GETTING CHILD SUPPORT WHILE MY DIVORCE IS PENDING
Often, once a divorce is initiated, a need for support arises for the custodial parent (the one with whom the child or children primarily reside). A common question that clients in this situation ask is “Can I get child support while my divorce is pending?” The answer is yes, and there are a few ways for child support to be ordered while a divorce is pending, through the use of temporary orders. Temporary orders can mandate that temporary child support should be awarded.
What are Temporary Orders?
Temporary Orders are an order issued by a judge, or agreed to by the parties,that takes effect for the duration that a family law case in pending. Often, temporary orders are negotiated, agreed, and signed voluntarily by the parties. Once the order is signed by the parties, it is filed to the court and signed by the judge. If the parties cannot agree on their own, some courts require that the parties attend mediation and attempt to come to an agreement in that way, before being allowed to schedule a temporary orders hearing in front of a judge.
What if we can’t agree?
If the parties are unable to come to an agreement over the terms of the temporary orders, a party may file a petition or motion for temporary orders and there must be a hearing in front of a judge. A temporary orders hearing can feel like a trial, as the hearing usually involves testimony and evidence. Witnesses may be called and cross-examined, and documents, photos, etc. can be introduced into evidence.
Once a court has entered the temporary orders the parties must abide by them for the duration specified in the order. Usually it’s until the final order of the court is entered, but the court has discretion in setting a deadline.
Divorce is naturally a complex process from both an emotional and a financial standpoint. If you and your spouse struggle to see eye to eye on matters such as property division, this only makes matters challenging.
However, even in the most amicable of divorces in Texas, you and your spouse may still run into some hiccups. Perhaps you have agreed on most areas of dispute, but there are still a couple of issues that you are having trouble resolving. In this situation, you and your spouse may benefit from a process known as divorce mediation.
What exactly is mediation?
Mediation is a form of alternative dispute resolution that allows you and your spouse to take part in a negotiation process that a neutral third party facilitates. In mediation, the third party does not do any decision-making.
How do I know mediation is best for me?
Mediation is an ideal option for you and your future ex if you want a process that is hands on, structured and short term. Your third party will supervise your and your spouse’s exchange of information and help with the bargaining process. The goal of your mediator is to assist both parties with finding common ground.
You can also expect your mediator to help you to address any expectations that are simply unrealistic. In addition, this party may provide some unique solutions for you that you and your spouse may not have considered.
Benefits of mediation
A huge benefit of mediation is that it is a faster process than going to trial, and therefore, it is comparatively inexpensive. The procedures dictating mediation are also much simpler than those for formal litigation.
Another advantage of mediation is that it is often less stressful than litigation, which is especially ideal if children are involved in the divorce proceeding. Furthermore, if you have children, by mediating a divorce, you and your spouse get to practice working out issues on your own outside of court, which you will eventually have to do as co-parents after you finalize the divorce.
Many clients in our Austin divorce cases want to know “who gets the house”. The home is often the largest single asset in a divorce, so it is important to know what factors are important in making this decision.
Judges distinguish between who gets the house on a temporary basis, while the divorce is pending, versus who will get the house and liability for it in the long run after the divorce is finished. When children are involved, judges will want to keep the children’s lives as stable as possible and not move them around too much. If it makes sense, the judge will try to keep the children in the house at least on a temporary basis while the rest of the divorce is being worked out. If the children have to be moved, the judge will want the parents to plan the best time to make a move.
The ability of either spouse to continue making the mortgage payments is of obvious importance. Judges do not want to impose any liabilities on a spouse that in all likelihood cannot be met. During the temporary phase, a judge may require the primary parent and children to live in the house while the other parent makes the payment. Or, the judge may require payments to be made out of existing assets. However, in considering the long-term award of the house and liability, the ability of the primary parent to make the mortgage payment and otherwise afford the house is of utmost importance.
