed how to keep the business going after you are gone. A solid Irrevocable Trust like the UltraTrust will work. You put in a business savvy trustee to oversee the trust assets. That trustee makes sure that there is good management in place in the business and then “sprinkles” assets to your children or beneficiaries as they need them. All the while, the main asset is safe in the trust. The trustee even has instructions not to pay debts or court judgments, and the beneficiaries don’t own the LLC or the trust, so the LLC and accompanying assets are safe.
The combination of the UltraTrust and an LLC can protect both your family and your business and keep things running smoothly long after you are gone.
Protect your assets for yourself and your children and beneficiaries and avoid tax dollars. Assets can be protected from frivolous lawsuits while eliminating your estate taxes and probate, and also ensuring superior Medicaid asset protection for both parents and children with our Premium UltraTrust Irrevocable Trust. Call today at (888) 938-5872 for a no-cost, no obligation consultation and to learn more.
Rocco Beatrice, CPA, MST, MBA, CWPP, CAPP, MMB – Managing Director, Estate Street Partners, LLC. Mr. Beatrice is an “AA” asset protection, Trust, and estate planning expert.

8 Advantages of Choosing an Irrevocable Grantor Trust as Your Family Trust

Posted on: March 8, 2017 at 1:04 am, in

8 Advantages of Choosing an Irrevocable Grantor Trust as Your Family Trust

What is a Family Trust, what is their Origin, and how can they help me?

We get many calls every week asking “what is a family trust, where did they originate, how could they help me?” There are many types of “family trusts.” Some are specifically for the purposes of holding real estate such as a real estate family trust, and some designed to hold only life insurance like an irrevocable life insurance trust (ILIT) and others are for more general purposes. In general, although the use of a family trust dates back a few centuries, lawyers and estate planning firms have mostly overlooked the irrevocable grantor trust as a preferred instrument for this purpose. While most ill-advised attorneys tend to promote the revocable living trust, we, along with most asset protection attorneys are of the opinion that an irrevocable grantor trust makes the best family trust in most circumstances, and the following eight reasons explain why.

Benefits of a Family Trust #1 – An Irrevocable Grantor Trust Protects Assets

King of British Empire creates feudal taxes in the likeness of estate taxes.
King of British Empire creates feudal taxes in the likeness of estate taxes.

Creating a postmortem real estate family trust was one of the earliest purposes of trusts upon their establishment in the 15th century. The historically controversial King Henry VIII of England did not like the use of trusts too much; in those days, feudal taxation was excessive to the point that the Crown supported the appropriation of property as soon as knights passed away. In this case, early real estate family trusts were created upon the execution of wills, which meant that relatives could benefit from land that could not pass to the Crown. King Henry VIII was not in agreement with this practice and thus prohibited these real estate family trusts by royal decree; upon his passing due to health issues related to obesity, the English Court of Chancery reauthorized the use of trusts.

Although feudal taxation would be gone long before the fall of the British Empire, it survives in spirit in the form of estate taxes. This taxation standard is the basis of the idiom about there being nothing certain but death and taxes, for it is true that even the dead are required to pay tax in the absence of legal instruments such as an irrevocable grantor trust in today’s world.
Estate taxes are present at both the federal and in many states at the state level. Essentially, these are death taxes, a vestige of the Henry VIII days that seeks to collect revenue even after the taxpayer shuffles off this mortal coil. Modern statutes are not draconian in this regard; some exemptions and the use of an irrevocable grantor trust are allowed.
In situations like these irrevocable trust advantages are outstanding. An irrevocable grantor trust basically serves the same purpose as they did when real estate family trusts were created in the midst of the Renaissance period: to protect property and assets from the claims of third parties, including the tax authority. In the past, these third parties were the Crown, the feudal lords, the lenders, and potential usufructuary actors who would jump at the chance of claiming a piece of a knight’s property once he passed away. The modern versions of these third parties in the United States would be the Internal Revenue Service (IRS), the state revenue collection agencies, creditors, opportunistic or frivolous plaintiffs, and even gold diggers.
Irrevocable trust advantages go beyond the estate tax. A modern irrevocable grantor trust can do more than simply avoiding the payment of death taxes; they can provide individuals and their loved ones with guaranteed income while effectively transferring property and assets to heirs in a manner that is more efficient than traditional wills. Asset protection attorneys dedicated to estate planning and wealth management have been known to recommend about a dozen trust structures to families; however, only a properly written, executed, and funded irrevocable grantor trust is known to provide “bulletproof” protection if they are properly structured and managed. Any irrevocable grantor trust broken in the last 150 years of litigation, the only ones broken were ones that had issues with how they were written, executed, or funded.

Benefits of a Family Trust #2 – Irrevocable Trust Advantages Include Providing Ideal Ownership Situations

What are other examples of irrevocable trust advantages? It all boils downs to a legal theory known as the “burden of ownership.”
There is no question that we live in highly litigious times. Frivolous lawsuits that seek to establish a claim over property or assets are filed every day, and this is a situation that is often magnified after death. A good example in this regard would be legendary musician Prince, whose unfortunate death was followed by numerous siblings and half siblings coming forward to meet under contentious circumstances as they suspected that the late Minneapolis star did not leave do any estate planning what-so-ever, not even a will.
State ranking of Ameria of the number of torts
A graphic map of the number of torts per state. (click on image to see larger detail. 383KB)

Legal analysts and asset protection attorneys following the Prince case have commented that the burden of ownership is something that will haunt his estate for years to come as his survivors continue to fight in court. In the absence of an irrevocable grantor trust, Prince Roger Nelson’s estate will pay a huge estate tax with relatives ready to file claims for the remainder that establish his ownership of assets and their rights as heirs apparent.
The burden of ownership is what makes frivolous lawsuits happen in the first place. The first legal hurdle that a plaintiff must clear is that of establishing that the respondent actually owns the assets or property being claimed. The case cannot move forward and should be dismissed when the court finds that the lacks this basis; in other words, claims can only be made against property that is legally owned by the respondent.
When an irrevocable grantor trust, the burden of ownership is effectively removed. Assets placed within a properly written, executed, and funded irrevocable trust are not owned by individuals; instead, they are owned by the legal entity established by the terms of the trust, but unlike a corporate structure, the trust has no shareholders, just beneficiaries. This does not mean that families cannot enjoy automobiles, homes, art, liquid funds, investments, etc; all these assets are still available for the use of beneficiaries, and they can even be sold and transferred by the trustee as instructed by the trust.
Prince photo
Prince could have set up an irrevocable trust

In the case of the late Prince, for example, an irrevocable trust could have been set up so that the income from the rights and royalties to the music he created could be paid to his family in perpetuity. Prince could have effectively separated himself from his music, but only in the ownership sense, and he could have pulled this off in a very private way so that no one except for select confidants would have known about the true ownership.
Doing away with the burden of ownership is something that can certainly be considered one of the irrevocable trust advantages. Once again, the notoriously litigious society that we live in makes this a necessity for many families.

Benefits of a Family Trust #3 – Income Tax Returns

One of the most famous examples of an effective irrevocable trust structure being used was made known to the public during the 2012 electoral campaign of former Massachusetts Governor Mitt Romney.
As a candidate to the Presidency of the United States, Romney was required to provide a series of financial disclosures that revealed his use of a series of irrevocable trusts that effectively will allow his family to avoid a 35 percent tax rate on assets valued at more than $5M at the time of the trigger, his death.
What the public learned about Mitt Romney's irrevocable trusts and how they protected assets
What the public learned about Mitt Romney’s irrevocable trusts and how they protected assets

What the public learned during Romney’s campaign about irrevocable trusts and how they shield assets from taxation was unprecedented. His family’s estimated net worth inside the trusts back then was $250 million, but this mostly came from financial disclosures of his investment banking firm Bain Capital. Due to the privacy features of irrevocable trusts, it is very possible that the American public will never know the exact net worth of Romney and his family.
Despite his use of irrevocable trusts, Romney was still able to produce the requisite income tax returns that candidates are expected to show to the public. This tradition of American politics did not help Romney’s campaign much because it proved that he took advantage of certain credits and exemptions that reduced his personal income tax burden. What the public never got to see, however, was any tax return from the irrevocable trusts that the Romney family members reportedly benefit from.

