Archive for January, 2019

HOW DO TEXAS COURTS DIVIDE PROPERTY/ASSETS IN A DIVORCE?

 

Texas is one of the few unique community property states. Community property means any property acquired in the marriage by a spouse unless otherwise classified as separate property. The exception to this is property acquired by gift, devise or descent. In Texas, the presumption is everything is community property unless rebutted.

What Does Community Property Include?

Community property in Texas can be characterized as the following:

1. Income of either spouse during the marriage

2. Property purchased with income during the marriage

3. Real estate purchased during the marriage

4. Dividends, Interest, and capital gained earned on community property

5. Dividends and interests earned on either spouse’s separate property during the marriage

6. Pension, Retirement, Any Employee Benefit Sharing Plan accrued during the duration of the marriage

Community Property and Divorce

When splitting community property in Texas, the Texas Family Courts follow the “just and right” provision. Often times clients interpret this to mean an even 50/50 split which is not true at all. A “Just and Right” provision simply means that the division of the property must be equitable under the circumstances. In some cases it may mean 50/50, 60/40, 70/30 etc. The court looks at fault in the breakup of the marriage, disparity of earning power between the spouses, health of spouses and future employability of a spouse.

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WHEN CAN A CHILD SUPPORT ORDER BE MODIFIED IN TEXAS?

WHEN CAN A CHILD SUPPORT ORDER BE MODIFIED IN TEXAS?

A child support order may be modified under two broad conditions. Specifically, the child support order may be modified if:

  • A child support order is more than three years old and the amount of the monthly child support calculated using the statutory child support guidelines in the Texas Family Code would change by more than 20 percent, or at least $100; or
  • The party requesting the modification proves that there has been a material and substantial change in the circumstances of one or more of the parties to the support order, or the child, since the date the last child support order was entered with the court or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.

WHAT DOES A MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES MEAN?

The Texas Family Code does not outline the specific circumstances that would qualify as material and substantial changes to warrant a child support modification. However, the following changed circumstances are the most often asserted by a party seeking a child support modification:

  • An increase or decrease in income;
  • Loss of employment;
  • The party paying support is legally responsible for the support of additional children;
  • Special needs of the child such as medical, educational or psychological;
  • Changes in medical insurance or coverage; and
  • A child’s living arrangements have changed.

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Child Support Enforcement in Texas

Child Support Enforcement in Texas

When a child support order is issued through a divorce decree, it is registered with the Office of the Attorney General, (OAG), which is the agency responsible for enforcing collection measures for past-due child support. If the non-custodial parent is self-employed or unemployed and failing to pay child support, the OAG will often try to obtain money from the non-custodial parent by using tools available to the state.

Other methods of collecting child support arrears:

  • Judgments
  • Liens against personal property
  • Liens against real estate property
  • Tax refund intercept
  • Income withholding for current and past-due support

In addition to the above, the non-custodial parent may be held in contempt of court, which can translate into incarceration. The OAG can suspend a parent’s driver’s license and professional license, such as a license to practice law, medicine, or real estate. If the parent owes more than $2,500 in child support, he or she may be denied a U.S. Passport, so the parent cannot travel outside the United States.

Child support does not go away. It cannot be included in bankruptcy and it does not stop being reported on one’s credit after seven years. Even if a child turns 18, the non-custodial parent still owes the money and the OAG can initiate collection measures at any time. There is not statute of limitations for collecting child support.

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WHAT ARE THE TEXAS CHILD SUPPORT STATUTORY GUIDELINES

WHAT ARE THE TEXAS CHILD SUPPORT STATUTORY GUIDELINES

WHAT ARE THE TEXAS CHILD SUPPORT STATUTORY GUIDELINES

Under the guidelines, a parent will pay the following percentage of their “net” monthly resources to the custodial parent:

• 20% of net income to support one child

• 25% of net income to support two children

• 30% of net income to support three children

• 35% of net income to support four children

• 40% of net income to provide for five children

• A minimum of 40% of net income for six or more children

In Texas, the amount of support a parent may be obligated to pay is regulated by statutory guidelines. The guidelines take into account the income of the non-custodial parent. Notably, the above percentages are modified if a parent has other children not subject to the suit that the parent has a legal duty to support.

