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:

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.

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