The American public will probably never get to see the tax returns produced by the Romney family trusts, and this is due to the bold privacy protections of irrevocable trusts. This does not mean, however, that the trust itself is invisible to the IRS; it has its very own tax identification number and files its own tax return, but it is understood that the beneficiaries are not the legal owners of the assets held therein.
Irrevocable grantor trusts used for the purpose of family wealth preservation and management are not illegal instruments of tax avoidance, either the trust or the individual will pay taxes due on income, it is typically just a different process. Form 1041, U.S. Income Tax Return for Estates and Trusts are filed each year by thousands of trustees and CPAs across the country. Tax advantages and reduced liability shall not be confused with tax avoidance.

Benefits of a Family Trust #4 – The Probate Process

The statutes of all 50 states of the Union have at least two elements in common: a criminal code and a probate code. In the United States and across the world, the intent of the probate process is to establish the legal validity of wills and other instruments that individuals executed before they passed away. In other words, the probate process ostensibly puts the courts in a position of representing the legal interests of the departed.
Probate process in America is a legal avenue for wealth redistribution
Probate process in America is a legal avenue for wealth redistribution

In reality, the judicial probate process in all 50 states serves as a legal platform of wealth redistribution, whereby debts and taxes are paid before the heirs can establish a claim to what is left of the estate.
Probate proceedings happen to be matters of public record; this is particularly useful in cases of intestacy, which is when individuals pass away without leaving a trust or even a will. As mentioned above, this may seem to be the case with the Prince estate, and it is bound to get more convoluted as time passes and more dirty laundry is hung out to dry on news headlines.

No family wants to go through the probate process because of the cost (5-10% of assets), public scrutiny, delay in distribution of assets, and opportunity for outsiders claims and as any asset protection attorney will tell you, it can be completely avoided. Trusts can certainly prevent the ugliness of public probate proceedings. In terms of avoiding probate and keeping family life out of the public view, nothing is more efficient than a trust, and this is something that cannot be stressed enough: any trust can keep family affairs in the family when the time comes to settle an estate. Moreover, a trust should also be structured in a certain way for this privacy and anti-probate features to be effective.

Benefits of a Family Trust #5 – Setting Up an Irrevocable Grantor Trust for Generations

Families who wish to protect their assets so that they can pass from one generation to another should choose their instrument carefully. Two important benefits of a family trust should always be longevity and equity in terms of asset control.
A revocable living trust cannot guarantee longevity, nor can they ensure families that one of their members could suddenly exert total control over property and assets. Most grantor trusts are of the revocable living trust type, which means that the Grantor, as owner of the assets that will be deposited in trust, will retain too much control. One notorious example in this regard is the family trust created by media mogul Sumner Redstone, majority shareholder of Viacom/CBS.
Sumner Redstone, owner and CEO of Viacom Inc.
Sumner Redstone, owner and CEO of Viacom Inc., convinced members of family trust to allow him to retain control

The Viacom/CBS media empire found itself at odds when the National Amusements trust, which has 80 percent voting power in the Viacom/CBS affairs, moved to oust two top executives. According to probate filings, Redstone convinced the members of the family trust to approve keeping him in control despite his advanced age and questionable competence to handle financial affairs.
As the Viacom/CBS case progressed in court, legal analysts argued whether giving Redstone so much control over the trust was a wise business decision for Viacom/CBS. To be clear, the National Amusements trust is irrevocable, but it is structured in a way that makes Redstone the only beneficiary as long as he is alive, which means that he can appoint or dismiss trustees as he pleases.

There are better ways to establish irrevocable trusts that would not run into the issues seen by the Viacom/CBS sordid state of affairs. The first step is to ensure that the trust is not a revocable living trust, which gives the Grantor too much control over decisions on how to manage the family fortune. The idea is to establish solid permanence for the family by stripping ownership from the Grantor and appointing an independent Trustee. The trust must be structured in a way that can benefit the family from one generation to the next, and this requires a structure that does not allow arbitrary the removal of assets or beneficiaries. In some cases, a Trust Protector may also be appointed for the purpose of hiring and dismissing trustees.

Benefits of a Family Trust #6 – Keeping Family Fortunes From Being Lost Abroad

In the later decades of the 20th century, major changes in the laws and regulations of the United States prompted some families to consider going offshore for the purpose of protecting their assets.
The offshore asset protection industry came of age during the Reagan years and grew exponentially as the World Wide Web developed. As a result, more American families became convinced by their asset protection attorney that the best asset protection strategy available to them could be found in offshore financial havens such as the Cayman Islands, the Bahamas, Switzerland, Panama, and other nations where fiduciary laws and regulations favored privacy and the protection of wealth.
Offshore financial havens take advantage of their regulatory climate to safeguard assets and keep them away from aggressive creditors, frivolous plaintiffs, freeloaders, gold diggers, and other unpleasant characters whose purpose in life is to claw away at family fortunes.
Although the offshore asset protection strategy is often considered to be pretty bold and effective, it has unfortunately attracted lots of attention in the 21st century. The so-called “Snowden Effect” of activism and Wikileaks-style whistleblowing resulted in the Panama Papers scandal of 2016.
The estate planning and wealth management's world industry learn from the Panama Papers
Panama Paperss give the estate planning and wealth management’s world industry a lesson

The estate planning and wealth management industry has learned some hard lessons in the wake of the Panama Papers, particularly about the zeal that drives activists and journalists to investigate and expose what they consider to be scandalous. It has already been established that the bulk of the Panama Papers revelation consists of individuals, families and business entities that simply wished to legally take advantage of offshore jurisdictions to protect their assets. Unfortunately, the names of American families have been run through the mud along with the names of unsavory characters who also used offshore financial havens for nefarious purposes.
Any expert asset protection attorney will tell you, there are two clear realities about offshore family trusts: they are effective tools for asset protection, but they are also overkill for most American families as the cost to maintain one ranges from $5-10,000 annually. The fact that they are also being targeted by surreptitious activists and data journalists who claim to operate in the name of transparency is alarming.

What any expert asset protection attorney will agree with, is that many American families do not realize is that bold asset protection and wealth preservation can be achieved domestically with a properly written, executed, and funded irrevocable trust, which can also be combined with a limited liability company (LLC) for even bolder protection. There is no need to get tangled up in high maintenance costs or a cloak-and-dagger affair such as the Panama Papers.

Benefits of a Family Trust #7 – Gifting Versus Irrevocable Grantor Trusts

Many an asset protection attorney suggests gifting as a strategy for individuals who wish to transfer a lump sum to their survivors. They may even recommend transferring funds into an irrevocable trust as a gift. This is a severely flawed strategy that must be avoided at all costs.
Irrevocable trusts are superior to plain gifts in the sense that the Grantor will relinquish all control. First of all, lump sum gifts tend to be used irresponsibly, which happens to be against the precepts of estate planning. Second, a gift made to an irrevocable trust may expose those assets in a potential court case.
Plaintiffs represented by seasoned asset protection attorney who are skilled in the ways of asset protection can easily uncover gifts made into irrevocable trusts. If a family wishes to place assets in trust for the benefit of their heirs, then the Grantors must be properly advised on how the transfer must be executed. Gifts into trusts may appear to be questionable to a judge, who could in turn issue an order to reverse the asset transfer.
Any asset protection attorney will tell you that irrevocable trusts are better options than outright gifts, but they must be structured in a certain way that protects the interests of the family. Reduction of capital gains taxes is just one aspect of this strategy, which may also call for Independent Trustees and a Trust Protector.

Benefits of a Family Trust #8 – A True Legacy and Peace of Mind Can Be Attained With an Irrevocable Grantor Trust

Primary benefits of a family trust are to keep assets within the family, and no other legal instrument can achieve this as efficiently as an irrevocable grantor trust.
For married couples who are planning on having children, there may always be a concern about what could happen to their fortune should one spouse pass away. If the surviving spouse gets married again, there is always a chance that the estate of the departed husband or wife could be enjoyed by the members of the new family instead of what the couple had originally planned.
With a properly constructed irrevocable trust, a provision can be stipulated for the benefit of true beneficiaries, who can be the children of the couple who agrees to form the trust in the first place.
When setting up an irrevocable trust to protect family assets, the ultimate goal is to establish a legacy. A frank discussion with estate planners should provide the guidance for the objective of the irrevocable trust. From drafting to funding and from execution to management, an irrevocable trust can truly help families build their legacies in perpetuity.

