austintxdivorcelawyer

My firm specializes in child custody, divorce and modification hearings in Austin, Texas. I will give you an honest opinion in evaluating your case and to ensure that each and every one of your goals is achieved. My firm's reputation is to obtain the most advantageous outcome for our clients. Our law firm charges reasonable fees for regular office visits. We understand that you may have urgent concerns or that an emergency will arise outside of regular office hours. Our firm tries to always be available and will return your phone calls. Spanish language services are available.

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WHAT CAN I DO IF I AM NOT RECEIVING MY CHILD SUPPORT?

Delinquent Child Support and Visitation

Child support and visitation rights are considered separate issues by the courts of Texas. It is a common misunderstanding that the two are related. Withholding visitation from your ex could potentially have negative consequences with the court.It may not seem fair that your ex is able to see your children when they aren’t supporting them, but you are not completely without options.

A judge could decide to fine or jail the delinquent parent for “contempt of court” for disobeying the court order to pay child support. The court may also require the delinquent parent to pay part of the outstanding child support to be released from jail.

How the State of Texas Collects Past-Due Child Support

The Texas Child Support Division has a powerful set of legal and financial tools available to them to help them obtain payment from parents who are past due in child support. These tools might include:

• Working with other states to collect child support if the paying parent has moved out of the state of Texas.

• Suspending their driver’s license, as well as any professional licenses, certificates, fish and game licenses they may have.

• Intercepting lottery winnings, federal income tax refunds, and other state or federal money the parent may receive.

• Requiring the parent’s employer to deduct child support directly from their paycheck.

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CHILD SUPPORT OVERVIEW

Child support is usually granted to the “custodial” parent, or the parent who has legal custody of the child, and is paid by the “non-custodial parent,” or parent with whom the child does not primarily reside.

• Parent ordered to pay support is not making payments according to schedule and/or amount ordered

• Support payment is too low, due to promotion or other improvement of economic status of the paying parent

Non-custodial parent may go to court because:

• Support payment is now too high, due to loss of job or economic status

• Support is going to parent with whom child no longer primarily resides

ENFORCEMENT

If the parent ordered to pay child support fails to do so according to the requirements outlined in the divorce decree, the parent to whom payments are owed has the right to request enforcement of the divorce decree. Enforcement measures can be used to collect past-due and regularly-scheduled support payments.

REDUCTION

The amount of support ordered at the time of divorce becomes an issue because the paying parent is no longer earning the kind of money they did when the divorce decree was initially finalized. A parent who finds that they can no longer afford the same amount of child support can request a reduction in the amount they must pay.

MODIFICATION

Either the custodial or non-custodial parent can formally request a modification, or change to the child support requirements established in the divorce decree, via a formal motion.

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HOW DO I KNOW WHAT MY CHILD SUPPORT PAYMENT SHOULD BE?

Texas has a formula to determine the amount of child support the state “presumes” is in the child’s best interest. In a nutshell, child support in Texas is determined by figuring out the average net monthly resources of the paying parent and applying guidelines established by the Texas legislature that require paying a percentage of those average net monthly resources depending on how many children there are.

To determine the amount of monthly child support, apply the percentages below to the average monthly net resources (unless the child lives in more than one household in which case the calculations are different). For 2018, the maximum child support payment in Texas is capped at a percentage of $8,550.00 average net monthly resources. The cap on the maximum average net monthly resource amount will be adjusted every six years according to inflation. Next time it will be adjusted is September 2019. If the average net monthly resources is less than $8,550.00, the amount of child support is calculated as a percentage of the actual average net monthly resources.

  • One Child 20% of net resources
  • Two Children 25% of net resources
  • Three Children 30% of net resources
  • Four Children 35% of net resources
  • Five Children 40% of net resources
  • Six Children Not less than 40% of net resources

If the net monthly resources are more than $8,550.00 the amount of child support may be adjusted upward if the child’s proven needs are greater than the presumptive guidelines amount. A court may order one or both parents depending on their circumstances to pay the difference between the guideline amount and the child’s proven needs, but the judge cannot order more than the presumptive amount of child support or one hundred percent of the child’s proven needs, whichever is greater (unless of course the parents agree to that amount). If the child receives social security or disability benefits from the paying spouse’s old age social security or disability benefits, those amounts are subtracted from the total amount of child support required under the guidelines.

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HOW DO I GET MY CHILD CUSTODY ARRANGEMENT MODIFIED?

Generally speaking, the person seeking a modification in child custody in Texas is going to have to show that at least one of the following has occurred since the original order was entered:

• The circumstances of the child or parent has materially or substantially changed,

• The child, who is at least 12 years old, wants the change, or

• The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.

What Constitutes a Material or Substantial Change in Circumstances?

