Same-Sex Marriage and its relationship to Estate Planning and family law in Texas

In 2015 the Supreme Court of the United States issued the Obergefell decision which legalized same-sex marriage across all 50 states. This was a major recognition by the Supreme Court that people of the same sex had a right to marry under the United States Constitution. The effect of the decision has had impacts both on the social fabric of our country and on the law. Specifically, we have in mind areas related to family law and estate planning. While same-sex couples Immediately gained recognition for their marriages the decision opened several questions about how these folks wouldn’t go about living their lives.

If you are a person in a same-sex marriage, then the issuance of the recent Supreme Court decision in Dobbs likely caused you to consider the possibility that your marriage may become an issue left to state legislatures rather than being recognized as valid under the constitution on a federal level. This potential change has ramifications not only regarding your relationship with your spouse on a personal level but also on how the two of you have mapped out your lives as far as your family structure and planning.

In today’s blog post from the Law Office of Bryan Fagan, our attorneys would like to share with you some perspective and information on what the recent Supreme Court decision overruling Roe versus wade may tell us about the court’s intent to look more closely at prior decisions that involve what is known as substantive due process. Specifically, we would like to share with you some perspective on the Obergefell decision which validated same-sex marriage across the country in 2015. In a time where you may be concerned with the Supreme Court overruling that decision as well, it is no use simply worrying about any issue in doing nothing about it.

In a situation like this, we can imagine that you may feel like forces beyond your control are going into action and you can do little to nothing about it. While courts can and will act on their schedules and based on the legal analysis of justices, you can take certain actions on your own to learn about the basics of these decisions so that you can better make informed decisions in your own life. We hope that this blog post provides you with perspective and information where you can base real-life decisions on reality versus headlines on websites and the news.

Nobody can predict the future. You may find various news outlets or people who are confident in one way or the other in what will happen about several subjects that we discuss in today’s blog post. What matters most in your household is what is specific to you and your spouse. With that said, if you have questions about the material that we share in today’s blog post then please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. Our three Houston area locations are open to serve you and answer questions and give information about your life and your specific circumstances.

Same-sex marriage in Texas and its impact on Adoption

Once the Supreme Court found that same-sex couples have a right to marry under the United States constitution in Obergefell v. Hodges, Same-sex marriages across the country became recognized, and the door was opened for same-sex couples to marry. Not only does this carry with it significantly impacts on the personal and relational levels but a legal front, as well. Marriage can have a significant impact on how families plan in terms of retirement, estate planning, and health insurance and health care. In today’s blog post we will focus our attention on the legal aspects of gay marriage.

Earlier Supreme Court decisions allowed Texas same-sex couples to gain the right to federal benefits if one of the persons in the marriage was a federal employee. This includes things like Social Security benefits, Veterans Administration benefits, and health insurance and retirement benefits for same-sex spouses whose partners work for the federal government. Whatever benefits exist for spouses in traditional marriage have now been extended to same-sex couples, as well. This is significant in that across the country while in many states same-sex couples could marry there was not necessarily a guarantee or a right to take advantage of benefits under your or your spouse’s employer-based plans. That all changed this supreme court chose to both acknowledge same-sex marriage rights and issue favorable rulings on cases that sought to declare the right to marry lying only in opposite-sex couples.

When it comes to family-related issues for same-sex couples who are married in Texas one aspect of the discussion that is important to take note of is that same-sex couples may be interested in adopting children to complete their families. In Texas, any adult may file a petition to adopt a child. The basic requirements for adoption in Texas or that the person filing the petition for adoption must be at least 21 years old, be a citizen, a permanent resident, or another qualified alien, is financially able to meet the child’s basic material needs and is physically, mentally, and emotionally able to assume parenting responsibilities. These are the broad requirements that must be in place for you and your spouse to adopt a child in Texas if that is your wish.

Ultimately, the best interest standard will be applied when it comes to a court determining whether to grant a petition for adoption. The courts in Texas can technically utilize you’re being in the same-sex marriage against you when it comes to making best interest terminations regarding adoption. This is not to fearmonger or say that a court absolutely would use your same-sex relationship as grounds to deny an adoption petition. You can look around and see same-sex couples who have successfully adopted children. You may even know people who have been successful in adopting children who were also in a same-sex marriage.

But you also need to understand that nothing is stopping a Texas court from allowing evidence to be admitted into the record or testimony from occurring on the witness stand that relates to your sexuality and that of your partner. This could even happen in a Texas family law case like a divorce or child custody matter. Case law in Texas which points to this being a possibility is quite remote having occurred nearly 40 years ago, but it is something for you to be aware of as you plan the next steps in your family life. This is especially true if you plan to adopt A child or grow your family in that way.

Here is a hypothetical situation that may be able to better illustrate the point regarding the best interest of the child standard and decision-making for your family moving forward. Suppose that you are attempting to adopt A child with your same-sex spouse. During that process, the two of you have engaged with an adoption agency that caters to same-sex couples. Throughout this process, you all have worked 2 build relationships and are now at the point where you feel comfortable moving forward with the petition to adopt A specific child.

After filing a petition to adopt a child in hiring an experienced family law attorney to assist in that process it is possible that a family court judge could decide to not approve your adoption petition due to a belief that it is in the best interests of the child you seek to adopt to be placed with a couple in a traditional marriage. It is not as if a court would specifically state this in their reasoning, but courts would be able to do so given that same-sex parents lack certain protections under the law which can lead to discrimination in areas such as the adoption of a child.