Although the guidelines are presumed to be in the best interest of the children, this presumption may be rebutted in certain circumstances. A party may offer evidence relating to the specific needs of a child. The amount of parenting time exercised by each party, or other case-specific factors which may warrant a deviation from the guideline. Such deviations may give the custodial parent access to a greater amount of support funds.

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WHAT EXACTLY DOES CHILD SUPPORT COVER AND NOT COVER

WHAT EXACTLY DOES CHILD SUPPORT COVER AND NOT COVER

WHAT EXACTLY DOES CHILD SUPPORT COVER AND NOT COVER

 

It is an all-too-common complaint by the parent paying child support that the other parent “spends the money on him/herself”. Many paying parents want to put restrictions on what child support can be spent on, to prevent the other parent from personally using the money. While it may seem like child support is being mismanaged to some – and maybe in some cases it is being mismanaged — Texas law does not support placing restrictions on how child support is spent.

 

Judges do not want to micro-manage child support expenditures. That would simply take too much time. Instead, child support goes “into the pot” so to speak. Child support obviously covers the child’s direct expenditures, such as clothing, food, and daycare. But, it also goes to cover a portion of the house the child lives in and the car the parent drives the child around in.

 

Child support may not actually cover the “extras” for the child, like dance lessons and tutoring. As a child gets older, the expenses grow into items like cars and car insurance. Further, Texas law has no provision for a child’s college expenses, so either a parent has to save for that, or the child will have to bear those costs on his or her own.

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BASIC STEPS TO FILE A TEXAS DIVORCE

BASIC STEPS TO FILE A TEXAS DIVORCE

1. Filing the petition

One of the parties must first file the Original Petition for Divorce. This petition essentially starts the divorce process. After the petition is filed, the court clerk will assign a case number.

2. Legal notice

After the first party, now known as the Petitioner, files the petition, the other spouse, now referred to as the Respondent, must be provided notice; simply telling the other spouse that a divorce has been filed is insufficient. The Respondent can either be served-an action where he or she is provided legal notice-or sign a Waiver of Service if he or she has agreed to receive notice. The waiver does NOT mean that the signer agrees to the allegations in the Original Petition, however.

3. The hearing

A petition for divorce generally will require at least one hearing to make a final decision on all of the issues in the divorce, such as property and debt distribution, and child custody arrangements, among others. During the hearing, the parties present evidence to the court on their behalf. However, if the divorce is uncontested and the parties have already come to an agreement on all of the issues, the non-filing party may not need to attend the hearing.

4. The final decree

Once the issues are all decided, the final divorce decree is signed. Getting to this step can take months or take very little time if the situation is amicable.

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CALCULATING CHILD SUPPORT IN TEXAS

CALCULATING CHILD SUPPORT IN TEXAS

How is child support calculated in Texas? Texas uses formulas and specific guidelines per the Family Code. Typically, this means looking at a noncustodial parent’s income and allocating a certain percentage of it as child support.

The courts look at the monthly net resources of the parent paying child support. This would be their income minus expenses such as Social Security taxes, federal income tax, state income tax, union dues and health insurance expenses that cover the child. Once this number is established, then a certain percentage is used for child support.

This percentage is based on the number of children. For one child, this is 20 percent, for two children, this is 25 percent, for three children, this is 30 percent, for four children, this is 35 percent, for five children, this is 40 percent and for sic plus children, this amount is not less than the amount for five children. This percentage may change if the parent is already paying child support for another child. However, the court has the final say on the amount paid after they take everything into consideration.

Obtaining child support can be very necessary and beneficial for a child. Ensuring the child’s financial needs are met is essential.

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