Archive for November, 2019






If you are involved in any type of dispute involving child support in Texas you have probably been given advice from well-meaning family and friends about what your options and rights are. Unfortunately, some advice that may have been accurate in the past may not be accurate now and because each family law case presents a unique fact situation even completely accurate statements about something that happened to another person may not matter in your case. So, here are 10 child support misconceptions that we would like to clear up:

  1. The guy is always going to be ordered to pay child support.
  2. Child support must be set according to the guidelines in the Family Code.
  3. Whatever the Attorney General says goes.
  4. If you have equal custody of the children there will be no child support awarded.
  5. All of the child support paid to the state disbursement unit goes directly to the person caring for the child
  6. The person paying child support for the child should get credit for any money they spend that goes towards caring for the child.
  7. The person being paid child support can only spend that money on food, clothing, and shelter for the child.
  8. Once child support is set it cannot be changed.
  9. If you don’t have possession of your child you don’t have to pay child support.
  10. If you are being denied access to your child it doesn’t matter that you stop paying child support.

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How to Prove Common Law Marriage in Texas

Texas law includes provisions for common law or “informal marriages” that have not been formally certified by the state. These informal marriages, once proven, carry the same rights and responsibilities of formal marriage.


An informal marriage in Texas is a legal marriage but one that exists without the formalities or ceremony of a typical formal marriage. In order to prove that a common-law marriage exists, the parties must first demonstrate that they are legally eligible for marriage in the state of Texas. Legal eligibility requires the following:

  • Neither party is already married, either formally or informally, to anyone else at the time the marriage was created.
  • Both parties are at least 18 years old.
  • Neither party can have had a divorce in the previous 30 days.
  • The parties cannot be too closely related to one another.

If the parties are legally eligible for marriage, then they must meet three additional requirements to qualify as legally married.

  1. Both parties must mutually agree that they are married. You cannot marry someone else without their consent.
  • Both parties must tell other people that they are married. You can demonstrate this by, for example, introducing the other party as your spouse, co-signing leases as a married couple, or filing joint tax returns or credit card applications as spouses.
  • The parties must live together in Texas as husband and wife. If, for example, the parties acted as husband and wife in another state but did not present themselves as married to people in Texas, then the parties are not eligible for informal marriage in Texas.

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Factors That Determine Child Support

In Texas, the parent that makes the child support payment depends on which parent has physical custody. Typically, this means the custodial parent or the parent who spends the most amount of time with the child will receive support payments. Texas law has a statutory formula for establishing and calculating child support. The amount of money the noncustodial parent can expect to pay in child support depends on several factors.

Calculating Child Support Payments

If the noncustodial parent has more than one child or they are paying support for more than one child, the amount of income they will need to provide may be lower.

The Texas child support guideline states the following:

  • One child: 20% of the paying party’s net income
  • Two children: 25% of the paying party’s net income
  • Three children: 30% of the paying party’s net income
  • Four children: 35% of the paying party’s net income
  • Five children: 40% of the paying party’s net income
  • Six or more children: not less than 40% of the paying party’s net income

Child support is also dependent on the noncustodial parent’s monthly income minus tax deductions. Texas has a cap on the amount of monthly income that can be used when calculating child support. If a child has “proven needs” above the cap, a judge can order one or both parents to make up the difference.

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To increase or decrease payments there are specific requirements that must be met to modify a previous child support order. The requirements necessary to modify a prior child support order are:

  1. The circumstances of the child or an affected party have materially and substantially changed; or
  2. Three years have elapsed since the order was entered or last modified, and the amount of child support differs from the statutory guidelines by either 20% or $100.00.

Material and Substantial change in the circumstances of the child or an affected party must be clearly shown at trial. To prove a Substantial and Material change in circumstances, a conservator must show evidence at the final hearing of:

  1. The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
  2. The financial needs/expenses at the time of the request for the modification.

If evidence of financial needs/expenses are not submitted and proved regarding both (1) the prior divorce/modification and (2) the recent modification, then no Substantial and Material change can be adequately proved.

