What Would My Texas Child Support Be?

Ever wonder how much you would pay in child support in Texas?  The Texas Office of the Attorney General has on online child support calculator that gets pretty close to figuring out what your child support obligation would be in Texas.  The actual number may vary, but this will give you a good idea -

LINK TO TEXAS CHILD SUPPORT CALCULATOR

Contracts with Lawyers (2 of 3)

Post two of three deals with flat fee contracts.  These are the simplest contracts.  You pay the lawyer a set amount for a legal matter and that is it – no variance for how successful or not the case turns out.

Flat fee contracts are typically used for situations where the legal work/time/fees needed is easily determined.  Common cases would be a no-contest divorce or a criminal matter.

The problem with flat fee contracts is that most are nonrefundable, and the contract spells out the terms of the representation.  If your case evolves outside of the contract, you lose that money and the representation.  For example, you pay a flat fee for a no-contest divorce, then it becomes contested.  At that point, your lawyer is free to step out because the contract states his representation is only for a no-contest divorce, which no longer applies.  Should a situation like that arise, most lawyers are happy to renegotiate the contract, but do not expect another flat fee!

As always, read the contract closely.  Each contract can vary so pay close attention to the terms.  If you have a question, ask!  Your lawyer would rather have you understand the contract and the process up front so that both of you know what to expect.

Retainer Contracts: Contracts with Lawyers (1 of 3)

Contingency Fee Contracts: Contracts with Lawyers (3 of 3)

How to Change Contractual Alimony

First, make sure the clause you are looking to change is contractual alimony and not spousal support. You can get an idea by looking at my post here.

If it is contractual, read on!

Changing contractual alimony in Texas is not easy. It follows contract law, so typically you need the written agreement of both parties.  You need to look carefully at the terms and conditions of the payments first, and see if there is a built in way to modify or terminate the payments.  If not or the terms do not apply, you are going to need to talk to the ex-spouse.

Why would an ex-spouse agree to change the spousal payments?  Sometimes out of the goodness of their hearts… or perhaps you offer them something of value – some ideas:

1. More money over a longer period of time so that the payments are smaller;
2. Less money but in a lump sum payment;
3. Other property can be used as well; or
4. An offer to pay off debts incurred jointly or by the other party during the marriage.

We have also seen other consideration given, like the addition/modification of a geographic residency requirement or exchange points.  In the end, the deal is up to the parties, with very few exceptions.

Another method would be to attack it as you would a contract.  This is much more involved, and more difficult.

If you have a question or want advise about a particular situation, email or call – we can help!

Standard Possession Order for 2013

Since we started a new year, I thought the most useful thing to do was post a link to a standard visitation calendar for 2013.

Click OAG’s 2013 SPO Calendar

Of course, the above calendar won’t take into account all of the summer visitation or school holidays – you will have to spend some time doing that.  Here is a good website to help.

Last, click here for a more in-depth discussion of the Texas Standard Possession Order.

Wage Withholding for Contractual Alimony – No longer!

A Texas Court of Appeals held that a wage withholding order cannot be used to collect contractual alimony.  This adds yet another difference between court-ordered spousal maintenance and contractual alimony for both clients and lawyers to know about and discuss.

The full opinion can be found here.

The most interesting part is that this invalidates Texas Family Code §8.101(b) to the extent it authorized wage-withholding for contractual alimony.  The basis?  Unconstitutional under Texas Constitution Article XVI, §28, which states that current wages for personal service are not subject to garnishment, except for the enforcement of court-ordered child support or spousal maintenance!

Want to Change Child Support? Know the A, B, C’s…

Changing a child support payment (whether your’s or your ex’s) is certainly possible, just make sure that all the bases are covered.  Let’s look at the first group of steps needed, which can be found in Texas Family Code section 156.401(a).

1. A “material and substantial change in circumstances” is needed.  Here, we need it to be a financial change (either earning power or monetary need).
2. Those circumstances must relate to the child or a person affected by the order.
3. The change in circumstance must have occurred after the signing of the order.

With the above set of facts, changing that child support payment becomes possible.  At the hearing, the above must be shown.  Simple testimony is not always enough.  The best way would be to show tax returns or pay stubs showing income at the time of the signing of the order, then current tax returns or pay stubs.

For an interesting case showing this process, look at In the Interest of C.H.C. by clicking the name of the case.

Fraudulent Marriage – Annulled!

Ever hear of a marriage based on lies and deceit?  I think everyone has, but never have I seen it laid out as clearly as is done in the opinion below:

Montenegro v. Avila

In this case, a man and woman met on an internet dating site.  The man initially claimed to be an engineer in Florida while the woman honestly stated she lived in El Paso.  The man finally, after they began to talk about meeting, told her that he could not visit her in Texas because he was in Bogota, Colombia, and could not get a visa.  The couple met in Mexico, where the man proposed.  He was turned down, but did get $200 to make his way back home. Later that same year, the woman traveled to Colombia, was proposed to, and accepted.

Man, now Husband, gets woman, now Wife, to apply for a visa for him.  He gets to the United States, get Wife to open bank accounts in both of their names, and begins withdrawing funds.  He doesn’t work until almost a year later, but instead begins the residency process.  On and on it goes…

Then Husband finds out about the Violence Against Women Act and how it can be twisted to circumvent the typical visa/residence restrictions.  The same day he learns about this he turns himself into a domestic violence center and reported he was being abused physically, verbally, mentally, and sexually.  He eventually leaves with the money he’s taken and other ill-gotten goods and moves to another city.