We look forward to our visit with you and your professional representatives to assist you with the advancement of your estate planning.
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Cordially,
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Rocco Beatrice, CPA (Certified Public Accountant), MST (Master of Science in Taxation), MBA (Master of Business Administration), CWPP (Certified Wealth Protection Planner), CAPP (Certified Asset Protection Planner), CMP (Certified Medicaid Planner), MMB (Master Mortgage Broker)
Managing Director, Estate Street Partners, LLC
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This statement is required by IRS regulations (31 CFR Part 10, 10.35): Circular 230 disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Irrevocable Trust Structure

Posted on: March 8, 2017 at 12:58 am, in

Asset Protection: Part 3 of 4, by Rocco Beatrice, Sr.

The bolt part of the Ultra Trust®.
Our Ultra Trust®

Our Ultra Trust® is an intellectual property right registered with the U. S. Patent Office, financially engineered to remove yourself from the probability of becoming the next creditor victim. This whole website www.ultratrust.com is devoted to the best methods and strategies of asset protection and our Ultra Trust®.
Irrevocable Trust Asset Protection chart of the different types of relationships in a trust document.

What’s an asset protection trust? What’s a Trust?

A “TRUST” is nothing more than a “CONTRACT” between the person who wants asset protection (the Settlor), the person who will manage the assets (the Trustee), for the benefit of all Beneficiaries – whomever you choose.
The Trust Agreement requires the transfer of assets to be protected from the original owner (Settlor) to a legal entity for the purpose for which the Trust Agreement was created.
What type of trust, Grantor, or Non Grantor? What’s the distinction? A Grantor Trust take a special consequence within the tax code. Our Ultra Trust® is a “Grantor-Type Trust” for tax purposes is treated as a disregarded legal entity. The disregarded entity is “Income Tax Neutral” meaning that the original Grantor retained strings attached so that for purposes of the IRS income tax reporting, the original owner (grantor(s) retains the assets in his complete control, thus our Ultra Trust® is a “pass-through” to his form 1040 i.e. real estate tax deduction and mortgage interest deduction on his person income tax return, INCOME TAX NEUTRAL.
Revocable, Irrevocable trust, what’s that mean? Revocable is when the original person with the assets transfers (repositions) the assets to a trust with strings attached. The Grantor, the Trustee, and the Beneficiary are the same person. Effectively you have done nothing, because it’s between you and you for the benefit of you. A revocable trust does absolutely nothing for asset protection because you can be forced to revoke it by a creditor or court. Many lawyers recommend revocable trusts for avoiding probate, recognizing that the trust is not worth the paper it’s written on for protecting assets against frivolous lawsuits and the avoidance of estate taxes or the 5 year Medicaid spend-down provisions.

IRREVOCABLE TRUSTS

A properly written, executed, and funded irrevocable trust, such as the Ultra Trust®, is an extremely powerful asset protection device. The opposite of revocable is “irrevocable.” No strings are attached by the Grantor. “Irrevocable” means that nobody can force you to revoke it, and thus if executed correctly, gives phenomenal asset protection benefits. Once assets are transferred from the Grantor(s) to the Trust, the Grantor has no control, other than possibly some very limited powers. It’s this clear-cut lack of control and ownership that makes this trust very powerful asset protection device. You can’t be sued for assets you no longer own or control. The fiduciary duty of an independent trustee of an irrevocable trust is critical and viewed by the courts as golden. The Trustee must preserve the assets entrusted to him at any cost. Courts take a very unpleasant view on a Trustee who has abused his fiduciary duty. Breach of fiduciary duties by a Trustee could be considered and intentional tort subject to punitive damages.
OUR irrevocable Ultra Trust® asset protection trust when combined with a Limited Liability Company (LLC) or Family Limited Partnership (FLP) is an asset protection fortress, short of a foreign asset protection trust. A foreign asset protection trust is the Rolls Royce of asset protection, the irrevocable trust with an LLC is the Cadillac / Mercedes / Lexis.

WHAT’S A TRUST PROTECTOR? You won’t get this from your lawyer

Because you are concerned about the power and discretion granted to the Trustee, we add the Trust Protector to create the checks and balances you need to feel comfortable, while reinforcing the bullet-proofing of our Ultra Trust®
The power of the Trust Protector is derived from the Trust Contract. The Agreement sets forth the dual function of the Trustee and the Trust Protector to give you a backup plan if the Trustee is not cooperative. While the Trustee can be a bank, CPA, trust company, or other financial institution, the Trust Protector is usually a person close to the family, a CPA, accountant, or lawyer who is already the family consiglieri.
The Trust Protector’s powers can take any form, limited only by the wishes of the Grantor(s) and their imagination. Generally, the powers granted the Trust Protector are:
1. Ability to remove or replace the Trustee without any explanation (Donald Trump style: “You’re Fired.” Often this is the only power granted to the Trust Protector. In cases where the Trustee is a corporate body (bank, trust company, insurance company, or professional trustee) if the Trustee is unresponsive or not performing to the Trust Agreement for the benefit of all Beneficiaries, or changes in management, or investment choices, the Trust Protector can fire and replace the Trustee, at will, without explanation to the current Trustee.
2. Ability to change the Trust’s situs to take advantage of law changes or necessary steps to act in the best interest of beneficiaries if they move from low tax states to high tax states, i.e. from CA or NY (high tax states) to NH, TX, or NV (low tax states) or changes in laws occurring long after the initial implementation of the Trust Agreement.
3. Ability to resolve deadlocks between co-trustees or in squabbling between the Trustee and/or Beneficiaries.
4. Ability to veto spending over a certain amount. This level of control is significant if disbursements of the Trust are in excess of pre-arranged amount requiring two signatures, the Trustee and the Trust Protector i.e. in excess of $20,000.
5. Ability to veto distributions to Beneficiaries. Before distributions are to occur the Trust Protector may want to investigate the financial stability of the Beneficiaries. For example, if the beneficiary is being sued, The Trust Protector may withhold distributions, or the Beneficiary is undergoing divorce proceedings, or the Beneficiary may be too young, is under duress, mentally incompetent, unable to manage, or otherwise unavailable. The Trust Protector can override/veto the Trustee and withhold distributions temporarily or permanently make other arrangements such as buy the assets necessary for the benefit of the beneficiary (buy a house, a car, sign a rental agreement, but have the Trust own the assets, make loans, or make other provisions.
6. Ability to veto investment decisions. This checking and balancing of investment decisions are based on the Trust Protector’s experience, prudence, and the Trust Agreement guidelines in protecting the assets for the Beneficiaries.
7. Ability to sue and defend lawsuits against the Trust assets. The fiduciary duty of the Trustee and The Trust Protector as to save the assets of the Trust, at any cost, for the benefit of all classes of Beneficiaries.
8. Ability to terminate the Trust. If in the opinion of the Trust Protector there are insufficient funds or the cost of administration is greater than available cost/benefit, the Trust Protector may terminate the Trust, as for example, if all beneficiaries have received their distributions based on age (over the age of 21) and there’s one minor beneficiary currently 10 years old, and there aren’t enough assets to administer the Trust for the next 11 years, the Trust Protector has the power to make the final distribution and terminate the Trust.
The Trust Protector’s role is created by the Trust Agreement to add an additional layer of protection and is usually a person most familiar with the Grantor’s long term financial and personal goals. A Trust Protector usually is the balance of power between the Trust Agreement, the Trustee, The Grantor, and the Beneficiaries. Neither the Trustee or the Trust Protector should be anyone related to the family by blood or marriage. Both positions should be independent of each other acting in the long-term interest of the beneficiaries.
Read part 1 of 4: Asset Protection Strategy
We look forward to our visit with you and your professional representatives to assist you with the advancement of your estate planning.
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Cordially,
Rocco Beatrice Sr sig
Estate Street Partners logo

Rocco Beatrice, CPA (Certified Public Accountant), MST (Master of Science in Taxation), MBA (Master of Business Administration), CWPP (Certified Wealth Protection Planner), CAPP (Certified Asset Protection Planner), CMP (Certified Medicaid Planner), MMB (Master Mortgage Broker)
Managing Director, Estate Street Partners, LLC
Riverside Center Building II, Suite 400, Newton, MA 02466
tel: 1+888-938-5872 +1.508.429.0011 fax: +1.508.429.3034
email: [email-obfuscate email=”rbeatrice@ultratrust.com” link_title=”Email Rocco Beatrice” class=”email_obfuscate_class” tag_title=”Question from UltraTrust.com”]
UltraTrust.com

“Helping our clients resolve their problems quickly, effectively, and decisively.”
The Ultra Trust® “Precise Wealth Repositioning System”
This statement is required by IRS regulations (31 CFR Part 10, 10.35): Circular 230 disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

How to Retain Control of Your Premarital Assets…Not With Prenuptials

Posted on: March 7, 2017 at 7:32 am, in

Protecting Your Business Assets and Interests From Divorce
Husband and wife ready for boxing fight match.
What is the best way to control premartial assets?

