Articles Posted in Family Law Changes

Chapter 8 of the Texas Family Code governs spousal maintenance, Texas’ own form of “alimony”.   Spousal maintenance is not easily obtained by divorcing parties; in fact, the legislature has created a pretty high threshold.  But, the issue becomes what if you have an out of state decree that speaks to spousal support and then you have the spouse ordered to pay subsequently wanting to get out of that arrangement?  This is the exact issue that the Fifth Circuit Court of Appeals addressed in In the Interest of L.T.H., R.R.H., and A.W.H., Minor Children.

In that case, the wife appealed a trial court’s ruling to refuse to enforce a California divorce decree modification and the husband’s obligation to pay spousal support.   In California, husband and wife were divorced, subsequently modified the divorce decree in California with a settlement agreement, and entered a reformed decree.  Then, everyone subsequently moved to Texas.  Later, the wife sought to enforce against the husband several times due to his nonpayment of the spousal support and child support.  After the first enforcement, the parties signed a mediated settlement agreement agreeing to certain terms regarding the spousal support (payment was definitely one of those terms) and then an order was subsequently entered.   The wife had to seek a subsequent enforcement due to the husband not paying again pursuant to the orders and in that case, the trial court ordered that they could not enforce the modification of the California decree and ordered that wife take-nothing.  However, the Court of Appeals thought differently and reversed and remanded ruling that they would strictly comply with the parties’ MSA, uphold the MSA and the parties’ agreement.

The Court of Appeals reviewed this case under contract law, which is sometimes unusual when discussing family law cases.  However, most people forget that every agreement entered into (when the proper elements are present), create a contract between the parties that can be enforceable as such.  The Court of Appeals looked to previous appellate decisions to reach this decision such as Schwartz v. Schwartz which held that “When such an agreement is executed by the parties and incorporated into the judgment of a divorce, it is binding upon the parties, and is interpreted under general contract law.”  Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—Dallas 2008, no pet.).   Therefore, the Court would not review the MSA under Chapter 8 of the Texas Family Code stating that this was a contract turned into a court order which did not effectively create court ordered maintenance under the Texas Family Code.

I am by no means a licensed mental health professional, psychologist or psychiatrist; however if you have been a follower of my blog regarding divorce, child custody, or any family law issue you know that I constantly write about the psychological tolls that the cases take on my clients.  This is because I witness every day the psychological struggles that my clients go through.   Divorce is hard on everyone involved, no matter how you slice it.  Many people hear this, but do not actually understand until they are in the trenches.  However, it is so important to understand, for your mental and physical health, before you are in the trenches that this will be a difficult process and have a list of coping mechanisms to help you through it.

So many people fall into the trap of bitterness, anger and resentment and cannot get past those emotions.    While I will agree that your feelings are legitimate, you also need to work through those feelings so that you can get to the other side and feel a release.  Many people hang on, even after the divorce is finalized.  I have seen what this does to people, and I do not wish it on anyone.  Getting past that anger is not an easy feat, but one that is beyond necessary.

Also, divorce is difficult because it bring change—the familiarity is no longer there, you have to move, your holidays are not the same, you lose a pet, you have to split the time with the children, etc.  Change is so hard and I will be the first to admit that I hate it.  But, change is a part of life; in fact, life is about seasons and weathering those seasons.  How will you weather in a mentally healthy way?

You have a final family order, whether it is an order in suit affecting the parent-child relationship, final decree of divorce, etc., and you would like it modified.  You are either the parent receiving child support and you want the amount increased or you are the parent paying child support and you want it decreased.  Or, there has been a change that would require the conservatorship or visitation modified.  It is not an uncommon question and the Texas Family Code does specify particular deadlines and requirements with respect to filing a modification.

For child support, Texas Family Code Section 156.401 states that final orders can be modified if either (a) there has been a material and substantial change in circumstances for a party or the child after the order was entered; or (b) it has been three years since the order was last entered or modified AND the monthly amount either differs by 20% or $100 from the amount that it should be under the child support guidelines.  So, it has been less than three years but something has happened that would require a change in child support then you can seek a modification.  For instance, did the parent paying child support get a new job after your orders were rendered and they are now making more money?  Or, did the obligor lose their job and they are no longer making any money?  Additional instances of material and substantial change in circumstances would also be (a) the obligor parent had another child that they are financially responsible for; (b) health insurance has changed (lost or new premiums); or (c) the children are now living with the obligor parent or another person.

That brings us to modifying orders as to conservatorship and/or possession or access.   If you are seeking to modify the parent who has the exclusive right to designate the primary residence of the child in less than one year from the orders being rendered, Texas Family Code Section 156.102 governs.  If you do so, you must attach an affidavit to your pleadings and the affidavit must allege specific facts that the child’s present environment may endanger the child’s physical health or significantly impair their emotional development.  Not only must these allegations be made, but you also have to prove this.  If you do not have this, you will have to wait more than one year to change who has the exclusive right to designate the child’s primary residence.  If you are modifying in more than a year, your burden is a material and substantial change in circumstances of a party or the child AND it must be in the best interest of the child.  In fact, best interest of the child is the ultimate burden in every family law case.

You are a father who wants to be a good dad and support his child without breaking the bank and not being able to support yourself.  You do need financial resources in order to do this and you will probably pay guideline support. Our firm can help you.

How Much Will I Pay in Child Support?