Wife filed for annulment, he filed for divorced.  Guess who won?  Wife – the marriage was annulled on the grounds of fraud.  Very interesting.  I’m not an immigration attorney, but I’ll bet that if that marriage visa was based on fraud, as could be concluded by the annulment being granted, he would probably have to leave the country, hence his need to appeal and our ability to read a very interesting appellate decision describing this case!

How to Pursue Contractual Alimony and the Remedies Available

Before reading this post, make sure you know if the payments are contractual alimony or spousal maintenance.  My prior post on the topic should help.

If a spouse (now ex-spouse) fails to pay contractual alimony, your remedies are the same as if they had breached any other contract.  You look for the damages you suffer, which include both the payments outlined in the decree that the ex-spouse has not paid, any foreseeable damages, and attorney’s fees.

The missed payments should be easy to figure out.  Tally up the amounts the ex-spouse has not paid.

Attorney’s fees are available through the Texas Civil Practice and Remedies Code section 38.001.

Foreseeable damages would be any additional penalties, fines, and other monetary amounts that the spouse could have foreseen you would suffer by their non-payment.  For example, if the payments were known to be used to pay a mortgage, the paying spouse failed to make multiple payments, and the mortgage was foreclosed and the house lost, you could argue any additional penalties/fees, moving expenses, and perhaps other expenses were foreseeable and should be compensated.

Some issues for the suing party to consider are whether the ex breach the entire agreement or whether the breach was only of the specific payments not made.  Things get more complicated here, since sometimes parties argue the contract was modified by different events or a pattern of past behavior, as well as the more limited breach of an installment contract versus the total breach.  If arguments like this begin to surface, consult a lawyer familiar with this topic.  It will serve you well, and in this setting, contingency fee contracts or retainer agreements are both typically available, depending on the firm.

What Effect Does Use of Pornography have in Child Custody Cases?

Very little to none.  This answer might surprise you, but at least one Texas case is directly on point.  That reasoning is that if the child does not see it and is not exposed to it, the child is not affected by it, and that argument supports even to what may amount to distasteful or deviant sexual practices by a parent.  For an interesting read and case on point, click on Wolfe v. Wolfe, below.

Wolfe v. Wolfe

If you think the actions of a spouse ARE affecting your children, please consult with your attorney and see if they can better bring this side of the case to light for the Judge.

Relocation in Texas (also known as Geographic Restrictions or lack thereof)

How does a Court determine if a geographic restriction for the child’s primary residence should be put in place, and if so, the area of that geographic restriction? 

OVERVIEW

In Texas, the Court’s power to determine geographic restrictions comes from Texas Family Code sections 153.134(b)(1)(A) and (B).  The first section allows the Court to establish a geographic area for the child’s primary residence while the second, (B), allows the Court to specify that the conservator with the right to determine the primary residence of the child has no geographic restrictions in making that decision.

The Court, in making this decision, then looks to the public policy of the State of Texas and the best interest of the child as laid out in Texas Family Code sections 153.001(a) and 153.002.

153.001: Public Policy

(a) The public policy of this state is to:

     (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

     (2) provide a safe, stable and nonviolent environment for the child; and

     (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

153.002: Best Interest of Child

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

SPECIFIC FACTORS

As you can see, there is not a lot of guidance.  Fortunately, two cases lay out the factors to consider.

For the best interest of the child, we look to Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).  While an older case, it is still continuously cited and is still considered good case law.  In fact, when searched on LexisNexis on January 6, 2012, Holley was cited 963 times.

Those factors are:

1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best interest of the child;
6. the plans for the child by these individuals or by the agency seeking custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a roper one; and
9. any excuse for the acts or omissions of the parent.

This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

For factors to consider in the relocation context, we look to Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).  In Lenz, the Texas Supreme Court dealt with two German citizens and their children.  One parent wanted to move back to Germany.  The Texas Supreme Court stressed that old standards of relocation which place a burden on the parent choosing to move may not be feasible or appropriate in our society today, since there is “[i]ncreasing geographic mobility and the availability of easier, faster and cheaper communication.”  The Court then looked at other states to discuss factors now deemed more relevant in today’s society.   Those factors are:

1. reasons for or against the move;
2. comparison of health, education and liesure opportunities;
3. whether special needs and talents of the children can be accommodated;
4. the effect on extended family relationships;
5. the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and
6. whether the non-custodial parent has resources to relocate.

OTHER CONSIDERATIONS

Echols v. Olivarez:

Another case sometimes referenced is Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.– Austin, 2002).  Echols takes some of the language of Lenz and expands on it so that the “context of the custodial parent’s happiness” should be a factor as well.  The idea is the custodial parent’s happiness can influence the child’s happiness.  Since the Texas Supreme Court in Lenz left the list of factors open, this seems a legitimate factor to consider in the relocation context, though the weight that should be assigned this factor is certainly not determinative of the relocation issue.  Later cases cite this factor and the current attitudes on this in the scientific community as evidenced by expert testimony at the trial court level.  However, that will need to be another post.