Would-be newlyweds these days have a lot to worry about, particularly when it comes to retaining control of property and assets. The line between marital assets and separate property is becoming thin due to case law and the way some jurisdictions handle divorce proceedings. This potential concern has led to the popularity of prenuptial agreements and other premarital contract, which are not always the best instruments for their intended purpose.
In the United States, prenuptial agreements are legally recognized in many jurisdictions by virtue of the Uniform Premarital and Marital Agreements Act, which saw its first draft in the mid-1980s. Since then, many states have adopted the Act, although there are still sharp differences with regard to intended scope and the degree to which prenuptial agreements can be enforced in some jurisdictions. Therein lies a major problem with prenupl agreements: They are not always guaranteed to work as planned.

There is a better legal instrument that engaged couples can use in lieu of prenuptial agreements. An irrevocable trust has many advantages over a prenuptial agreement, and it provides remarkable asset protection in comparison. One of the best features of irrevocable trusts is that their creators, known as grantors, are able to retain control of their property and assets at all times, even when things seem to get out of control during a divorce.

Understanding Separate Property in Divorce Proceedings

Seeking agreement on property, assets and income issues is at the heart of most prenuptial agreements. Modern life has gotten a bit complicated, and thus there is a valid need for people to settle issues related to property and assets before they get married.
Prenuptial agreements are essentially contracts that establish what couples wish to retain as separate property. Although statutes in various states differ on the concepts of how property is divided during marriage dissolution proceedings, the general idea of separate property follows the principles below:
  • Property owned prior to marriage is separate.
  • Inheritances are considered separate assets.
  • Gifts made by third parties as well as compensation from personal injury judgments should be considered separate from marital assets.
Any other assets acquired after the wedding would generally be considered marital property, although state law has the final say based on principles of equitable distribution and community property. If you live a community property state such as California, Texas, Arizona, Washington, Nevada, Louisiana, Wisconsin, or Idaho, you can through these rules out the window. Many couples in these state even with a prenup had their prenups rendered worthless by the courts.
In addition, outlining separate property on a prenuptial agreement in general does not leave couples off the hook with regard to state law or to the circumstances of married life. Separate assets listed on a prenuptial agreement can become marital property if their integrity is changed during the marriage; for example, adding a spouse as a co-borrower in the mortgage of a home purchased before marriage just to get a lower rate on a refinance. The same goes for money that was inherited and deposited into a joint savings account.
In a way, getting married is tantamount to ceding control of your property to the laws of the state whether you get a prenup or not. A good way to illustrate this is the issue of appreciation of separate property. The divorce statutes of many states consider the increase in value of separate assets to be marital property. For example, a woman who wants to keep a portfolio of blue-chip stocks as separate assets might have to split the gains of the share prices and even dividends paid when she heads to divorce court. A similar example would be a vacation home in an active housing market that appreciated in value before the marriage dissolution.

Keeping Control of Separate Assets with an Irrevocable Trust

To some extent, all couples who walk down the aisle have a prenuptial agreement even if they did not actually sign one. The divorce laws of each state act as a prenuptial agreement in the sense that the newlyweds agree to divide up their property according to statute and renounce control by turning it over to the state and the courts.
The most tangible way to retain control of assets before, during and after a marriage is to use an irrevocable trust. These instruments are regarded as being the most effective tools of asset protection and estate planning, and they are superb alternatives to prenup agreements.
With an irrevocable trust, a future groom or bride assigns ownerships of his or her assets to a legal contract that stipulates who gets the benefit of separate property. The other party does not have to sign or go through the awkward and unromantic process of a prenuptial agreement. Spouses do not need to know about the assets kept in the trust, either; the separate property does not have to disclosed.
In case of a divorce, the assets kept in an irrevocable trust do not come into play. A judge will only look into the trust to ensure that no marital assets were surreptitiously transferred therein. The grantor who created the trust is free to call the shots with regard to the assets he or she brought to the marriage at any time. By executing an irrevocable trust, a grantor effectively asserts full control over property, even when going through a divorce or other difficult situations.
To find out more about how irrevocable trusts can make a difference in your life and allow you to retain control of your property at all times, please contact UltraTrust.com today.

Extramarital Affairs, Cheating and Prenup Lifestyle Clauses as Unenforceable

Posted on: March 7, 2017 at 7:31 am, in

Woman feeling guilty of extramarital affair.
Celeb Justin Timberlake agrees to prenuptial clause with wife Jessica Biel

Renowned actress Gwyneth Paltrow recently used the term “conscious uncoupling” to explain that she is on the verge of a breakup and headed to divorce court. Across social media circles, speculation about potentially adulterous behavior ran high. Katherine Woodward Thomas, the psychotherapist who actually coined the term, explained that conscious uncoupling is a process of dissolving a relationship in a way that reduces harm to families.
Can conscious uncoupling be made part of a prenuptial agreement? Yes, it can be incorporated as a lifestyle clause along with other activities and provisions that are not typically considered when thinking about prenuptial agreements. Can cheating and extramarital affairs be included in prenuptial agreements? What effect can such clauses have on money, investments, real estate and other assets?

What is the Purpose of a Prenuptial Agreement?

Premarital agreements are treated differently across various jurisdictions. Certain states will have limits on what couples can include and leave out of marital and separate property. Prenuptial agreements are essentially legal instruments that seek to establish a division of property, and they are not even the most effective instruments in this regard.
Irrevocable trusts are increasingly being used as an effective alternative to prenuptial agreements. These trusts do not present the premarital awkwardness of having the future groom and bride sit down and have an unromantic conversation about what’s mine and what’s not yours. Irrevocable trusts serve many purposes; they are primarily instruments of asset protection that do not involve the signature or even knowledge of a fiancé or fiancée. These legal structures are ideal for making sure that personal assets are not at the mercy of a future spouse.
Prenuptial agreements frequent purposes and uses are as are often used as tools for bargaining and negotiation before the marriage is consummated; some couples see them as a test of character and moral standing, and herein lies the problem. Prenups should focus on defining personal and marital assets and other financial matters; incorporating lifestyle clauses does not help to keep this focus.

Unusual Prenup Lifestyle Clauses

The existence of a prenuptial agreement whereby a couple agrees to cheat on each other has been alleged among celebrity gossip circles, but such premarital lifestyle clauses have not actually been substantiated.
Lifestyle clauses are essentially non-financial provisions in prenuptial agreements. The nature of these lifestyle clauses centers on behavior, and they may range from taking out the garbage to how often the couple should go on vacations together and from staying under a certain weight to infidelity.
Cheating clauses on prenups fuel the collective mind of popular culture and gossip journalism. It is alleged that actor Michael Douglas risks losing millions of dollars should he stray from the lovely Catherine Zeta-Jones. Pop singer and actor Justin Timberlake reportedly agreed to a similar prenuptial clause with his wife Jessica Biel.
Family law attorneys who have worked with couples seeking to add lifestyle clauses to their prenuptial agreements remind them that may be considered unenforceable in some states, and that they may be rendered invalid in some cases. Infidelity, even when provisioned by a prenuptial agreement, may turn into adultery and become grounds for divorce. There are no monetary penalties associated with adultery; nonetheless, if the wandering spouse spent money on a lover, he or she might have to reimburse the cheated wife or husband.
Unusual lifestyle clauses such as the ones described above are not commonly found in irrevocable trusts. The focus is on asset protection and estate planning. Should infidelity lead to the dissolution of a marriage, the assets protected by an irrevocable trust structure remain safe. In a divorce proceeding, a judge will only take a look at the assets outside of the trust to check for marital assets because assets placed inside the trust are by definition – not martial; the integrity of the instrument is never challenged.