Legal planning for same-sex couples in Texas

The critical areas where the federal recognition of same-sex marriage impacted couples most prominently were estate planning and end-of-life planning. When we consider this sort of emotional and hot-button topic, this sometimes dry and mundane world of estate planning usually does not come to mind immediately. Rather, we start to think about the more emotional and visceral areas of life like the relationship itself, marriage, and family life. However, planning for end-of-life scenarios is impacted by marriage and the decisions we make as adults.

Creating a will is something that all people over the age of 18 should find a way to do. This is something, as the attorneys with the Law Office of Bryan Fagan will tell all our clients, is something you should investigate no matter your level of wealth or your age. There are specific advantages for every person when it comes to creating a will based on you are stay in life. This is true no matter if you are wealthy or not. do not buy into the idea that only rich people draft wills. That is simply not true and could be a major mistake for you, your spouse, and your family if you fail to draft a will while you have the opportunity.

To be clear, a will is a legal document under which you can direct how your property will be distributed upon your death. This relates to real estate as well as personal property. Members of the same-sex community have gauged in estate planning for some time out of necessity. The Texas laws on intestate distribution apply to married couples. Before the time when marriage was recognized between gay couples in Texas estate planning was necessary to ensure that your partner would be able to receive your property after your death and vice versa.

Even now when same-sex marriage is legal in Texas it still makes a lot of sense for you and your spouse to have a will. Not only does having a will allow you to specify how you would like your property to be divided upon your debt it also allows for you and your spouse to make provisions that can determine who will care for your child in the event of your passing such as who will be a guardian for your child until he or she reaches the age of 18. It is much better to take advantage of the autonomy that you have on this subject rather than to allow a probate court judge to make decisions for you after your passing.

The simple truth is that you have an opportunity to make these decisions for yourself. However, since none of us know the time or date that we will pass on from this life it is best to strike while the iron is hot and create a bill for yourself now. The Law Office of Bryan Fagan can help you too not only perform estate planning steps but also draft your will alongside you. Our attorneys can help you to problem solve through difficult estate planning questions and help you arrive at solutions that will protect your present in the account for the future of your family, as well.

A question that you may have as someone who was in a same-sex marriage is what impact a future court ruling of the United States Supreme Court may have on the legitimacy of your will and that of your spouse. For instance, what if the Supreme Court were to overturn Obergefell this rendering your marriage invalid? While a Supreme Court decision would not invalidate your marriage, as a rule, it would return the issue to the individual states just as we saw in the recent Dobbs decision related to abortion. However, even as a Supreme Court decision would not specifically invalidate your marriage it is in our opinion, that Texas and our legislature would honor a same-sex marriage without a federal court decision forcing their hand.

If you and your spouse have previously had wills created, then at this time you may choose to do nothing specific in rather monitor the need for change as time goes on. Right now, there is nothing imminent in terms of the overturning of the federally recognized right for same-sex couples to marry. If you have a will that refers to your “spouse” then you likely don’t have to go out and change the will or create a new will. However, there is also nothing stopping you and your partner from creating wheels that do not reference your marriage if you have not yet created a will. Again, same-sex couples in your position have been drafting wheels for generations to protect themselves and their property.

One thing to keep in mind is that if there is any question about the legality of gay marriage in the future about your will then you should know that a probate court will seek to discern what the intent you had was in creating your will in certain provisions within the will. Regardless of whether your will refers to your partner as a spouse or not if your will is challenged the court will look to the plain language at the will and the circumstances of your life to determine your intent.

So, for example, if you refer to your spouse as such without naming him or her specifically and in the future, the marriage is no longer recognized then it is very possible that the court we’ll simply look to your intent and understand who you were trying to pass property onto even if he or she with no longer be your legal spouse under future changes in marriage laws.

1 way to potentially try and protect yourself and your spouse in the future from any changes in the law would be to state at the beginning of your will that you would like the same person to benefit from provisions in your will regardless of whether he or she is classified as your spouse in the future. The question that we must answer in Texas, should Obergefell be overruled, is whether that decision would apply retroactively to avoid marriage like your own. This would create a great deal of confusion and problems so it may not be the case. However, it is worth monitoring the situation to make informed decisions for yourself and your family.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

if you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law and estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about these areas of the law as well as how your family may be impacted by changes in various areas of the law now and in the future.

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Texas Appeals Court Upholds Alcohol Restriction in Divorce Decree

In dealing with Texas custody issues, courts must focus on the children’s best interest. Courts sometimes conclude that the best interest of the children requires certain restrictions on the parents when the children are in their care.  A father recently challenged a provision in the divorce decree prohibiting the parents from drinking at certain times.

Divorce Decree Prohibits Consumption of Alcohol

The parents’ divorce decree prohibited both parents from consuming alcohol while they had possession of the children or within 12 hours before their scheduled possession.  The father ultimately appealed this provision, arguing it was an abuse of the trial court’s discretion.

According to the appeals court’s opinion, there was evidence of the father’s regular excessive drinking.