Examples where Texas courts have ruled that circumstances warranted a modification of custody include:

• Parental relocation affected the child’s relationship with the other parent.

• The parent’s financial circumstances have changed and affect his or her ability to properly care for the child.

• Parental illness affected the parent’s ability to care for the child.

• Parental remarriage negatively affected the family relationships of the child.

When Can a Child Request a Change in Custody or Visitation?

Children who are at least 12 years old have a say about which parent they want to live with. Children are interviewed in the judge’s private chambers and are allowed to explain why they want a change in custody or visitation.

While the court will listen to the child and weigh his or her concerns, the decision is ultimately decided based on the court’s assessment of what is in the child’s best interest.

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Retroactive Child Support AND Medical Support

 

A parent can also request the court to order retroactive child support and medical child support. Retroactive child support reflects the amount of money one parent would owe the other parent prior to the filing of the suit if there had been a child support order in place.

Generally, if a court orders retroactive child support, it is in the case of a paternity suit, with circumstances wherein either the father or mother was not a part of the child’s life prior to the suit and not financially supporting the child.

Medical Child Support

Medical child support is in addition to the amount an obligor is required to pay for child support. The court must specify how health insurance will be provided for a child. The court can order one parent to include the child on his or her health insurance plan, or the court can order one parent to reimburse the other parent an amount that is equal to the costs of health insurance for the child.

Additionally, the court will specify how unreimbursed medical expenses will be paid for the child. Generally, courts order that the unreimbursed medical expenses be split 50-50 between the parents.

Parents have the ability to agree to the issues relating to child support without going to trial or hiring a separate child support lawyer later on. They can even agree to an amount that deviates from the child support guidelines. Once the court approves the agreement, it becomes a judgment.

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Understanding Child Support in Texas

Eligibility

  • CHILD: Generally, child support is due and payable for a child until the child turns 18 years-old, graduates from high school (whichever occurs later), marries, dies, or is emancipated (declared an adult) by court order. If the child is disabled or considered to have special needs, a parent may be ordered to pay support the child indefinitely.
  • OBLIGEE: The person responsible to receive the actual payment of child support is called the “Obligee.” Generally, but not always, this is the person with whom the child lives more than 50-percent of the time.
  • Who is Responsible/Who Has a Duty to Pay?
  • By law, both parents of a child have a duty to care for the financial needs of their child. In Texas, “parents” are considered to be:
  • the biological mother,
  • a man presumed to be the father,
  • a man legally determined to be the father,
  • a man who has been adjudicated to be the father by a court of competent jurisdiction,
  • a man who has acknowledged his paternity under applicable law, or
  • an adoptive mother or father.

Payment Calculations

Texas law gives guidelines on calculated child support, based on the number of children involved and the income of the parties. The standard levels are:

20% of net income for 1 child

25% of net income for 2 children

30% of net income for 3 children

35% of net income for 4 children

40% of net income for 5 children

Not less than 40% of net income for 6 or more children

There are other factors that may influence the amount you will be required to pay or will be eligible to receive on behalf of your child(ren), for example:

  • the child’s age and needs;
  • the parent’s ability to contribute to the child’s support;
  • whether the paying party has actual physical custody of another child or children;
  • employee benefits such as housing or a company car;
  • health insurance and uninsured medical expenses for the child;
  • extraordinary educational, healthcare or other expenses of the child.
  • Texas Family Code, Section 154.123

Insurance

Both parents are required to ensure the child is covered by health insurance. Generally, the person who is responsible to pay child support also has a legal duty to provide health insurance, or reimburse the other parent for the health insurance premiums for the child. A court may order that a child be added to a parent’s health insurance policy.

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What is Considered Community Property and Separate Property in a Texas Divorce?

 

Texas is one of nine states considered a community property state. This means that in a divorce, most property acquired during the marriage is considered the property of both spouses and must be divided “equitably” under Texas law. Understanding the difference between community and separate property is important to understand how assets and even debts will be divided in a divorce.

What Is Considered Community Property?

As a general rule, property acquired during the marriage is considered as belonging to both spouses equally. Community property may include the family home, the mortgage interest income earned by investments, furniture, and wages earned during the marriage by either spouse. A pension, 401k, or employee benefit plan that accumulates during the marriage is also considered community property.

Separate property is considered any property or debt that was owned prior to the marriage or after the date of separation. Gifts and inheritances received during the marriage are also considered separate property if held separately.

Some property may begin as separate property and become community property during the marriage. For example, some equity in the family home may be separate property if the down payment was provided by one spouse’s separate property prior to marriage but it may become community property as time goes by and assets are mixed. This is also true of an inheritance. While an inheritance is considered separate property, even if it’s received during the marriage, it can become community property if the inheritance is mixed with marital funds and no separation is maintained.

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