Moral Deterrent to Infidelity of Prenuptial Agreements Lifestyle Clauses

When talking about infidelity, whether it is part of a prenuptial agreement by means of a lifestyle clause or not, there are issues of burden of proof and reasonable doubt to consider. In a way, these lifestyle clauses are not very common because most people will question the moral certainty and legal enforceability of marital infidelity, even when it is ironed out on a legal instrument such as a prenuptial agreement.
The problem with borderline sordid prenuptial agreements is that they can end up being challenged in court and thus become part of the public record. Even when they are unenforceable, some couples may think of lifestyle clauses as moral deterrents to infidelity. To this end, the last thing a married couple would like to see during divorce proceedings is their personal life choices being discussed in family court.
Many legal experts think that mixing lifestyle clauses with financial provisions in prenuptial affairs is not a good idea. For this reason, a premarital agreement may include what is known as a severability clause that allows lifestyle clauses to be separated from the contract for the purpose of keeping the financial provisions enforceable.
In the end, couples who wish to make certain financial arrangements before tying the knot are advised to take a good look at irrevocable trusts instead of prenuptial agreements. Depending on the specific financial situation of the bride or groom, only one of them may need a trust, but each can choose to protect their assets with an individual trust. To find out more about how an irrevocable trust can help you retain control of future outcomes better than a prenup, please call us now at (888) 938-5872.

Protect Your Business Assets in Divorce. Prenup vs Irrevocable Trust

Posted on: March 7, 2017 at 7:31 am, in

Protecting Your Business Assets and Interests From Divorce
Divorce sign. Road signs: Divorce, custody, lawyers, assets.
Properly protect your business assets in divorce. Comparing the prenuptial vs irrevocable trust.

Business owners and self-employed professionals should think about what their lives would be like if they get divorced. It does not matter if they currently live in marital bliss of if they have not yet tied the knot; the odds for married couples in the United States to end up in divorce court are about 50/50 for first-time marriages, and they increase to 70 percent for business owners or couples that walk down the aisle for a second and third time.

Marriage = Business Liability

Legal divorce proceedings across many jurisdictions have the potential to decimate business holdings when certain demands are made by a separating spouse. Think about the unfairness of this scenario: An entrepreneur builds his or her business through decades of hard work and sacrifice, only to see it dismantled in divorce court. In many cases, the very ownership of the business is at stake during a marriage dissolution. What couples need is some sort of prenuptial insurance to “divorce-proof” their business.

Both business ownership and holdings are at stake during a dissolution of marriage, but they need not be. Protection is available, but most people erroneously think about prenuptial agreements in this situation. There is a legal instrument that can be effectively used to protect a business prior to getting married, and it does not involve asking a future husband or wife to review and sign an awkward document. Using an irrevocable trust as a prenup method of asset protection makes a lot of business sense for the following reasons:

No Awkward Moments When Planning Your Prenup with Your Fiancé

Is there anything more unromantic than a prenuptial agreement? First of all, for such a legal instrument to be effective, the future groom and bride should get their own, separate attorneys. After that, the future spouses must provide full disclosure and accounting of their assets for the purpose of deeming them marital and separate property. In these modern times, this part of the prenuptial agreement process is basically an invitation to a premarital argument.
Irrevocable trusts remove all the awkwardness of a prenuptial agreement by skipping the process above. A fiancé or fiancée does not have to know about the trust, and he or she certainly will not have to sign it. Business or personal assets in the irrevocable trust are protected throughout the marriage; in case of divorce, a judge will examine the trust only for the purpose of checking if marital assets are contained therein.

Retain Control: No Protracted Legal Battles

The problem with prenuptial agreements is that they often invite legal challenges. This may seem ironic since these agreements are intended to be equitable insofar as the parties are involved, but the reality of the litigious civil society we live in makes premarital contracts fodder for litigation.
Depending on the jurisdiction, attorneys can employ a number of legal strategies to contest premarital agreements. Excessive child support is one such strategy that diminishes the purported protection of a prenuptial agreement, and the court proceedings involved are usually lengthy and expensive. With an irrevocable trust, a grantor will often be able to determine the assets that will be distributed to his or her children and at what age they will be able to receive them.

Making the Other Spouse Happy

One of the reasons prenuptial agreements are so often contested and end up overwhelming court systems across the U.S. is that spouses enter a different mindset when they start marriage dissolution proceedings. When executing a premarital agreement for the first time, couples are mostly focused on the future wedded bliss; once they get past the awkwardness of talking about such matters, both fiancé and fiancée are willing to sign on the dotted line and walk down the aisle. Once the idea of a divorce is introduced, this mindset is reversed.
The unwavering tenacity of some men and women to extract as many assets from the business operations of their spouses often results in numerous challenges and expensive divorce proceedings. Irrevocable trusts allow spouses to settle such challenges in a civil manner since grantors have the power to give their divorcing spouses whatever they deem enough to settle their claims and thus avoiding lengthy legal battles.

Postnuptial Agreements Not Required

Some couples are so shaken by the complexity of divorces and their effect on business operations that they sit down to hammer out a postnuptial agreement before the marriage dissolution is finalized. These contracts are similar to prenuptial agreements, but they are executed by husband and wife before they cease to be a married couple. In theory, these postnuptial contracts should give business owners peace of mind, but not every jurisdiction recognizes them, and even in states where they are valid they are not free from legal challenges.
In the end, prenuptial agreements simply do not provide the level of asset protection that irrevocable trusts can offer. These instruments can benefit anyone, but they are particularly useful to business owners, entrepreneurs, and professionals who have significant earning potential and stress such as doctors, dentists, engineers, etc. To find out more about how an irrevocable trust can protect your business better than a prenup, please call us now at (888) 938-5872.

Pros and Cons of Prenuptial Agreement vs. Irrevocable Trust Protection

Posted on: March 7, 2017 at 7:30 am, in

Premarital discussions that deal with financial issues and the possibility of asset distribution in case of a breakup are as romantic as getting a root canal done or spending an entire day in traffic court. Prenuptial agreements are not for all couples, but many legal analysts argue that they should be. These premarital agreements present both advantages and disadvantages that future brides and grooms should give careful consideration to.

Prenuptial Pros

Here are the advantages of a prenuptial agreement (aka prenup agreement for short):
Prenuptial agreement contract.
Can a prenuptial agreement really protect your assets? The pros and cons of a prenup.

Conflict reduction: As long as a prenuptial agreement is conscionable and enforceable, it has the power of reducing the legal burden of divorce proceedings. In a way, signing a premarital agreement is akin to a couple having a proactive discussion about issues that they do not really want to argue about in the future.
Establishing intent for spousal support and alimony: In many states that have adopted the Uniform Premarital Agreement Act of 1983, spousal support and even alimony can be waived before the wedding.

Financial protection: This is the most common reason cited as the rationale behind prenuptial agreements, particularly in states where the statutes follow the community property civil doctrine. In this regard, Arizona, California, Texas, and Nevada quickly come to mind.

Prenuptial Cons

If you believe that “All is Fair in Love and War,” you will be interested to know the following issues related to premarital agreements. In other words, here are the disadvantages of a prenup agreement:
The basis for the agreement: Although divorce statistics in the United States are far from encouraging, would-be newlyweds do not really want to talk about a potential marriage dissolution. The formulation and execution of a premarital agreement imply a future breakup, which is the ultimate killjoy of wedding preparations.
The burden of inflexibility: Life situations may change, but prenuptial agreements tend to stay the same. Although these agreements can certainly be updated, they often require many of the same steps undertaken for their creation. This could mean retaining separate counsel and talking about the possibility of divorce all over again.
Lifestyle adjustment: Once a prenuptial agreement is signed, the future husband and wife must learn to adjust their lifestyles to the terms they agreed to before the wedding. Sudden changes in financial situations can be detrimental to a spouse’s lifestyle after divorce all because of a clause was not amended on a prenuptial agreement.
Enforceability of prenuptial agreements: Many couples who sign premarital agreements are unpleasantly surprised when they arrive in court and find out that their document is ruled invalid or unconscionable. Such agreements are subject to the opinion of the court, and they are often subject to legal challenges.