 

The appeals court noted that the children’s best interests are the primary concern in issues involving possession and conservatorship.  Tex. Fam. Code Ann. § 153.002. Restrictions or limitations on the parent’s right to possession and access are limited to what is required to protect the children’s best interest. Tex. Fam. Code § 153.193.

The father framed the provision as an injunction and argued the court could only impose such a restriction if the traditional elements for a permanent injunction are met.  The appeals court noted, however, that previous cases from the Austin Court of Appeals, from which this appeal was transferred, focused on the child’s best interest in similar cases.  In the cases the appeals court considered, the Austin Court of appeals did not discuss or apply the traditional elements for a permanent injunction.

Appeals Court Finds “Ample Evidence” Supporting Injunction

The appeals court noted there was “ample evidence” in the record that would allow the trial court to reasonably conclude the father drank alcohol in the presence of the children and to excess.  There was evidence the father had operated motor vehicles after drinking or while intoxicated, brought the kids home with alcohol on his breath, averaged twelve to eighteen beers on Friday and Saturday nights, urinated on his daughter’s shoes on the floor, violated temporary orders prohibiting him from drinking when he had the children, and violating temporary orders requiring him to blow into an alcohol monitoring device.

The appeals court pointed out, however, there was little evidence that the father’s drinking had led to physical injury or harm to the children.  The mother testified she had been present to keep the children safe while the father was drinking.  The father stated he sometimes drank more because he knew the mother was there to take care of the children.  There was no evidence that the father would have another adult present to take care of the children if he drank while they were with him after the divorce.

The appeals court noted the father was not completely barred from drinking.  The provision only restricted consumption of alcohol when the children were in his possession or were scheduled to be in his possession within 12 hours.  The appeals court also pointed out that the restriction could be modified if there were a substantial and material change in circumstances.  Tex. Fam. Code Ann. § 156.101(a)(1).

Appeals Court Finds that Trial Court Could Preemptively Impose Injunction

The appeals court concluded that a trial court need not wait until a child has physically harmed to impose such a restriction.  The appeals court found the trial court “protect[ed] the children’s best interests in a nominally intrusive way.” There was no abuse of discretion.

The appeals court affirmed the trial court’s judgment.

In Matters of Custody, Ever Case is Unique – Call McClure Law Group to Assist with Yours Today

In this case, the court heard evidence of both the father’s overall drinking patterns and specific incidents, supporting restrictions on the parents’ drinking during and immediately before their possession of the children.  Under different facts, however, similar restrictions might not be required to protect the best interests of the children.  Custody matters are very fact specific.  If you have concerns about your spouse’s drinking or use of other substances, talk to a knowledgeable Texas custody attorney about your options.  Call McClure Law Group at 214.692.8200 to set up an appointment to discuss your case.

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Estate Planning for Pets

This is my dog, Jilly. She’s a 15-pound mutt my family adopted 11 years ago.

When we adopted her, we suspected she was a terrier mix, but she’s not. Several months ago, a DNA test revealed she’s a hodgepodge of a whole bunch of breeds: Pomeranian, American Eskimo, Chihuahua, Chinese Crested, Shetland Sheepdog, Poodle, and Pekinese…no terrier whatsoever!

I love this little dog. She sits beside me all day long as I work. Thunder scares her. She jumps in my lap when she hears the rumbles. And every night after our last walk, she dances in anticipation of receiving her favorite treat for being such a good girl.

Our pets are part of our families! So, it’s natural that we include them in our estate plans.

Estate planning for pets does not have to be complex. Although we think of pets as members of our family, the law classifies them as personal property. Therefore, it is possible to include a simple provision in your Will or Trust gifting your pet to the person who will be its caregiver.

Of course, don’t assume a friend or family member would be willing to care for your pets. Always talk to prospective caregivers to ensure they are willing to take on the responsibility. For example, my sister is an amazing pet mama. If my family were no longer around, she would be willing to provide a loving home for Jilly.

Also, because caring for a pet can be expensive, consider making a financial gift, along with your pet, to defray the costs of their care. This is especially true if your pet has special needs or is older. Like humans, animals with special needs or who are older require more veterinary care, which may make some caregivers reluctant to take on the financial burden.

Some people leave a fixed sum of money to the person who will be the pet’s caregiver. Others choose to create a pet trust. A pet trust allows you to choose an individual who will oversee funds earmarked for your pet’s care and make distributions to the caregiver for expenses such as food, veterinary care, medication, grooming, routine expenses, pet sitting, and the disposition of remains. You can even authorize your trustee to pay the caregiver a stipend.

Our furry friends rely on us for love and care. Estate planning ensures their needs will be met if we’re not around to care for them

The post Estate Planning for Pets appeared first on Rania Combs Law, PLLC.

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What is a Section 509(a)(3) Supporting Organization?

What is a Section 509(a)(3) Supporting Organization? Can a Section 501(c)(3) organization avoid private foundation status by supporting other than a charity, such as a Section 501(c)(6) organization?

Under Title 26 of the Internal Revenue Code, all organizations described in section 501(c)(3) are considered private foundations, unless one of four exceptions applies. See 26 U.S.C. § 509(a)-(a)(4) (defining “private foundation”).