If one conservator decides to file a modification of child support within three years just because the other conservative received a better job, it may be dismissed. At the end of the day a Court has broad discretion on determining what is Substantial and Material and may allow the case to be heard and give an unfavorable ruling, but if that occurs you will have the ability to appeal the judgment and request attorney’s fees. It is important to know in any family law case the Judge has extremely broad discretion and interprets case law in a way that he deems fit using the Best Interest Test.

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The term “joint custody” is NOT a term that has legal significance under the Texas Family Code. The language in the family code that does use the word “joint” is “joint managing conservator,” and that doesn’t mean what most people think it means. This blog post is going to explain the difference in the two terms.

What is Joint Custody?

In Texas, we don’t use the term “custody” to describe the time parents spend with their children. We use “possession and access” to describe what most people think of when they use the word custody. When people use the term joint custody they typically are speaking of a 50/50 possession and access schedule. The long and short of that blog post is that there is no 50/50 possession and access schedule listed in the Texas Family Code and that there are multiple “equal” possession schedules that courts use.

What is a Joint Managing Conservator?

The term conservator describes a legal relationship a person has with a child in Texas. It is not the same thing as a possession and access schedule. The presumption in Texas is that biological parents should be named joint managing conservators of their children regardless of what their possession and access schedule is going to look like. Section 153.135 of the Texas Family Code makes it clear that having equal periods of physical possession of and access to the child is not the same as being a joint managing conservator. Most people in Texas are named joint managing conservators of their children while the majority of possession schedules are not completely equal.

Joint Managing Conservatorship does not mean that the parties are going to have completely equal rights and duties when it comes to the child either. The court has discretion when naming parents joint managing conservators to limit rights and duties. Joint Managing Conservator is just a title given to a party, it does not necessarily say anything about the time a person is entitled to spend with a child or the extent of the relationship they have with the child.

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It seems many case involving children there has been the issue of equal (50/50) possession. The Texas Family Code does not address child support and equal possession. Child Support is only provided for in the Family Code if one parent has a standard, or “expanded”, possession Order and the other parent has the rest of the time with the child or children. Many parents then ask, “Why am I paying child support if I have them the same amount of time as my ex?”

The Answer? You are paying child support because your income and your ex’s income aren’t the same. The higher income earner can provide a better home, better clothes, more cell phone apps – basically more and better of everything. Therefore, Judges (although not bound to do this by legislation or statute) almost uniformly offset the child support obligations of each. If Dad is making $125,000 a year and Mom is making $50,000 a year, using the Texas Child Support Guidelines, the Court will figure what Mom’s child support would be and then calculate what Dad’s child support would be then offset the two amounts. The bottom line is someone is going to pay and having equal possession will not stop that outcome UNLESS – both Mom and Dad make the same income.

So, agreeing to and fighting for, equal (50/50) possession of your kids when you and your ex-spouse do not make the same money can reduce the amount a parent will pay in child support thus reduce the amount a parent will be receiving. Often, the higher income earner can survive paying out whatever the amount of support works out to be – but the lower income earner can’t afford to lose the money they would have gotten had a standard or expanded possession order been in place.

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Custody — or conservatorship — regarding a child in Texas can always by modified until the child turns 18. Once a court order has been entered regarding custody or conservatorship, a parent must prove that there has been a “material and substantial change of circumstances” regarding one of the parents or children that requires modification of the court order. And, the new order sought must be in the best interest of the child.

A modification begins with the filing of a petition to modify the prior order. A modification proceeding generally follows the process for any other suit, including service of process, time to answer, and right to trial if an agreement cannot be reached.

The most common modification of custody or conservatorship orders involves a modification of child support. The “material change” may be the obligor parent getting a raise or better paying job, requiring an increase. Or, the obligor parent losing his or her job, requiring a decrease in the amount of child support. Other reasons to modify a conservatorship order in Texas may be to adjust the periods of each parent’s possession with the child to accommodate a changed work schedule or the child’s schedule. Sometimes one parent wishes to change the right to establish the primary residence of the child from one parent to the other.

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