Retain Control: How Irrevocable Trusts Improve Upon Prenuptial Agreements

The use of irrevocable trusts as premarital instruments for asset protection and financial stability yield more advantages than prenuptial agreement and have none of the disadvantages.
With irrevocable trusts, individuals do not really pre-plan their divorce. Establishing an irrevocable trust is not something that a couple must endure; in fact, input from other parties other than estate planners is not required. This is good news for people who do not want to have that uncomfortable conversation about what to do in case of a divorce.
Creating an irrevocable trust does not mean that future wives, husbands or children have to be excluded from the enjoyment of assets. The grantor of the trust can designate beneficiaries to receive certain amounts of assets under certain circumstances. You are in control of all of the outcomes related to assets inside of the trust and with a properly drafted irrevocable trust, you can change your mind at any time. Why would you want a judge to dictate the terms of a divorce when he is not privy to all of the details and private conversations with your spouse?
One of the main goals of irrevocable trusts is asset protection, which happens to work very efficiently in divorce cases. Unlike prenuptial agreements that are subject to the interpretation and opinion of the court, a judge will only take a look at the assets outside of the trust to check for marital assets because assets placed inside the trust are by definition – not martial.
Whereas prenuptial agreements can be legally challenged with many strategies, precedent tends to favor the integrity of irrevocable trusts. Case law has been very positive towards irrevocable trusts in divorce cases; the same cannot be said of numerous premarital agreements that have been deemed invalid, unconscionable, unenforceable, and even nonsensical.
Aside from serving as excellent tools for asset protection, irrevocable trusts are great for estate planning. Prenuptial agreements simply do not survive death. Irrevocable trusts, on the other hand, may continue to earn value and serve the interests of the beneficiaries long after the grantor passes away.
In the end, the flexibility, efficiency, and control of assets inside irrevocable trusts makes them very attractive as legal instruments to be used in place of prenuptial agreements. To find out more about how an irrevocable trust can help you retain control of future outcomes better than a prenup, please call us now at (888) 938-5872.

JAMES R. HAPPOLD v. JEAN HASHER HAPPOLD DOCKET NO. A-2792-10T1

Posted on: March 7, 2017 at 7:24 am, in

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2792-10T1
JAMES R. HAPPOLD,
Plaintiff-Respondent,
v.
JEAN HASHER HAPPOLD,
Defendant-Appellant.
November 21, 2011
Telephonically argued October 25, 2011 – Decided
Before Judges Axelrad and Ostrer.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-309-09.
Stacy L. Spinosi argued the cause for appellant.
Maryann J. Rabkin argued the cause for respondent (Rabkin Law Offices, P.C., attorneys; Ms. Rabkin, on the brief).

PER CURIAM

Defendant Jean Happold appeals from the alimony and counsel fee award in the divorce judgment entered on December 21, 2010 after a brief trial. Defendant argues that it was error to award ten years of limited duration alimony instead of permanent alimony after the parties’ long-term marriage. She also argues that the court failed to apply the required factors in considering her counsel fee request. We reverse and remand.

I.

The parties were married in 1989. Plaintiff filed his dissolution complaint on October 14, 2008 after separating from his wife the previous July. The parties have three daughters; one was emancipated before trial. Defendant was born in 1966 and plaintiff in 1965.
Before trial, counsel reported that the parties reached agreement on all matters except: alimony, equitable distribution of an account that defendant alleged plaintiff had dissipated, and the enforceability of a prenuptial agreement. Although counsel did not mention attorney’s fees, that remained an issue.
The parties agreed that defendant would have primary residential custody of the two minor children and plaintiff would exercise overnight parenting time twenty-six nights a year. The parties also agreed to divide all assets evenly, except that defendant would receive the marital home, which had $164,000 in equity after subtracting a $32,000 mortgage. Insurance cash values were allocated to pay off the house debt and defendant would reimburse plaintiff $82,000 by transferring part of her half-interest in plaintiff’s 401(k) account.
At trial, plaintiff’s employer testified that plaintiff was a project manager, estimator, and corporate secretary for Masonry Preservation Group, Inc., where he had worked for over twenty years. He started out as a laborer, but his income grew substantially after 2003, as he acquired new skills and responsibilities. His reported income was $101,000 in 2005 and $180,900 in 2006. The court found that plaintiff currently received a base salary of $156,000 a year, plus $8000 in automobile benefits. As plaintiff’s bonus income fluctuated, his total wages including bonuses were $181,370 in 2007, $215,000 in 2008, and $238,500 in 2009. His employer testified no bonus was expected in 2010 because of business conditions.
Defendant became pregnant with the parties’ first child, a daughter, when she was sixteen years old in tenth grade. Plaintiff was in eleventh grade. Defendant then dropped out of school, finishing only ninth grade. She lived with her parents after the birth in the spring of 1983.
In 1984, she and the child began living with plaintiff in his family’s home. Plaintiff finished high school, and began working. Plaintiff’s mother also worked. Defendant remained in the home, cleaning, washing, cooking, and caring for the child.
Defendant testified that plaintiff proposed marriage on Christmas Eve in 1987. They began looking at houses and in July 1988, plaintiff purchased in his sole name what would become the marital home. (Plaintiff testified that he bought the house in 1987 before the engagement, but he could not explain on cross-examination why the deed clearly reflected a July 1988 closing.) The parties and their child moved in after the purchase.
The parties married on December 30, 1989. However, two days before, the parties entered a prenuptial agreement in which defendant purported to waive any claim for support or equitable distribution in the event of divorce, or any claim to plaintiff’s property in the event of his death. Plaintiff conceded at trial that he retained the attorney who represented both parties to the agreement.[1]
Defendant gave birth to the parties’ two other daughters in 1993 and 1995.
The parties disputed the extent of their home-making duties. Plaintiff testified that he did all the shopping, helped with cooking and house cleaning, and attended all school-related conferences, which his wife did not. As discussed below, defendant described a different allocation of roles.
The parties also differed regarding the family budget. Plaintiff testified that his wife and two teenaged daughters jointly spent $20 a month for hair care, and $25 a month for clothing, but he would give clothing as gifts and would pay for hair care and manicures around birthdays. In his case information statement (CIS), he alleged that his wife and daughters spent $5 a month for prescription drugs; and $10 a month for non-prescription drugs, cosmetics, toiletries and sundries. Plaintiff allocated zero for entertainment, lessons, sports and hobbies, school lunch, dry cleaning, medical or dental expenses, savings, and maintenance of the ten-year-old minivan defendant drove. Plaintiff budgeted monthly $70 for restaurants and $375 for vacations for his wife and children. Earlier in the marriage, the parties took annual vacations to Maine or Florida. As plaintiff’s income rose, they took more expensive vacations to Hawaii, California, Las Vegas, and St. Maarten.
Plaintiff claimed that defendant chose not to enter the workforce. She was generally uninvolved in the family’s finances, and did not have any bank accounts or credit cards in her own name. The only jointly-held asset was a savings account with roughly $2000 at the time of separation, which was intended to give defendant immediate access to money if plaintiff died. All other marital assets, including all bank accounts, were in defendant’s name. He testified that she resisted his efforts to teach her how to write a check.
Defendant painted a different picture of her role in the family, the family finances and her absence from the workforce. She testified that plaintiff discouraged her from obtaining employment, stating, “He always said I was too dumb to work.” As for her lack of involvement in the family finances, she explained that her name was never put on a checking account “[b]ecause Jay said it was his money and it was his business,” a position consistent with the prenuptial agreement. She said her name was never put on any of the household bills, “[b]ecause Jay thought I was too stupid to handle the bills.” Although she signed the parties’ joint tax returns, she said she did not read or understand them. Even after the separation, plaintiff continued to write checks to pay defendant’s household bills.
As for involvement in the children’s school activities, defendant stated that she was “room mother” for the parties’ oldest daughter; she went to most of her conferences, and “did all her school activities.” She was also involved in “[a]ll the school activities” of the two younger children, including “[c]onferences, room mother, yearbook committee, parent committee.” She testified, “All the school trips, I went on. Anything that was done at the school. Fun Day.” She stated that she ceased attending parent-teacher conferences only after she and plaintiff entered a civil restraints consent order August 5, 2009 when plaintiff dismissed a harassment-based domestic violence complaint against her. She explained that plaintiff chose to attend the conferences, which she understood precluded her from attending, given the civil restraints.
She testified that during her marriage, she was “[m]ostly bullied, told what to do” and “made . . . [to] feel like I was nothing.” She said that her husband did the grocery shopping “[b]ecause he said I was too dumb to do it.”
She said that her husband gave her $20 a week for gas, which he later increased to $40. In the year preceding separation, he began to give her $300 a week in cash, which he then reduced to $275 a week. In other cases, she needed to ask her husband for money for a specific purchase, such as small household items or children’s clothing.
Defendant claimed significantly greater living expenses in her CIS than plaintiff described, but conceded that she was “not really sure” about the accuracy of her scheduled expenses. Defendant allocated $250 a month for entertainment; $50 for children’s lessons; $75 for sports and hobbies; and $130 for school lunches. Defendant testified that the parties went to a restaurant once a week; and as plaintiff’s income rose, they went to more expensive restaurants.
She also testified that the house roof leaked and there were other neglected home maintenance projects. The ten-year-old Ford minivan she drove had ceased working during the separation, leaving her without a car for an extended period of time, until plaintiff agreed to pay for repairs.
Regarding counsel fees, defendant testified that she paid $1500 to her attorney from the joint savings account and plaintiff paid $4000 pursuant to court order. She said that her last bill showed a balance due of $15,000. Counsel represented that the $15,000 balance did not reflect the three trial days.
In summation, plaintiff’s counsel suggested an alimony award of $800 a week for “approximately ten years.” Defense counsel argued for $1200 a week for the first five to ten years, as defendant developed employment skills, which would be reduced to $900 permanent alimony thereafter.