Those exceptions are, briefly: (1) organizations described in 26 U.S.C. § 170(b)(1)(A) and to whom charitable contributions may be given; (2) publicly supported organizations, as described in paragraph (2) of section 509(a); (3) organizations organized and operated exclusively for the benefit of, to perform the functions of, or to carry out the purposes of one or more specified organizations described in paragraph (1) or (2) of section 509(a); and (4) an organization which is organized and operated exclusively for testing for public safety. See 26 U.S.C. § 509(a)-(a)(4).

This Freeman Law blog focuses on supporting organizations, being those described in paragraph (3) of section 509(a).

Section 509(a)(3)—Supporting Organization.

Section 509(a)(3) is an exception to private foundation status. Section 509(a)(3) describes an organization which:

(A) is organized, and at all times thereafter is operated, exclusively for the benefit of, to perform the functions of, or to carry out the purposes of one or more specified organizations described in paragraph (1) or (2) [of section 509(a)],

(B) is—

(i) operated, supervised, or controlled by one or more organizations described in paragraph (1) or (2) [of section 509(a)],

(ii) supervised or controlled in connection with one or more such organizations, or

(iii) operated in connection with one or more such organizations, and

(C) is not controlled directly or indirectly by one or more disqualified persons (as defined in section 4946) other than foundation managers and other than one or more organizations described in paragraph (1) or (2) [of section 509(a)][.] . . .

For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an organization described in section 501(c)(4), (5), or (6) which would be described in paragraph (2) if it were an organization described in section 501(c)(3).

26 U.S.C. § 509(a)(3)-(a)(3)(C) (emphasis added).

Thus, pursuant to the flush language of section 509(a)(3), supporting organization status is available where the supported organization is organized as described by section 501(c)(6) of the Code, provided (1) that the supporting organization meets the requirements of subsections (A), (B), and (C) of section 509(a)(3), and (2) the supported 501(c)(6) organization meets the requirements of section 509(a)(2).

Requirement of Qualified Supported Organization.

To qualify as a supported organization for purposes of a supporting organization’s qualification under section 509(a)(3), the supported organization must be organized as described in paragraph (1) or (2) of section 509(a).

Paragraph (1) describes organizations that are referenced in subsections (i) through (ix) of section 170(b)(1)(A) of the Code, although organizations described in subsection (vii) and (viii) are excluded from the qualification under section 509(a)(3). See 26 U.S.C. § 509(a)(1); id. at § 170(b)(1)(A)-(b)(1)(A)(ix).

Paragraph (2) of section 509(a) describes an organization which

(A) normally receives more than one-third of its support in each taxable year from any combination of—

(i) gifts, grants, contributions, or membership fees, and

(ii) gross receipts from admissions, sales of merchandise, performance of services, or furnishing of facilities, in an activity which is not an unrelated trade or business (within the meaning of section 513–See Freeman Law 3-Part Series Blog on Tax-Exemption and Unrelated Business Income), not including such receipts from any person, or from any bureau or similar agency of a governmental unit (as described in section 170(c)(1)), in any taxable year to the extent such receipts exceed the greater of $5,000 or 1 percent of the organization’s support in such taxable year,

from persons other than disqualified persons (as defined in section 4946) with respect to the organization, from governmental units described in section 170(c)(1), or from organizations described in section 170(b)(1)(A) (other than in clauses (vii) and (viii)), and

(B) normally receives not more than one-third of its support in each taxable year from the sum of—

(i) gross investment income (as defined in subsection (e)) and

(ii) the excess (if any) of the amount of the unrelated business taxable income (as defined in section 512) over the amount of the tax imposed by section 511[.]

26 U.S.C. § 509(a)(2)-(a)(2)(B)(ii); see id. at § 509(a)(3) (flush language) (“For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an organization described in section 501(c) . . . (6) which would be described in paragraph (2) if it were an organization described in section 501(c)(3).”).

If an existing organization qualified as a public charity pursuant to section 509(a)(2) desires to reclassify itself as a supporting organization under section 509(a)(3), the applying organization, in its application for reclassification, must show that the supported organization—whether it be organized as described in 501(c)(3), (4), (5), or (6)—meets and is expected to continue to meet the public support test requirements of section 509(a)(2). Evidence of these requirements may form part of the applying organization’s proforma schedule D from the IRS Form 1023 Application for Recognition of Exemption in support of the Form 8940 Request for Miscellaneous Determination.

Requirement – Section 509(a)(3)(A)—Organizational / Operational Tests.

To qualify as a supporting organization under section 509(a)(3), the supporting organization must be “organized, and at all times thereafter is operated, exclusively for the benefit of, to perform the functions of, or to carry out the purposes of one or more specified organizations described in paragraph (1) or (2) [of section 509(a)][.]” See 26 U.S.C. § 509(a)(3)(A).

Organizational Test.

The Treasury Regulations provide as follows with respect to the organizational requirements of section 509(a)(3) of the Code:

An organization is organized exclusively for one or more of the purposes specified in section 509(a)(3)(A) only if its articles of organization . . . :

(i) Limit the purposes of such organization to one or more of the purposes set forth in section 509(a)(3)(A);

(ii) Do not expressly empower the organization to engage in activities which are not in furtherance of the purposes referred to in subdivision (i) of this subparagraph;

(iii) State the specified publicly supported organizations on whose behalf such organization is to be operated (within the meaning of paragraph (d) of this section); and

(iv) Do not expressly empower the organization to operate to support or benefit any organization other than the specified publicly supported organizations referred to in subdivision (iii) of this subparagraph.

