Archive for October, 2017
WHAT IS “ACKNOWLEDGEMENT OF PATERNITY” (AOP) AND WHAT DOES IT MEAN
It is important to establish paternity for a multitude of reasons, not the least of which the best interests of the child, and the parents knowing who the biological father is.
First, is the Acknowledgement of Paternity (AOP). This lets parents who are not married establish the child’s paternity. When the biological parents sign the AOP and file it with the Texas Vital Statistics Unit (VSU), it means that these are the legal parents of the child. The father will subsequently have all the rights and responsibilities of a parent. That includes his name being put on the birth certificate.
The AOP must be completed prior to an order for child support or paternity determination. If the father is not able to be at the hospital when the child is born, the AOP can be completed at a state attorney general’s child support office, the birth registrar’s office, or another entity that has been certified by the AOP.
Some cases cannot be settled with an AOP. If, for example, it is not fully known who the biological father is, an AOP may not be appropriate. It is possible to establish paternity by using a court order. One way to do this is by opening a child support case with the Office of the Attorney General.
Parents need to make certain that they take the necessary steps to legally establish the biological father as soon as possible.
What to consider in allowing a custodial parent to relocate with a child?
People change residences for all kinds of reasons, but people generally don’t have to get court approval to relocate. That is not always the case, however, for divorced parents with minor children.
In Texas, unless an agreement between the parents says otherwise, a modification of a child custody order is needed if the parent with primary physical custody plans to move with the child to another county or beyond.
If the parent without primary custody contests the move, then both parents may have to present their cases to a judge. The judge will consider each party’s claims and evidence, all while keeping the child’s best interests as the top priority.
Reasons to relocate with a child include:
• The move would put the child closer to family who can help with child-raising responsibilities.
• The custodial parent has been offered a job that would be in the child’s best interests.
• The custodial parent has arranged to continue his or her education, also in the child’s best interests.
The distance a parent intends to move is also a consideration. If a judge grants a relocation that is less than 100 miles away from the non-custodial parent, then regular visitation guidelines apply. If the move places the parents more than 100 miles apart, or if the move takes the custodial parent and the child to another county, state or country, then there will be additional guidelines and considerations.
A judge may consider the role the non-custodial parent has played in the child’s life. Has the non-custodial parent actively helped care for the child? Or has the non-custodial parent been largely absent?
HOW TO DIVIDE RETIREMENT ACCOUNTS IN A DIVORCE
Retirement plans are viewed by the Texas courts as indirect compensation to a spouse, which is actually an income, earned by the spouse during the marriage.
Any contributions to a retirement plan made during the marriage are viewed as community property by a Texas court and subject to division upon divorce. Marital retirement accounts are pensions, IRA, Roth IRAS and 401(k) accounts established during the marriage.
Assessing the value of retirement accounts is a complex process, particularly if an individual contributed to the account before the marriage, or if some assets accrued in the account while the couple lived in a common-law state.
Since most retirement accounts are subject to steep early distribution penalties, qualifying domestic relations order (QDRO) must be drafted and incorporated it into the final divorce decree. A QDRO allows the parties to avoid paying early withdrawal penalty fees imposed by the federal government. Each party has the option of withdrawing the marital funds, pursuant to the divorce award, and transferring it into a separate retirement account.
In most instances, these are tax-deferred accounts, so no tax consequences are incurred by merely dividing a retirement account in a divorce. However, there may be tax consequences after a divorce if you withdraw funds from a 401(k) before you are retired.
VALUATING THESE ACCOUNTS
The courts value the retirement plan at the date of divorce, not the actual value of the actual retirement benefit. Thus, the value of the community interest in the retirement plan at the date of divorce is not the same as the actual value of the retirement benefit.
Also, a Texas court may consider a disproportionate allocation in accordance with unequal earning capacity between spouses, unequal wealth or parenting time.
GEOGRAPHIC RESTRICTIONS IN TEXAS DIVORCES
When parties enter into either a divorce or child custody case, the Court which has jurisdiction over the case will weigh whether or not to place a geographic restriction on the residence of the children.
A restriction will typically bind the children’s primary residence to one county and either the counties contiguous to their home county or to places within a certain distance from their home city. Of course, the parties can come to their own agreement without the Court being involved and they can choose whether or not to place a geographic restriction upon themselves.
For those situations that do require the Court to become involved all that is required for a restriction to be set up is for one party to request it.
REASONING BEHIND THE GEOGRAPHIC RESTRICTION
Reason being is that the Court wants to encourage the parties to live close to one another to best facilitate the opportunity for the parents to “co-parent” with one another and to lessen the transportation burden on both parties.
When two parents get divorced or when non-married people cease to live in the same house, the child cannot live primarily with both parents. The parent with whom the child primarily resides (the custodial parent) and the parent who has visitation of the child (non-custodial parent) will share the child’s time between their residences.
By the end of a case the Court will typically ensure that a geographic restriction continues unless the parties come to a prior agreement on the subject or if the restriction is not in the best interest of the child. Once a restriction is put in place it is extremely difficult to get it overturned in a modification.
All in all, a geographic restriction will in most situations do a lot to benefit the non-custodial parent by limiting where the children can move. For every parent who is concerned heading into a divorce or child custody case that they will lose a lot of time with their child, the geographic restriction concept should allow them some peace of mind.
CHANGING YOUR CHILD SUPPORT ORDER AFTER THE DIVORCE
Texas parents have the legal responsibility to financially provide for their children after a divorce. Child support orders generally reflect the circumstances that were present at the time that the divorce was final, but time can bring significant financial changes to one or both parents.
If you find that your current child support order does not reflect your needs or that you are unable to meet your current obligations, you may have grounds for a Modification.
The requirements for modifying your support order in Texas
Even if you and your spouse agree to temporary changes in the amount or the frequency of child support payments, it is not legally binding. Modifications are only attainable through either a court hearing or through the child support review process.
In order to be eligible for a modification, one of the following requirements must be met:
• There is an increase or decrease in the noncustodial parent’s income.
• The noncustodial parent is now legally responsible for the care of other children.
• There has been a change in the kids’ medical coverage.
• There has been a change in the kids’ living arrangements.
What worked for you at the time of the divorce may not be applicable years down the road.
Securing the changes you need
Your desire to parent your children well and provide for their needs has not changed, but your financial circumstances may not be the same. If you think you have a rightful claim to a modification of an existing support order you may need to file for a Modification immediately.
Relying on a verbal agreement or simply skipping payments is not a smart option; instead, you must seek a legal resolution to your concerns that aligns with your current abilities and needs.