Regardless of which spouse gets the house and is ordered to make the house payment, if the mortgage is in both spouses names, both spouses will continue to be ultimately liable. In other words, if the spouse who is ordered to make the payments fails to do so, the mortgage company could still look to the other spouse for payment. The divorce judge has no authority to relieve either spouse from liability on a jointly held debt. Likewise, although the judge may require the spouse taking the house to attempt to refinance the debt into his or her sole name, if the spouse cannot get new financing, the divorce judge has very little enforcement remedy as to the refinancing.
When one spouse takes the house and debt, he or she will be required to sign a deed of trust document that gives some protection to the other spouse if the payments are not made. So, if the spouse that took the house gets three months behind in payments, the other spouse would have the authority under the deed of trust to catch up the payments and take over the house altogether.
If neither spouse can afford to keep the house, then the judge can order it sold. If one spouse has a legitimate concern that neither spouse will be able to pay for the house in the long run, that spouse can make a request to the judge to order the house sold so both spouses are relieved from the liability.
Clarifying the Texas Summer Visitation Schedule
Schools are now out and the three months of summer vacation have now started. While just about all parents are concerned with what their kids are going to do to fill the time they would ordinarily spend in the classroom, parents who are divorced will typically be concerned with when they actually get to spend time with their kids as well. This is especially true for those parents who are the possessory parent, i.e., the one with whom the child(ren) do not primarily reside with. The summer months are seen as an opportunity for this parent to have a chance to experience some extended time with the kids.
The Texas Family Code draws a distinction between:
1. parents who live within 100 miles of one another and
2. parents who live more than 100 miles from one another.
If the possessory conservator lives within 100 miles of the managing conservator, the possessory conservator will give the managing conservator written notice by April 1st which states the extended period or periods of summer possession (totaling 30 days) that the possessory conservator is requesting for the upcoming summer months.
BEGINNING AND ENDING
That period of possession can begin no earlier than the day after summer vacation begins and shall end no later than seven days prior to the beginning of the new school year.
The possessory conservator may exercise their periods of possession in no more than two separate periods of at least seven consecutive days each. Further, each period of possession shall begin and end at 6:00 p.m. on whichever days he or she chooses.
APRIL 1ST NOTICE REQUIREMENT
If the possessory conservator does not give the managing conservator written notice by April 1st of that year which specifies the extended period or periods of possession he or she would like to take advantage of during summer vacation, they are automatically granted time with their child(ren) for thirty consecutive days beginning on July 1 at 6:00 p.m. and ending on July 31 at 6:00 p.m.
As far as the managing conservator is concerned, that parent shall have possession of the child(ren) on any one weekend beginning Friday at 6:00 p.m. and ending on the following Sunday at 6:00 p.m. during any one period of possession by the other parent.
The exception to this rule is that the managing conservator must give written notice by April 15th to the possessory conservator of their intention to take advantage of this weekend. Unlike the drop off/pick up rules for the rest of the year, the summer time sees the managing conservator be responsible for transportation purposes in this scenario.
While the summer is intended to be a time of fun for your kids, when parents do not work together, it can also cause stress and anxiety for the kids. When going through the summer visitation, it is in everyone’s best interests to remember that ultimately what is best for the children is what’s best for the parents
HOW FAMILY COURTS VIEW “SPLIT CUSTODY” IN A DIVORCE CASE
When you are involved in divorce proceedings where children are involved, it’s going to be a difficult time for the children, and any final outcome will be a big adjustment. This is especially true when you have multiple children together. Many tough decisions must be made regarding child custody and parenting. In some cases, parents may feel that it is in the best interest of the children to split them up. Should that ever be a consideration? When one child wants to be with one parent, and the other child with the other parent, is it a feasible option? There are endless questions and strong opinions surrounding the splitting up of siblings.
Many new families choose to have multiple children in the first place so that the children can grow up to be close in nature. Buddies, best pals, playmates; that’s what we think of when we consider siblings. A built in best friend for your child, or in the case of bigger families, more playmates to go around. In the event of divorce, the dream of what you thought your family should be will have to change considerably.