26 C.F.R. § 1.509(a)-4(c)(1)-(c)(iv).

If the organization by which the supporting organization is operated, supervised, or controlled is a publicly supported section 501(c)(4), (5) or (6) organization, the supporting organization will be considered as meeting the organizational requirements of section 509(a)(3)(A) if the supporting organization’s articles require it to carry on charitable, educational, religious, etc. activities within the meaning of section 170(c)(2) of the Code. 26 C.F.R. § 1.509(a)-4(c)(2).

Operational Test.

The supporting organization will be regarded as operated exclusively to support a specified publicly supported organizations only if the supporting organization engages “solely in activities which support or benefit the specified publicly supported organizations.” 26 C.F.R. § 1.509(a)-4(e)(1)-(2) (identifying permissible beneficiaries and permissible activities for the supporting organization).

An organization will not be regarded as operated exclusively if any part of its activities is in furtherance of a purpose other than supporting or benefiting the specified publicly supported organization.

The supporting organization may maintain tax-exemption pursuant to section 501(c)(3) if its assets are used primarily to support the qualified supported organization’s charitable, educational, religious, etc. activities within the meaning of section 170(c)(2) of the Code. See 26 C.F.R. § 1.509(a)-4(c)(2); id. at § 1.501(c)(3)-1(c)(1) (“An organization will be regarded as operated exclusively for one or more exempt purposes only if it engages primarily in activities which accomplish one or more of such exempt purposes specified in section 501(c)(3). An organization will not be so regarded if more than an insubstantial part of its activities is not in furtherance of an exempt purpose.”).

Requirement – Section 509(a)(3)(B)—Control or “In Connection With” Test.

Another requirement to qualify as a supporting organization under section 509(a)(3) is that the supporting organization must be:

(i) operated, supervised, or controlled by one or more organizations described in paragraph (1) or (2) [of section 509(a)],

(ii) supervised or controlled in connection with one or more such organizations, or

(iii) operated in connection with one or more such organizations[.]

See 26 U.S.C. § 509(a)(3)(B); 26 C.F.R. § 1.509(a)-4(f)(1)-(2).

For any of these relationships, the arrangement must insure that: (i) the supporting organization will be responsive to the needs of demands of the publicly supported organization; and (ii) the supporting organization will constitute an integral part of, or maintain a significant involvement in, the operations of the publicly supported organizations. See 26 C.F.R. § 1.509(a)-4(f)(3).

Type I – Operated, supervised, or controlled by a Supported Organization.

The distinguishing feature of this type of relationship is the presence of a substantial degree of direction by the publicly supported organizations over the conduct of the supporting organization. See 26 C.F.R. § 1.509(a)-4(g). A Type I relationship requires a substantial degree of direction over the policies, programs, and activities of the supporting organization by the publicly supported organizations. This relationship is established by the fact that a majority of the officers, directors, or trustees of the supporting organization are appointed or elected by the governing body or officers of the publicly supported organization.

An organization may qualify as a Type I organization even though its governing body is not comprised of representatives of the specified publicly supported organizations for whose benefit the supporting organization is operated.

Type II – Supervised or controlled in connection with a Supported Organization.

The distinguishing feature of this type of relationship is the presence of common supervision or control among the governing bodies of all organizations involved, such as the presence of common directors. See 26 C.F.R. § 1.509(a)-4(h).

[T]here must be common supervision or control by the persons supervising or controlling both the supporting organization and the publicly supported organizations to insure that the supporting organization will be responsive to the needs and requirements of the publicly supported organizations. Therefore, in order to meet such requirement, the control or management of the supporting organization must be vested in the same persons that control or manage the publicly supported organizations.

Id.

Type III – Operated in connection with a Supported Organization.

The distinguishing feature of this type of relationship is that the supporting organization is responsive to, and significantly involved in the operations of, the publicly supported organization. See 26 C.F.R. § 1.509(a)-4(i). The Type III organization must satisfy a notification requirement, a responsive test, and an integral part test (either functionally integrated or non-functionally integrated) set forth in section 1.509(a)-4(i) of the Treasury Regulations. The details of that qualification are too great for this already-verbose blog.

Example of Type I Supporting Organization.

With some exceptions, the publicly supported organization must be identified in the supporting organization’s articles of organization. See 26 C.F.R. § 1.509(a)-4(d)(1). And, there is a unique limitation on contributions that a supporting organization may receive. See id. at § 1.509(a)-4(f)(5)(A)(i) (prohibiting contributions from controlling donors).

To qualify as a supporting organization, an example of a purposes statement for inclusion in articles of organization is set forth below:

*******************

SUPPORTING ORG is organized and operated as a nonprofit corporation pursuant to the laws of the State of _________ and a Type I supporting organization pursuant to section 509(a)(3) of the Internal Revenue Code. In this regard, SUPPORTING ORG is organized, and at all times shall be operated, exclusively for the benefit of, to perform the qualified charitable or educational functions (within the meaning of section 170(c)(2) of the Internal Revenue Code) of, or to carry out the qualified charitable or educational purposes of QUALIFIED SUPPORTED ORG, a ______________ corporation/organization and a publicly supported organization as described in paragraph (2) of section 509(a) of the Internal Revenue Code.