II.

In his decision, the trial judge addressed the three issues that the parties expressly designated for resolution at trial — alimony, the prenuptial agreement, and the disputed $55,000 account — as well as defendant’s counsel fee request.
The court concluded that the prenuptial agreement was unenforceable after plaintiff presented his proofs on the subject. At the end of trial, the court also held that the contested account was not dissipated, but used for joint marital expenses. Those determinations are not before us.
The court sua sponte modified aspects of the parties’ agreement on equitable distribution. He ordered transferred to the wife, for house repairs, roughly $10,000 that was expected to be left from life insurance cash values after retiring the mortgage. He also required a 70-30 split of the proceeds of common stock, without estimating their value.[2]
Regarding alimony and plaintiff’s ability to pay, N.J.S.A. 2A:34-23b(1), the court found plaintiff’s base income was $164,000 — $156,000 in salary and $8000 in automobile and other benefits. He omitted plaintiff’s director fee of $1300 reported on his 2009 return. He imputed $20,000 in income to defendant based on the following reasoning:
I think she should be looking for a job and I’m going to impute $20,000 to her a year on income, where that would be a basic income she hould be able to get.
She’s able to work physically and emotionally. I think she can take on a job to make that $20,000 a year.
I’m not imputing a great deal to her but the minimum wage in effect.
The court imputed the $20,000 immediately, notwithstanding finding that “[d]efendant should be given time to build a resume and begin her advancement in the workforce.”
Regarding the marriage’s duration, N.J.S.A. 2A:34-23b(2), the court viewed the term of the marriage to be “18 to 20 year[s] . . . depending on what you count from the Complaint filing or today. You’re talking about a 20 year marriage.” The court noted that defendant and plaintiff were relatively young at forty-four and forty-five, and in good health. See N.J.S.A. 2A:34-23b(3). The court concluded that defendant will enjoy a better standard of living “because she indicates she received very little money from the Plaintiff.”
In addressing defendant’s present employability, educational and vocational skills, N.J.S.A. 2A:34-23b(5), the court stated, “Again, that is taken into consideration in regard to this matter. I’m not imputing a great deal to her but the minimum wage in effect.” The judge stated that he considered defendant’s absence from the job market, N.J.S.A. 2A:34-23b(6), by “starting [her] at the minimal level.” He addressed defendant’s parental responsibilities, N.J.S.A. 2A:34-23b(7) by noting that her parental responsibilities have “way dropped off from the standpoint of small children.” Regarding the time and expenses needed to acquire skills and to acquire capital assets, N.J.S.A. 2C:34-23b(8), the court simply asserted that it had considered the factor, and referred to defendant’s need to “build a resume” and enter the workforce.
Addressing the history of non-financial contributions to the marriage, including child care and education, and interruption of defendant’s education, N.J.S.A. 2A:34-23b(9), the court did not resolve the dispute over the extent of defendant’s contributions. The court simply concluded, “Again, the same thing I just said; I take that into consideration when I look at this from the standpoint of Defendant’s position as she leaves this marriage.”
As for addressing equitable distribution, N.J.S.A. 2A:34-23b(10), and asset-generated income, N.J.S.A. 2A:34-23b(11), the court recognized that defendant would receive the unencumbered house and an unequal share of the stock, but he did not address whether the modest stock holdings would generate any income. The court concluded that it had considered the tax consequences of the award, N.J.S.A. 2A:34-23b(12), stating, “I’m going to basically do a straight alimony payment here. That’s taken into consideration. It’s what’s fair.” The court did not address any additional factors. N.J.S.A. 2A:34-23b(13).
Regarding defendant’s need, N.J.S.A. 2A:34-23b(1), the court reviewed defendant’s budget and in some respects, found costs exceeded those incurred, and in other respects, defendant simply would not be able to replicate the marital standard and would need to economize. The court found, “[S]he’s going to need close to $4900 to maintain a fairly comfortable lifestyle.”
The court awarded alimony of $970 a week, plus twenty-percent of plaintiff’s gross bonuses. Imputing gross earned income of $384 a week (or $20,000 a year), defendant’s total adjusted gross taxable weekly income, excluding any bonus-based alimony, was $1354. Using the net taxable income figure of $989 a week (or $4287 a month) generated by the child support guidelines, the alimony award plus imputed income fell short of meeting the $4900 budget found by the court.
Regarding the duration of alimony, the court stated:
I then look at the issue of the length. . . . I do take into consideration the Defendant’s argument that she’s been with the Plaintiff for over — since she was 16.
But I looked at the marital time period. She did live with her parents, lived with his parents during that time period, so I look at this as about a 20 year marriage.
It makes an alimony case but not a permanent alimony case. I looked at this from two different standpoints. Rehabilitative, because she needs to get into the job force and move forward.
But also, I think rehabilitative is not the only way I should look at it. I look at it as limited duration term, which would basically take care of both issues.
For an 18 or 20 year marriage, I think alimony from the point of seven to ten years or so would be appropriate.
Taking into consideration Defendant’s argument of the additional time that she had spent with the Defendant, raising the one child before, I’m to put it toward the upper end.
And I’m going to do a limited term duration alimony of ten years, which is the upper range that I think is appropriate in this case. The top range, quite frankly.
So it’ll be a ten year. I believe that during that — incorporated into that limited duration term alimony is the ability to rehabilitate and she’s not getting — the children are older now.
She can go to job training and spend some time getting herself, over the next ten years, getting herself into the employment status where she can make some money to support herself and she’s, I find capable of doing that.
The court awarded defendant $5000 in counsel fees, in addition to $4000 in fees that defendant already paid. As noted above, defendant also used a joint asset to defray $1500 in fees. However, the court did not address the amounts that the parties actually incurred — as there were no certifications of fees, or other cognizable evidence of that. In support of its ruling, the court found that plaintiff’s ability to pay exceeded defendant’s. On the other hand, he found that defendant maintained unreasonable positions at trial and declined plaintiff’s offer to settle the case along lines similar to the court’s ultimate judgment (although the record does not reflect what the offers were). “I looked at the reasonableness and good faith positions advanced by the parties. Quite frankly, . . . I found in this case that wife . . . had unreasonable positions throughout and I think that’s the reason we’re here doing a trial . . . .”
Finally, the court found generally that defendant’s testimony was not “entirely credible,” although he stated, “I’m not saying that she wasn’t that she was being untruthful.” He referred to defendant’s lack of confidence in testifying how much money she received. He also dismissed as incredible her testimony that she had not reviewed the joint tax returns she signed. The court made no express findings regarding plaintiff’s credibility or the reasonableness of his positions, including his effort to enforce the prenuptial agreement and his assertions about his wife’s financial needs.
On appeal, defendant does not challenge the judge’s finding as to plaintiff’s base income. She argues that we should exercise original jurisdiction and convert the limited duration alimony award into a permanent award. Defendant also argues that the counsel fee award should be set aside because the court failed to apply the required factors.

