Divorce Fiduciary Audit™ evaluates community and or separate property accounts and assets which may require a fiduciary duty whether by a spouse or third party such as a stockbroker, trust company, corporate trustee, investment adviser, financial planner, broker dealer, private equity or hedge fund, foreign or off shore bank / trust company. Breach of fiduciary duty can impair (besides conceal) community assets and or separate property.
These are the “FIDUCIARY ACCOUNTS”
- ALL trust accounts;
- ALL IRA, IRA Rollover, 401K rollover accounts;
- ALL private, corporate ERISA Qualified pension plan, 401k plan accounts;
- ALL public employees’ (state, county, city, agency – fire, police) pension plan accounts;
- ALL union (Taft – Hartley Act), collective bargaining or multi – employer pension plan accounts;
- ALL non-profits, foundations and endowment accounts, and their 403b plans
- HOA Homeowners Association Capital / Reserve investment accounts.
The community property (or separate property) in divorce often contains one or more of these “fiduciary accounts”. Further ANY type of asset, investment, life insurance or annuity in these accounts above is covered too.
Divorce Fiduciary Audit™ tracing may fail to connect the elements of a fiduciary standard of care or relationships implicit when a spouse is self-employed, has a family or closely-held business, partnership, family limited partnership (FLP), LLP or LLC. The nature of creative projects and cross licensing common in the music, film, theatrical and digital rights business including musicians, artists, authors, screenwriters, directors, production and loan out companies producers and video game designers and developers pose more complexity. Health care professional’s corporations pose similar investigative challenges including medical doctors, dentists, veterinarians and therapists.
For California divorce, a Duffy Analysis™ helps to spot breach of marital fiduciary duty including, but not limited to, when either spouse works in banking, finance, securities, investment or insurance related field such as stockbroker, financial planner, insurance agent, certified financial planner, financial analyst, securities research analyst, investment adviser, portfolio manager, hedge fund manager, investment banker, securities trader or executive therein. Or when a spouse holds or uses a business credential like MBA.
The Pepperdine University, Graziadio Business Review states: “Ignoring fiduciary responsibilities is risky business for family business owners/partners. They could be subjected to significant punitive damage claims from the other family member partners or from the non-partner spouse who can claim under community property statutes.”
Trusts and ERISA qualified plans must address the interests of beneficiaries or plan participants; usually a spouse, then children and/or other dependents. Charitable, not-for-profit organizations, known as IRS section 501c-3 tax exempt entities appear increasingly as beneficiaries of family, charitable trusts and or IRA accounts.
Divorce Fiduciary Audit™ examines potential connections to community property when a spouse controls, influences, acts as or is named trustee of a family trust, 2nd family trusts (as in the Dodger’s Murdoch divorce) an ERISA (defined benefit pension, profit sharing, 401k), 403b, 457 plan, union, collective bargaining, multi-employer, Taft-Hartley Act (union, multi-employer pension benefit retirement plan) or public (State, County, city or agency thereof) pension and retirement benefit or supplemental benefit and welfare plan.
The McCourt divorce case shows the need to consider a Divorce Fiduciary Audit™ pre-filing, helping to avoid unwanted publicity (and potential diminution of assets) when airing confidential marital agreements. A Huffington Post article about the McCourt divorce in Los Angeles is here.
Tip for attorney’s consideration – before drawing up a Pre-Nuptial Agreement, Post-Nuptial Agreement or QDRO (Qualified Domestic Relations Order) first review any spouse-controlled community property, bank accounts (including off-shore), trust interests, ERISA qualified plan, family foundation or endowment assets, accounts or investments for potential conflicts or breach of fiduciary duty as well as any and all board memberships or trustee responsibilities (plus connections to aging parents or other family members). A review of any of the above accounts which blindly assumes absence of conflicts of interest, fiduciary compliance, proper accounting or asset performance likely shortchanges both parties, their children and or named charities.
It is still uncommon to find a fully compliant fiduciary so to expect or assume a non-professional knows the duties owed, leads unfortunately to improper withdrawals, unauthorized trades, transactions, un-repaid or undocumented loans, speculative investments; and fraud, ERISA prohibited transactions and or self-dealing represent a potential theft or diminution of trust, pension plan, community or separate property assets.
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