SUPPORTING ORG’s operations, activities and assets are dedicated exclusively to carry on qualified charitable and educational functions and activities (within the meaning of section 170(c)(2) of the Internal Revenue Code) for, or for the benefit of the SUPPORTED ORG.

Subject to any limitations prescribed by the Internal Revenue Code with regard to SUPPORTING ORG as a Type I supporting organization, SUPPORTING ORG is authorized to receive property by contributions, gifts, bequests or any other legal means, and to invest and reinvest the same, and to apply the income and principle thereof, as SUPPORTING ORG may from time to time determine, for the purposes outlined in these articles of organization.

*******************

The statutory requirements also provide that the articles of organization shall not expressly empower the organization to engage in activities which are not in furtherance of the purposes referenced in subsection (3)(A) of section 509(a), that is, organized “exclusively for the benefit of, to perform the functions of, or to carry out the purposes” of the specified publicly supported organization.

The articles of organization should also dovetail with the governance control required by the Code and Treasury Regulations, which can be achieved by carefully crated articles or bylaws provisions. One example is as follows:

The affairs of SUPPORTING ORG shall be managed by a Board of Directors. The Board of Directors will be constituted by Directors. The specific number of Directors to serve on the Board of Directors, the qualifications, terms of office, manner of appointment, place, and notice of meetings, and the powers and duties of Directors shall be such as are prescribed by the Bylaws of SUPPORTING ORG; provided, however, at all times at least a majority of the Directors of SUPPORTING ORG’s Board of Directors shall consist of Directors who are the designated, ex officio officers of SUPPORTED ORG or are appointed by SUPPORTED ORG’s Board of Directors or officers.

The Supporting Organization’s Bylaws.

The supporting organization’s bylaws should dovetail neatly with the articles of organization designed to qualify the organization pursuant to section 509(a)(3). The objectives of the organization, as stated in the bylaws, should correspond with the purposes stated in the articles of organization. The bylaws should accommodate the “supported-organization-control” required over the decision-makers of the supporting organization. As noted above, a Type I relationship requires a substantial degree of direction over the policies, programs, and activities of the supporting organization by the publicly supported organizations. According to the Treasury Regulations, this relationship is established by the fact that a majority of the officers or directors of SUPPORTING ORG are appointed or elected by the governing body or officers of SUPPORTED ORG. See 26 C.F.R. § 1.509(a)-4(g).

One way to capture this requirement is to confirm in the bylaws—and to put into practice—a requirement that at all times at least a majority of the directors of SUPPORTING ORG’s board of directors shall consist of directors who are the designated, ex officio officers of SUPPORTED ORG or are appointed by SUPPORTED ORG’s board of directors or officers.

Insights. Section 509(a)(3) offers opportunity for organizations desiring to exist without the burdens of private foundation status and exclusively to support one or more organizations described in section 509(a)(1) or (2) of the Code, including the charitable, etc. functions of organizations organized pursuant to sections 501(c)(4), (5), or (6). The “tax-devil” is in the details, and it is advisable to get the organizational structure right on the front end to avoid tax consequences to the supporting organization or its management in their support of another presumably qualified supported organization.

The post What is a Section 509(a)(3) Supporting Organization? appeared first on Freeman Law.

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Legal issues that can arise after your divorce is final

Finalizing a divorce can take an incredible amount of work and time. It is indeed a milestone worth acknowledging, but it is crucial to know that legal issues can still crop up after the court grants your divorce.

Custody and support modifications

Things change over time, and the agreements you reach in your divorce may not hold up over time. If you have child support, custody or spousal support orders in place, they may require review and modification.

Often, post-divorce modifications are appropriate when there are substantial changes in your circumstances. Some examples of this might include:

• Job loss
• Relocation
• Remarriage
• Serious illness
• Acts of family violence
• Changes in a child’s preference or needs
• Changes in a parent’s capabilities

These scenarios could necessitate changes so that a court order remains fair and aligns with individuals’ best interests.

Enforcement actions

If you or your ex is not complying with court orders after divorce, there can be harsh legal consequences. 

For instance, failing to pay child or spousal support can result in aggressive enforcement actions, such as: 

• License suspensions
• Liens
• Financial penalties
• Contempt of court

There are also consequences for non-compliance with property division elements of a divorce decree, such as failing to sell something or deliver property. Under these circumstances, Texas laws permit enforcement actions, including lawsuits, damages and motions for contempt.

Remarriage and relocation

In some cases, getting remarried or moving may not have any impact on an ex. However, if you share a child or pay or receive spousal support, there could be legal issues that you must address.

Remarriage could trigger the end of a spousal support arrangement. And if you or your ex wants to relocate with your child, the relocating party typically must get permission from the other parent or the courts before doing so. 

In other words, life events can have legal implications if you and your ex are still connected through support or your children.

Prepare for life after divorce

Knowing that these issues may arise can minimize the unpleasantness of a surprise. It can also help you prepare accordingly. Anticipating these and other potential matters affords you the opportunity to get organized and retain information that could prove to be valuable in the future.

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Former State Bar of Texas President Randy Sorrels named 2022 Trial Lawyer of the Year by Texas Chapter of ABOTA

Former State Bar of Texas President and Houston attorney Randy Sorrels has been named the 2022 Trial Lawyer of the Year by the Texas Chapter of the American Board of Trial Advocates, or TEX-ABOTA.