III.

A.

We reverse the trial court’s alimony decision, which ignores well settled precedent that absent exceptional circumstances not present here, permanent alimony is appropriate in the case of a long-term marriage like that of the parties. Although trial courts are vested with discretion to determine the “fair and proper quantum of alimony,” Steneken v. Steneken, 183 N.J. 290, 303-04 (2004), we may vacate an alimony award if the “trial court clearly abused its discretion or failed to consider all of the controlling legal principles, or . . . the findings were mistaken or . . . the determination could not reasonably have been reached on sufficient[,] credible evidence present in the record.” Gonzales-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009).
We held that permanent alimony, not limited duration alimony, is the appropriate award in the case of a long-term marriage. Cox v. Cox, 335 N.J. Super. 465, 485 (App. Div. 2000). In Cox, the parties were married nineteen years before the complaint was filed. In this case, plaintiff filed his complaint two-and-a-half months before the parties’ nineteenth anniversary. “[T]he duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded.” Id. at 483. We cautioned that, consistent with statute, limited duration alimony is appropriate only if permanent alimony is not. We held:
Limited duration alimony is . . . [designed] to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.
[Id. at 476.]
See also N.J.S.A. 2A:34-23(c) (stating that limited duration alimony is appropriate only if permanent alimony is not).
This is not a borderline case involving a medium-length marriage. Compare Robertson v. Robertson, 381 N.J. Super. 199, 206-07 (App. Div. 2005) (affirming award of permanent alimony in case of twelve-year marriage) and Hughes v. Hughes, 311 N.J. Super. 15, 33 (App. Div. 1998) (“permanent alimony, but perhaps at some reduced rate to reflect a marriage of . . . medium length” in case of ten-year marriage before adoption of limited duration alimony statute), with Gonzalez-Posse, supra, 410 N.J. Super. at 356-57 (reversing trial court’s extension of limited duration alimony after ten-year marriage).
The parties’ marriage reflects even greater dependence than was present in Cox. Although the plaintiff in that case struggled to launch a legal career, she earned a college degree and law degree during the marriage. Since her child was in elementary school, she held various part-time jobs as a data entry clerk, bank teller, and cosmetics salesperson. At trial, her child-rearing responsibilities were significantly reduced, as the parties’ only child was already in college. Cox, supra, 335 N.J. Super. at 470-71. By contrast, defendant has no employment experience whatsoever. She dropped out of high school three grades short of graduation. She was unfamiliar with basic family finances. Her economic dependency on plaintiff pre-dated the marriage by five years.
The court was obliged to look to the “extent of actual economic dependency, not one’s status as a wife” in making its alimony decision. McGee v. McGee, 277 N.J. Super. 1, 14 (App. Div. 1994) (quoting Lynn v. Lynn, 91 N.J. 510, 517 (1982)) (court considered six-year-long pre-marital cohabitation). When viewed “from the vantage point of the shared enterprise of marriage beginning before the ceremonial act,” id. at 12, defendant’s case for permanent alimony is even more compelling.
The court’s review of the statutory factors was conclusory, and cursory. See Carter v. Carter, 318 N.J. Super. 34, 42 (App. Div. 1999) (stating that court “must adhere to the statutory requirement in every case”). We have “[n]aked conclusions” regarding the statutory factors. Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996); see also N.J.S.A. 2A:34-23c (requiring court to “make specific findings on the evidence about the above factors”). There also was no record evidence to support the court’s conclusion that defendant could immediately commence earning $384 a week.[3] There was inadequate recognition of defendant’s extreme dependence on plaintiff. In sum, the court provided no “clear statement of reasons,” which we held in Cox, supra, 335 N.J. Super. 483 was essential, to justify denial of permanent alimony.
Although the court apparently placed significant weight on defendant’s age — she was forty-four during trial — that does not outweigh the duration of the marriage and other factors supporting permanent alimony. Those factors included: defendant began her twenty-eight-year relationship with plaintiff when she was sixteen; her child-rearing responsibilities were continuing; she had contributed to plaintiff’s career, by caring for the children and maintaining the household; and she remained financially dependent on a husband whose rising incomes established an ability to pay.
In sum, the award of limited duration alimony here was inappropriate. We decline to exercise original jurisdiction as further fact-finding is necessary to resolve the matter. R. 2:10-5. See Cox, supra, 335 N.J. Super. at 485. Accordingly, we reverse and remand for reconsideration of the relevant statutory factors and the alimony award in light of our opinion.

B.

We are also compelled to vacate the trial court’s decision on counsel fees. The court’s power to award counsel fees derives from Rule 5:3-5 and N.J.S.A. 2A:34-23. The decision whether to award fees rests within the court’s sound discretion. Williams v. Williams, 59 N.J. 229, 233 (1971). However, we will reverse a fee award where the trial court has failed to address pertinent factors set forth in the rule. Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003).
Those factors include:
1. the financial circumstances of the parties;
2. the ability of the parties to pay their own fees or to contribute to the fees of the other party;
3. the reasonableness and good faith of the positions advanced by the parties;
4. the extent of the fees incurred by both parties;
5. any fees previously paid to counsel by each party;
6. any fees previously awarded;
7. the results obtained;
8. the degree to which fees were incurred to enforce existing orders or to compel discovery; and
9. any other factors bearing on the fairness of an award.
[Rule 5:3-5(c)]
All applications for counsel fees must also be supported by an affidavit of services. R. 4:42-9(b). In matrimonial actions, the certification must address what steps if any have been taken to pay the attorney’s fees in the future. R. 4:42-9(c).
We reverse the counsel fee award foremost because the court’s mistaken rejection of defendant’s permanent alimony claim tainted its assessment of “the reasonableness and good faith of the positions advanced by the parties,” and the “results obtained.” Defendant’s permanent alimony claim was reasonable and well-grounded. Had the court applied our prior decisions, defendant, not plaintiff, would have prevailed.
The court also failed to make specific findings about the extent of fees incurred by each party. No certification of fees was provided. The court also failed to assign any weight to plaintiff’s insistence upon litigating his claim to enforce a patently unenforceable prenuptial agreement.
On remand, the court must engage in a two-step analysis. The court must first review the requested fees for reasonableness. Second, the court shall determine the portion of the fee recoverable after applying the factors under Rule 5:3-5(c), RPC 1.5(a), and Rule 4:42-9(b). See Yueh v. Yueh, 329 N.J. Super. 447, 464-66 (App. Div. 2000) (matrimonial court must determine lodestar fee based on the reasonable number of hours and reasonable hourly rate); Argila v. Argila, 256 N.J. Super. 484, 493 (App. Div. 1992) (noting that in matrimonial actions “‘counsel must generally realize that he [or she] cannot always expect full compensation for the time so consumed'”)(citation omitted).

C.

Finally, we note that the judge who heard the case is now sitting in a different trial division. We do not question the sincerity of the court’s view of the merits. However, we direct that a different judge handle the case on remand, in light of the court’s characterization of defendant’s positions on alimony as unreasonable, and its expressed view of defendant’s credibility, coupled with the court’s failure to assess plaintiff’s credibility or to address plaintiff’s insistence to try to enforce the prenuptial agreement question. P.T. v. M.S., 325 N.J. Super. 193, 221 (App. Div. 1999) (remand to a new judge where trial judge stated that party’s attitude was chief obstacle to resolution).

Reversed and remanded

[1] Plaintiff’s counsel recognized at trial that the agreement was likely unenforceable. Yet, apparently to placate his client, he elicited testimony about it and offered it in evidence, requiring the court to rule on it.
[2] Plaintiff’s CIS valued his Disney holdings at $559, and his holdings in his employer’s stock at $13,861, but did not value his 40 shares in Manulife Financial which he received when his original life insurer merged with another insurer.
[3] We note that, historically, high school dropouts, particularly those beyond their mid-twenties, face the highest unemployment rates in our society. For example, in October 2010, the national unemployment rate for high school dropouts over twenty-five years of age was fifteen percent. //www.bls.gov/news.release/empsit.t04.htm. The trial judge also stated that he intended to impute the minimum wage, yet, the minimum wage in New Jersey in November 2010 was $7.25 an hour, which equates to $290 for a 40 hours week, or $15,080 for a 52-week year — not $20,000 a year.