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Both my Mom/step-father suffer from Alzheimer's. In AZ, community property State, co-mingled income is 50-50 and the spouse receiving more $ must give to spouse who gets less $ so it is 50-50. I am trying to force my step-sister to pay the income to follow State guidelines. My attorney says that if I ask for this, since their income is retirement it is "protected". I disagree as it is only "protected" if BK is filed. Attorney says that step-sister can get a legal separation or divorce for her father to protect his income. She does not want to pay the 50-50 income because daddy is not on the deed to the house. Their income has been co-mingled for 24 yrs which means ALL OF THE BILLS have been paid from a single account. Utilities, lawn, pool. Since daddy will not receive any monetary gain should Mom die 1st, step-sister feels that daddy doesn't have to keep paying 50% of these bills. How can she force a legal separation or divorce so she protects his income? This same step-sister stole 75% of the $$ from the account and her attorney has FINALLY admitted step-sister should not have done what she did and how she did it. Since AZ is Community property State, I expect the 50-50 income division whether her father is or is not on the deed. Mom got the house when my dad divorced her so it is sole/separate from the marriage. Step-father had a roof over his head etc for 25 yrs, so why or how can a divorce be forced on 2 people who can't understand what is happening. Step-sister is not Guardian, I am for Mom which in AZ makes me Guardian for step-father because they live in AZ and married.


Does this make sense?

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I’m going to approach this differently..... force StepSis hand and file for the divorce first & place a freeze / pull in any margin calls on any investments and freeze income as a part of the divorce discovery / proceedings. If we are abt to enter a bear market - which it’s looking up to be - his daughter is going to come unglued when their investments get halved or worse in a bear; your mom should be ok as she’s got the house which I assume is owned outright by her so she can ride out the losses better than he can. The house should be it’s own unemcumbered island, outside of any discussion on division of assets, and it’s not something you and StepSis should be hashing out, it’s divorce atty work. Really it sounds like they both could / should be in a facility (AL or NH) and if so getting divorced now could be ideal. You want your mom to file first.

Cleave it now so you never ever have to deal with him or his family anymore; if your mom should predecease him then your stuck dealing with him and his brood for years to come and your way waaaay not going to be happy..... She will be are a constant PIA. Your court appointed guardian for your mom, so you have a great deal of power to get access to all their financials, as everything was commmingled, which his side doesn’t. I’d suggest you find a real pit bull of a divorce atty - ask around there’s probably several in AZ - pluck down the retainer & let them get started on discovery. A good divorce atty will have forensic accountant delve into all and it can be used to debit against his “share”. You have got to stand back and let your mom’s divorce attorney do their job, though, it won’t be easy if it’s a bear 2019 & they have $ in the market. Santa bear is like down 400+ as I type this, it’s gonna be ugly...

Regarding income being “protected”, it’s my understanding (& a forever thank you to VegasLady on this info in detail) that whether or not it’s “protected” depends on
- the source of income (SS, federal/civil service retirement)
- who the creditors are
- secure vs unsecured debt
If a super-creditor (IRS, state taxing authority) is owed, its unprotected, even your SSA or other retirement income. IRS can & will do an attachment. But SS is protected income from other creditors, even if they have a judgement on you or you do BK, SS cannot be attached.
If something has securitized lending, like house or car, the lender does a repo or foreclosure. Income not a factor.
Spousal support is a grey area, as it’s usually by an understanding/ unwritten agreement unless there was a prenup done. “Protected” income - to me - does not mean it has to be split 50/50, “protected” is about its ability to be seized or attached by a creditors.

It’s my understanding that Community property / community income & assets matters if they are getting lending or getting a divorce or settling probate, it’s not a factor in spousal support unless there’s a court order. It’s one reason why you want a freeze on all while divorce process is underway; to protect assets ahead of court order. Really it’s something for you to clarify with the divorce atty. Again it’s for the atty to deal with in speaking with step sister.

For any “at need” program, like LTC NH Medicaid, only the applicants income is looked at for eligibility but all their assets as both a couple or individually are looked at for eligibility. If income isn’t fully spent within the month received, it becomes an asset. Your mom - it sounds like - has way too much $ to likely ever get to be eligible for an “at need” program.
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Reply to igloo572
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IMO, if they can't make decisions they can't get divorced. If you r going thru this to protect their money from Medicaid be careful.
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Reply to JoAnn29
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Ssorry if I sounded rude, but I have been talking with attorneys because I thought I'd be going through this with my siblings, not an additional 4. Attorney said that step-sibling will try the protected income since it is retirement, which under the Law is only protected if BK is filed. Creditors cannot go after retirement funds. Only way to do this is legal separation or divorce. I personally think there is a way around that, trying to find out, so researching. Trust me, I represented myself in Probate Court and educated step-sister's attorney, Court Fiduciary and the Judge regarding banking transactions and that I know how to follow the money. It's my legal responsibility to protect both Mom/step-father. His kids haven't seen him since June and mine aren't any better. Mom taught us that you love the person not what they have and you don't. Having had a multi-millionaire great Aunt and she did not have any of us 4 in her will, no problem, she and my Uncle worked for it not us, but you should have heard those who were not appreciating what she left them. I could have done a lot with $50.000 or more, but it wasn't my money to hand out. Didn't have it before, so no loss to me.
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Reply to dkentz72
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FrazzledMama Dec 22, 2018
I think you are right in seeking legal advice as to protecting your mom and step-dad, perhaps even seeking guardianship of stepdad if he would be in danger of being exploited financially by stepsister, especially since she has a historyof doing so.

The bottom line is protection of the elders to provide for their care, not what siblings get what, or whether anyone inherits anything at all. They are still alive and could potentially need all that they have for their long term care and medical expenses, not to mention the bills that they have that need to be paid.

Also, what would mom and stepdad want? Would they really want a divorce if they were in their right minds? I'm betting unless there were some serious problems between them, if they didn't get a divorce before they got sick, they probably wouldn't.
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In the State of AZ, I am Mom's Guardian which supersedes all POAs no matter who has what or where. Per the Court that includes decisions with my step-father too. I can't make medical decisions per se, but I can have a say.
I have an attorney. The State Law is income having ever been co-mingled becomes 1. Step-father's income is more than Mom's, I have the right to take enough of my step-father's income so that their "income" is 50-50 since they are married. His oldest daughter should be providing me with that difference like spousal support. Attorney says that step-siblings can file for a legal separation or divorce so she can keep all of his income. She doesn't want to give anything toward Mom's income or pay 50% of community debt per AZ State law. She stole 75% of the quick money, the checking. She wants "his" 50% of a joint investment account. What she stole was $1.000 less of what she stole. They are pissed because Mom did not place step-father on deed to house. 1st thing she asked me when all of this started. Really, why does someone ask that right off the bat? Their Father never had anything (They were engaged before Mom married my Dad) or a window to ___. A mobile home worth $49.900 he sold in 1999. Mom had him place $$ in a retirement investment account....spent it until only the $1.000 left. My Mom cashed in stock to refund his account BUT it had to be changed to joint. Mom is worth half mill or more and his kids are pissed Mom did not place him on her investments. Get the picture now?
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Reply to dkentz72
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I think you need a new lawyer - you are mixing too many areas of law together and coming up with some conclusions that don't make a lot of sense to me. #1 - being guardian for your mom does not make you guardian for your step father, they aren't a package deal and guardianship doesn't work that way. As for the division of assets - surely your mom would be awarded half the assets in a divorce regardless of whose name is on the title, so I really don't understand step sister's math.
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