“This is one of the highlights of my career, and I am thankful to TEX-ABOTA, my partner and wife, Alex, as well as the other attorneys and team members at Sorrels Law,” said Sorrels, who served as 2019-2020 State Bar of Texas president and is the co-founder of his firm, Sorrels Law, in a press release.

The Trial Lawyer of the Year award is presented to a lawyer who has shown excellence in advocacy, holds a superb reputation of ethics, has achieved outstanding recent results, maintains service to ABOTA, and exemplifies its ideals. The mission of ABOTA is the preservation of the right to trial by jury guaranteed by the 7th Amendment to the U.S. Constitution, the independence of the judiciary, and civics education.

Over the past 18 months, Sorrels and his firm have secured three significant jury verdicts for injured clients, including the largest actual damages verdict in U.S. history for an injured worker in a contested trial, totaling $352.7 million. Sorrels Law staffs 10 full-time lawyers and includes a medical malpractice specialty group, a maritime group, a personal injury group, and a commercial litigation group.

“We have more work to do for our clients and hope the next 18 months are even better than the first 18 months,” Sorrels said in a press release.

Sorrels, who is certified in personal injury trial law and civil trial law by the Texas Board of Legal Specialization, is also past president of the Houston Bar Association and a past president of the Texas Association of Civil Trial and Appellate Specialists. He has been named the Lawyer of the Year in Personal Injury Litigation for Plaintiffs in Houston for 2022.

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End of Summer Possession and Transitioning to School Year Possession Schedules

It happens every single year without fail. what at one time seemed like an endless parade of long days and poolside enjoyment has now transitioned into the reality that summer cannot last forever. All the fun, leisure activities that you and your family took part in during the summer months are going to soon be in memory. What takes their place is a realization that summer is over, and another school year is fast approaching. While most every family with children in our area he’s staring this reality down in truth the circumstances for you and your family may be quite different Dan for those of the families around you.

Specifically, if you and your family have child custody orders in place from a family court then you all need to contend with the realities that come with raising children in separate households from either parent. Just summer months in terms of visitation are unique in that you and your Co-parent see your children on a different schedule. Namely, whereas during the school year you all may become accustomed to the first, 3rd, and 5th weekends of each month visitation for the non-custodial parent the summertime sees 30 days of nearly uninterrupted possession for that parent. This can be a significant contrast and change for families such as yours.

A typical situation would be one where your child, fresh off an extended stay with his or her father at his home for July is now having to quickly transition into two a school year possession schedule. As school districts modify and change, they’re beginning dates for school this transition may come sooner than expected at least from an emotional perspective. Children tend to do better in circumstances where they can have predictability and stability. Even if you and your Co-parent have been clear with your children about what a possession schedule looks like for them now and in the future, you can only do so much to keep them aware of what is happening. After all: their children and kids tend to lose track of schedules. That is what we are here for as adults. To keep them stable and help them maximize the time that they have with either of their parents.

One of the most important aspects of school your possession is the ability for your parent and yourself to be able to have as much time with your children as possible. For today’s blog post I am going to be riding about your circumstances assuming that you have something like a standard possession order, extended standard possession order, or some possession schedule based on a standard possession order. We will do this because it is the most familiar possession of schedule 4 families in our area and one where I think there will be quite a bit of common ground among any of you reading this blog post.

The difficulty associated with Transitioning back into a school year type of possession is that while the school year fast approaches it is not as if activities for the children have come to an end. Many extracurriculars that your children may have joined during the summer we still have events and activities throughout August and even into September. Sports leagues, church activities, family get-togethers such as family reunions, and things of this nature do not suddenly come to a stop just because the middle of August rolls around. Rather, you are in a position now where you and your Co-parent need to be able to artfully maneuver between responsibilities to your children as far as easing them back into a school year schedule and putting them in a position where they can still enjoy the last few weeks of summer possession and summer activities.

In today’s blog posts from the Law Office of Bryan Fagan, we would like to share with you some tips and information on how to handle end-of-summer possession and the transitioning into a new school year. The reality is that for every family reading this blog post your life and circumstances may vary from what we are going to talk about in today’s blog post. There is nothing wrong with this and in many ways, it is to be expected. However, what you need as far as information is concerned may not be found in this blog post.

If that is what you find after reading the blog post today, then I certainly recommend that you reach out to the attorneys with the Law Office of Bryan Fagan. When you contact our office, you can arrange for a free-of-charge consultation with one of our experienced family law attorneys. Our attorneys will work with you to set up a consultation at your convenience either in person at one of our three Houston area locations, over the phone, or via video. These consultations are a great way for you to learn not only information about the world of Texas family law but how that world of Texas family law interacts with you and your family gave your specific circumstances.

Getting your kids back on track for a productive school year

When negotiating your way through a Texas child custody or divorce case when it comes to subjects related to your children it can sometimes be tempting to assume that the kids will always land on their feet and always be able to manage the difficult circumstances. We hear time and again that children are resilient and otherwise capable of handling major changes and transitions. While this may be true for some of your families for others of you the exact opposite may be true. As a result, different families need to pay attention to these transition periods with greater attention than others. When we talk about the transition from summertime visitation into schoolyear possession this is probably the most give me a forget one that you and your children will go through during the year. There is a major difference all the way around when it comes to summertime possession and school year possession.