          Some fathers fall into the trap of paying above-guideline child support.  That is, they agree to pay more than they are required either in amount of child support or they pay support and in addition to that pay for extracurricular, daycare, etc.  Texas Family Code 154.125 provides the chart on child support guidelines and it is as follows:

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

1 child           20% of Obligor’s Net Resources

2 children        25% of Obligor’s Net Resources

3 children            30% of Obligor’s Net Resources

4 children            35% of Obligor’s Net Resources

5 children            40% of Obligor’s Net Resources

6+ children           Not less than the amount for 5 children

If you have additional children besides the one involved in the suit, that is important because the percentages go down as shown below:

1

2

3

4

5

6

7

Number of

0

20.00

25.00

30.00

35.00

40.00

40.00

40.00

other

1

17.50

22.50

27.38

32.20

37.33

37.71

38.00

children for

2

16.00

20.63

25.20

30.33

35.43

36.00

36.44

whom the

3

14.75

19.00

24.00

29.00

34.00

34.67

35.20

obligor

4

13.60

18.33

23.14

28.00

32.89

33.60

34.18

has a

5

13.33

17.86

22.50

27.22

32.00

32.73

33.33

duty of

6

13.14

17.50

22.00

26.60

31.27

32.00

32.62

support

7

13.00

17.22

21.60

26.09

30.67

31.38

32.00

The cap for child support was recently increased on September 1, 2013 from $7500 to $8550.  This is the new child support cap for application of the percentages to monthly net resources.  Therefore, this is not an increase completely; it only applies to those who have a gross monthly income of approximately between $10,000 and $11,000.00.

Presumably, the application of the child support guidelines to one’s monthly net income is considered to be in the best interest of the child.  However, Texas Family Code Section 154.123 states that “the court may order periodic child support payments in the amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.”  The problem is, most often this section is used to try and prove that a father should pay above-guideline child support.  But, it could still be used to decrease your child support below-guideline child support if, for instance, you are the parent paying all of the travel expenses for possession of or access to the child, if you are paying the child care expenses, etc.  Either way, if the court deviates from the child support guidelines, the judge must issue findings of fact and conclusions of law that supports the court’s decision.

It is important that you discuss all payments for the child that are you make monthly, that the other parent makes monthly, and you need to be able to prove that at least your payments are made.  For example, carbon copies of checks, bank statements, etc.  Too often we have clients who have made cash payments to the other parent and the other parent will not acknowledge those cash payments and there is no way to prove that in court.

How Long Will I Pay Child Support?

          Texas Family Code Section 154.001 provides the requirements of how long one must pay child support.  Generally, most fathers pay child support until the child emancipates which means they turn 18 or graduate high school, whichever occurs later.  Therefore, if your child is 18 but still enrolled in high school, then you can be ordered to continue paying support until graduation month.  However, if you have a child who is disabled, you could potentially pay support for as long as that disability persists.

What about Retroactive Child Support?

          It is not uncommon that we see cases where the parent seeking support is also asking for retroactive child support.  This means that you are not only going to pay child support but you are also going to have an additional lump sum amount that you will be paying on.  Retroactive child support is awarded when you have a case where the child is a little bit older and paternity has never been established.  It can also apply if you have final orders, marry or remarry the mother of the child, and then subsequently separate. The same guidelines apply as when calculating regular support so they would take 20% of your monthly net and calculate that back as far as 4 years.  Sometimes, considering factors within the Texas Family Code, the court can order you to pay back to birth.  With an older child, you can understand how problematic and expensive that can become.

What is Cash Medical Support?

          If private health insurance is not available to either parent for the child, then the obligor parent shall be required to pay cash medical support.  Reason being, the child will be enrolled on a government assistance medical program such as Medicaid.  Therefore, the Texas Attorney General’s office then develops an interest in your case because it then becomes an issue of money owed to the government for the assistance the child is receiving.  Texas Family Code Section 154.182 provides guidance as to amount and states that in addition to the guideline child support, this amount “is not to exceed” 9% of your annual resources.  The orders will state that you are paying this amount “as additional child support” but that amount will be withheld by the Attorney General’s office when you pay your monthly child support.

The orders will also state that you can cease paying cash medical support if you do a series of options, including if you obtain private health insurance for the child.  A word of caution: if you do obtain private health insurance after final orders have been rendered ordering your cash medical support, it is highly suggested that you do not cease paying the cash medical.  Rather, you need to notify the Attorney General’s office of the private health insurance and request a review meeting.

If private health insurance is available to the parent not ordered to pay child support, most likely you will be ordered to pay child support in addition to cash medical support which will be the amount of the health insurance premium on the child.

It is important that if you have private health insurance available through your employment that you provide said insurance for the child.  Many fathers are concerned that their employer will wait until open enrollment to allow coverage for your child.  However, if you obtain a court order and that order is sent to your employer, your employer must enroll the child by the date that you were ordered to provide the health insurance.  Therefore, you could avoid payment of any cash medical payment altogether.  Also, another added bonus, in calculating your monthly child support obligation, payment of a health insurance premium is taken into consideration.

What Should You Do?

I have helped many clients with this issue and I can help you as well.  Whether you are dealing with a case in which your child support is being established for the first time (with a young or older child) or a modification in which your child support is being increased, we are here to guide you throughout the process.  Guest & Gray has the family law experience that you need.  We have offices in Forney, Rockwall, and Kaufman.  Call us today to schedule your appointment.

 

 

New 2013 Texas Family Laws

 At Guest and Gray our Forney and Rockwall Family team works to keep our clients informed on changes in the Family Code. Recently, the legislature passed many new laws that affects Texas families. Our family attorney can help you understand how these laws will affect your case, and we offer confidential consultation for all family law cases. Call us today so we can help you.

Miscellaneous Changes