To Split or Not to Split
Each family’s situation is unique, and the court system recognizes that. However, many family court judges will consider the divorce process to be somewhat traumatic for young children, and not be readily in favor of adding to the trauma by separating them from their sibling. In the event that the children actually prefer to be separated from each other, a judge may be more willing to sign off on a split custody arrangement. This option is usually only considered in cases where the children are old enough to be part of the decision making process. Although it varies by state, in Texas a child must be at least 12 years old to be considered old enough to have a voice in his or her own custody arrangement. At this age, a judge may take the child’s wishes into account, but by no means is held to honor those wishes.
A Personal Decision
It’s a very personal decision during a custody situation to decide whether or not to split up your children. If both parents agree to split up the children, the judge may be more likely to go along with the request, although it’s not the usual route taken. Primary joint managing conservatorship as it’s called in Texas, is usually awarded to one parent for all of the children involved. Many split custody situations come about as a natural progression of the children aging and the parents becoming more relaxed about the custody agreement. In these situations, the custody agreement can be legally modified to reflect the current living arrangements.
At the end of the case, the court will always make the decision based on the best interest of the children.
Child Support Enforcement in Texas
A number of Texas parents are delinquent on their child support and the state has ways of enforcing payments.
When parents decide to file for divorce, children involved in the separation are often forced to go through a financial and emotional transition. In order to minimize the dramatic financial changes that can take place during this hard time, Texas courts order the non-custodial parent to pay child support to the parent who maintains primary custody of the child. Child support can help parents pay for essentials, maintain solid ground and ultimately increase the child’s quality of life. Unfortunately, not all parents who are ordered to pay child support follow through with the obligation, and some children are left to struggle without the financial support they need and deserve.
In an attempt to collect unpaid child support and enforce current child support orders, the Texas Attorney General’s Child Support Division uses various methods. The negligent parent may be subject to the following:
• Suspended professional and/or driver’s license
• Payments deducted from their paychecks
• Intercepted funds from lottery winnings, income tax refunds and other sources of income
• Liens put against their property
Parents who owe child support may face jail time as well. Past due child support payments also accrue interest until the balance is paid in full.
Parents who owe a substantial amount of money in back child support may be put on the state’s Child Support Evaders list. These parents must owe a minimum of $5,000 in past due child support, and have a warrant out for their arrest. Furthermore, they must miss at least six months of payments and are avoiding apprehension. These parents cannot be involved in any pending bankruptcy cases
Since child support is such a critical part of a child’s life, it is important to ensure your child receives what he or she is entitled to.
Basic Outline for Completing an Uncontested Divorce
1. File an Original Petition for Divorce in the proper county.
Generally speaking, the proper county is the county you or the other party (Respondent) have resided in for at least 90 days prior to filing for divorce, assuming you have been a resident of the State of Texas for at least 6 months.
The petition names the parties to the suit (yes, a divorce is a law suit), establishes the court’s jurisdiction to hear the case, lays out the grounds for divorce and asks the court to grant the divorce.
2. Present a copy of the filed petition for divorce, along with a Waiver of Service, to the Respondent.
The waiver, once executed and filed with the court, tells the court that the Respondent has formal notice of the suit as required by Texas law. Normally, a party to a lawsuit must be served with legal papers before the filing party can proceed. A waiver of service does exactly what it says; it is the Respondent’s method of waiving that service thus allowing the filing party to proceed with the case.
3. File the executed waiver with the Court.
4. Draft a Final Decree of Divorce
The Final Decree of Divorce sets out the agreement of the parties. The decree includes provisions for dissolving the marriage, child custody, child support and property division. It is the document the judge will sign that officially divorces the parties.
5. Go to court after 60 days has elapsed from the time of filing and “prove up” the divorce.
The prove up consists of reciting information about the divorce to the Court so that the Court is satisfied that all of the requirements for a divorce, as outlined by the Texas Family Code, have been met. If the requirements have been met the judge will approve and sign the divorce.
6. Get a certified copy of the Final Decree of Divorce.
Once signed, a certified copy of the Final Decree of Divorce with the judge’s signature is usually available from the Court within a few days. A certified copy is used to complete a name change, establish a child support account, or simply prove that you are divorced.