For one, while we as adults have more predictable schedules due to work your children are likely able to take a bit of a breather during the summer due to their not having to wake up to go to school every day. As a result, their body clocks may be telling them that this summer is quite over yet even though it truly is. As a result, you can help your kids by showing them how to adjust back to a school year schedule. I can remember one thing that my mom always did with my sister and me growing up was to get us back on a schedule of waking up at an earlier hour a week or two before the school year started. This would very quickly help us to get re-acclimated to the school year routine regarding earlier hours and accountability.

Next, one of the major components of a child going back to school is the stress that doing so puts on the child’s body. By this, I don’t mean that your child is going to be nervous or pacing their room during the night before school begins. Rather, I simply mean that your child’s body will undergo natural amounts of stress because of being in a different place than they were for the entirety of the summer. Shifting back and forth in between classes, socializing with friends, participating in sports, and things of that nature may be things that your child did not engage in much during the summer. As a result, the school year may see your child go through a bit of a stressful time as he or she relearns how to perform these activities. Many children can perform this transition with ease while others take a bit more time. The older your children get the more readily you will learn what their specific needs are so that you can better anticipate them.

Overall, going back to school for many children is one of the most exciting times of the year. The summer months can be somewhat slow for some children in the school year is a welcome change to get back into their routines. However, for other children, the summer can be a welcome relief from this year if the child struggles with classes or socializing. It makes a great deal of sense for you to talk with your children about any concerns that they may have. For children who or not as willing to share their thoughts or concerns, it may be that you must work with the two open talks to you about the issues in their lives. Setting aside some quiet time for you in that child is critical.

For instance, you could have time to sit down with a child and speak to him or her about their thoughts on the school year and how the summer went. Every so often I like to do this even with my kids even though my wife and I are married. Just letting the kids talk to you in a consequence-free environment can show you a great deal as far as where their mines are headed as you begin the school year. it can mean a lot to a child for you to take the time to discuss their life with them even during a busy transition.

The differences between summer in school year possession for Texas families

Some of the major differences between the school year and summertime visitation and possession with your children all that there is simply more time in the car for your kids during the school year and there is during the summer. For example, we just finished discussing how the month of July is typically an extended period of possession for the non-primary parent. If that parent is used, then you probably had some fun experiences with your child being able to have vacations and other fun activities that you otherwise would not get during the school year. What the summertime oftentimes ends up representing for the non-primary parent is the time of year when you will be able to make up for a lost time, so to speak during the school year.

While I have never exactly sat down and calculated the time out to the day or hour, I expect that the primary conservator of children under a standard possession order probably has the kids for 55% of the time during a given year. However, during the school year that percentage shoots up to be much higher in most cases. As a result, you can expect that the school year will have you seeing your children less than you did during the summer. This in and of itself can be a major transition for parents. Additionally, you may need to work with your children to prepare them for these changes as well. You can help them to understand that even though your children will be seeing you less during the school year that doesn’t mean that you cannot still have meaningful time together. paragraph depending on the specific month that you were discussing, you and your children may be able to spend more time together than in other months. For example, the mother of August or September may find you and a physician where you can spend the first third, and 5th weekends of the month with your children.

On the other hand, in other months of the year, we’ll only have four weekends that month as a result, you will not be able to spend as much time with your kids during that time. This is an important aspect of planning and calendaring both as you transition into your post-divorce or child custody Mike as well as when you negotiate through a case in the first place. You should take the time to consider the challenges and opportunities presented to you in any possession schedule that is negotiated by you and your Co-parent. I like to spend time with clients before mediation going through each option four possession so that he or they can see the exact number of days they will be able to spend with their children. This can make a big difference as far as how you negotiate with your Co-parent in the mediation itself.

another subject that bears mention in this context is regarding working together with your coherent on temporary modifications to the position schedule based on the changing circumstances of your family. Without fail, your kids will either become ill, injured, or otherwise unable to come over for visitation periods or other events. With that in mind, it helps a great deal for you and your Co-parent to be able to work together to make temporary modifications to your possession schedule to account for these issues. It is much better for your children and for you all to be able to work these things out together as a team rather than having to rely upon a mediator or other third party to assist in facilitating those conversations.

I would recommend that you and your Co-parent speak with one another before the school year begins to discuss any concerns that you all may have regarding the upcoming school year. Being able to discuss how you are going to coordinate your efforts on schoolwork, discipline, and consistency across your homes there’s a challenge that almost every family in your position faces as you head into another school year. Your children will immediately pick up on any inconsistencies in how homework and discipline are approached in the two of your homes. If there is any way for the two of you to get on the same page as far as these subjects are concerned, then you will be in a much better position heading into the new school year.

More than anything else, it is important for you and your Co-parent to be able to have some grace with one another when it comes to handling this period Of transition. It is not always easy for children or parents to immediately snap back into attention when it comes to school year visitation and possession versus what was experienced during the summer months. If the two of you can set aside your differences and work together as a team to contribute positively to the life of your children, then you will be all better off for having done so. Something as simple as sharing an online calendar that both of you can access and edit can help to eliminate confusion and increase the dialogue the two of you have with one another period

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan 

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations in person at our three Houston area locations, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.

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