Archive for May, 2015
PUTTING A “CAP” ON CHILD SUPPORT IN TEXAS
Many people believe that there is a statutory “cap” or maximum amount of child support permitted under Texas law. This belief is only partially correct.
Texas has enacted statutory guidelines which apply various percentages – depending on the number of children the parent must support – but only to the first $8,550.00 of an obligor’s monthly net resources. See Tex. Fam. Code §§ 154.125 et seq. (before Sept. 1, 2013, the percentages were applied only to the first $7,500).
So, for example, if you receive annual income of more than $102,600.00, your income in excess of that “cap” is not included in determining the amount of child support presumptively owed under Texas statutory guidelines.
However, as mentioned in a previous topic in this blog series, Texas has given its courts some discretion in deciding whether to vary from the “guidelines” amount of child support. As a result, it is possible for a court to determine that an obligor owes additional child support above the presumptive amount in a specific case.
To exceed this statutory “cap,” the court must determine that the child’s “proven needs” exceed the presumptive amount of child support under Texas guidelines. Here, the child’s “needs” are based on the parties’ circumstances and are not limited to basic necessities such as food, shelter or clothing. For example, Texas courts have found that a child’s proven needs may include private school tuition, personal bodyguards, a nanny, music lessons and international travel, based on the family’s lifestyle and particular circumstances.
Another limitation, of sorts, exists under Section 158.009 of the Texas Family Code, which states that no order or writ may direct that an employer withhold more than 50% of an obligor’s disposable earnings. This statute does not limit the amount of child support the obligor may owe, it merely limits the amounts which can be withheld from earnings to satisfy the obligor’s child support obligations. When those obligations exceed the amount that can be withheld from earnings, the obligor remains liable for the unpaid amounts and may begin to accrue arrearages which could extend child support obligations for several years (or lead to other adverse consequences through enforcement actions). In these circumstances, an obligor should consider petitioning the court to modify his or her child support obligations to a level more consistent with the obligor’s current net resources.
Texas uses the “best interest of the child” standard in disputed custody cases. This is a rather amorphous standard, and one that lends itself to judges’ subjective beliefs about what’s best for children. There are some factors, though, that you can expect a judge to consider.
1. Each parent’s living situation.
There’s a bit of a chicken-and-egg dilemma surrounding the issue of where parents live and how that affects custody. Sometimes, the parent who stays in the family home is granted custody of the children because it allows the children stability and continuity in their daily lives. Sometimes, the parent with custody is awarded the family home, for the same reason. If you are crashing in your best friend’s guest room while you get back on your feet after the divorce, don’t expect to get primary custody of your kids. If you truly want to spend a significant amount of time with your children, make sure your living situation reflects that. The proximity of your home to your spouse’s may also factor in to the judge’s decision. The closer you are, the more likely the judge will order a time-sharing plan that gives both parents significant time with the kids. The location of their school and their social and sports activities may also matter.
2. Each parent’s willingness to support the other’s relationship with the children.
The judge will look at your record of cooperating—or not— with your spouse about your parenting schedule. The judge might also want to know things like whether you bad-mouth your spouse in front of the kids or interfere with visitation in any way. The more cooperative parent is going to have an edge in a custody dispute—and a parent who’s obviously trying to alienate a child from the other parent will learn the hard way that courts don’t look kindly on that type of interference.
3. Each parent’s relationship with the children before the divorce.
It sometimes happens that parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended. In many cases, this desire is sincere, and a judge will respect it, especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate a parent’s change of heart and ensure that the custody request isn’t being made primarily to win out over the other parent.
4. Children’s preferences.
If children are old enough—usually, older than 12 or so—a judge may talk to them to find out their preferences about custody and visitation. Texas law requires courts to consider kids’ views, but others disapprove of bringing the kids into it at all.
5. Continuity and stability.
When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn’t good for kids. So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.
6. Abuse or neglect.
Obviously, if there’s clear evidence that either parent has abused or neglected the children, a judge will limit that parent’s contact with the children.
Every situation is different, so the judge may consider other factors in deciding custody in your case.