WHEN CAN YOU MODIFY YOUR CHILD SUPPORT
Child support orders can only be changed by the entering of a new court order. Informal agreements between the parties are not effective to change the amount of court ordered child support. Therefore, while you and the other party may agree to a change in the amount of child support to be paid, unless the agreed to amount is recited in a new order signed by the court, the party obligated to pay the support could be required to pay the amount originally ordered by the court if a dispute arises and could also be held in contempt of court and jailed.
If you and the other party are unable to agree to a change in the amount of child support to be paid, then the issue will be determined by the court.
FILING THE MODIFICATION
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.
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.
Does it matter who files for divorce first?
Either the husband or the wife may file for divorce in Texas. Sometimes, when it appears that divorce might be coming, we are asked whether it matters who files first. The short answer is: it does. While the burdens of proof and presenting evidence do not change based on who files first, other, important, tactical factors will vary.
For example, the person who files first will usually get to present his or her case first at trial. This is an important advantage, because research shows that people don’t like to remain uncertain about an issue, but instead want to make a decision on the issues soon after starting to consider a controversy. And so, being able to present your case first works to sway the Judge or the Jury deciding the case, to your side.
Another advantage of filing first is that you will get the last word in the Closing Argument. And, research shows that the last information that we receive is also more persuasive than most information earlier-presented information. This is why Closing Arguments are powerful and important. And, if you file for divorce before your spouse does, then in most cases, you will get to present your Closing Argument first.
Also, when you file your divorce case first, you can plan to file it when you are emotionally and financially ready to do so. And, at least in Texas, you get to choose on which of the available hearing dates (for Temporary Orders and the like) your initial hearing will be set. And, if it is possible to file your divorce in more than one Texas County, then you will get to choose the county where the case will take place. This could be very important.
But, if your spouse files for divorce first, then you will have to react to that filing. It will have already been filed in a county selected by your spouse (if it is proper in your case to file it in more than one county). The initial hearing will have already been set for a time that is convenient for your spouse and his or her lawyer, and not necessarily when it is convenient for you and your lawyer.
Filing your case first can give you some important advantages.
Like many other things, divorce in Texas is a bit different than in other states. One of the most obvious differences is that Texas is one of the few remaining community property states when dividing marital property.
More specifically, Texas is one of very few states that requires divorce mediation when child custody or visitation issues are contested during a divorce (except where there are allegations of abuse or domestic violence).
Mediation can be a very helpful tool, and there’s no need to wait for a court mandated reason to use it. In fact, for many couples, mediation is the best path through divorce, allowing them to keep the children they love at the heart of the process.
Children are often the greatest victims of divorce, but your children don’t have to be. If you and your spouse are willing to work together for the good of your children, you can achieve a successful divorce that is often less expensive than traditional litigation, without ever stepping foot in a courtroom.
A mediator keeps things fair for all parties
In a traditional divorce scenario, two opposing teams of attorneys fight each other for the best interests of their respective clients. This is effective, and often necessary, if one side or the other is unwilling to act reasonably.
Contrastingly, in mediation, parties sit down at a neutral location with a professionally neutral mediator. The mediator understands the full scope of the legal issues that must resolve in the negotiation, and also understands how to ensure that each party wins and sacrifices fairly to reach an equitable agreement, especially when it concerns children.
While mediation is helpful for divorcing couples in many different scenarios, those with children can reap additional benefits that can pay dividends for years to come.
A mediator protects children first
When you use a mediator to mediate your divorce with children, you make a very specific statement to your family and community that you put your children first above your own privileges and comfort.
A mediator walking with a family through the divorce process understands that what one parent or another wants, or is even rightfully entitled to, is not as important as what is best for the children in the family.
A good mediator requires that both parents sacrifice for the sake of their children, and also gives parents great opportunities to display hard lessons to their children about love and responsibility.
Not only may you save significantly over the cost of traditionally litigated divorce by avoiding a courtroom, you may save yourself thousands in future therapy costs because you chose to love your children well in this difficult season.
Just because you and your spouse want a divorce doesn’t mean that your children should lose any depth of relationship with either of you. With the help of a mediator, you can preserve your relationships with the children you love, and demonstrate that divorce doesn’t have to be the ugly, mean thing it’s often presented to be.
While many parents wish to have sole custody over their children, in practice it is rare that it is granted. The courts generally assume that it is in the best interest of children for their parents to have joint physical custody. However, there are situations in which sole custody is the best option, particularly when one parent has an issue with substance abuse or mental health issues.
If sole custody is being sought by one of the parents, the standard for making a decision does not change. As with any other custody case, the outcome will be determined by what is in the best interest of the child. In reaching a conclusion on what is in the child’s best interest, the court will examine factors such as the ability of each parent to care for the child, the emotional and physical needs of the child, the current relationship each parent has with the child, and the stability of the home seeking sole custody.
A common example of when the court may grant sole custody is in a situation where one of the parents has demonstrated a clear history of family violence. Another is when a parent has a history of substance abuse or mental illness that leaves him or her unable to consistently provide proper care for his or her child.
Whether you are seeking primary custody or want to prevent the other parent from getting sole custody, remember the court will always look at what is in the best interest of the children.
GETTING CHILD SUPPORT WHILE MY DIVORCE IS PENDING
Often, once a divorce is initiated, a need for support arises for the custodial parent (the one with whom the child or children primarily reside). A common question that clients in this situation ask is “Can I get child support while my divorce is pending?” The answer is yes, and there are a few ways for child support to be ordered while a divorce is pending, through the use of temporary orders. Temporary orders can mandate that temporary child support should be awarded.
What are Temporary Orders?
Temporary Orders are an order issued by a judge, or agreed to by the parties,that takes effect for the duration that a family law case in pending. Often, temporary orders are negotiated, agreed, and signed voluntarily by the parties. Once the order is signed by the parties, it is filed to the court and signed by the judge. If the parties cannot agree on their own, some courts require that the parties attend mediation and attempt to come to an agreement in that way, before being allowed to schedule a temporary orders hearing in front of a judge.
What if we can’t agree?
If the parties are unable to come to an agreement over the terms of the temporary orders, a party may file a petition or motion for temporary orders and there must be a hearing in front of a judge. A temporary orders hearing can feel like a trial, as the hearing usually involves testimony and evidence. Witnesses may be called and cross-examined, and documents, photos, etc. can be introduced into evidence.
Once a court has entered the temporary orders the parties must abide by them for the duration specified in the order. Usually it’s until the final order of the court is entered, but the court has discretion in setting a deadline.
Divorce is naturally a complex process from both an emotional and a financial standpoint. If you and your spouse struggle to see eye to eye on matters such as property division, this only makes matters challenging.
However, even in the most amicable of divorces in Texas, you and your spouse may still run into some hiccups. Perhaps you have agreed on most areas of dispute, but there are still a couple of issues that you are having trouble resolving. In this situation, you and your spouse may benefit from a process known as divorce mediation.
What exactly is mediation?
Mediation is a form of alternative dispute resolution that allows you and your spouse to take part in a negotiation process that a neutral third party facilitates. In mediation, the third party does not do any decision-making.
How do I know mediation is best for me?
Mediation is an ideal option for you and your future ex if you want a process that is hands on, structured and short term. Your third party will supervise your and your spouse’s exchange of information and help with the bargaining process. The goal of your mediator is to assist both parties with finding common ground.
You can also expect your mediator to help you to address any expectations that are simply unrealistic. In addition, this party may provide some unique solutions for you that you and your spouse may not have considered.
Benefits of mediation
A huge benefit of mediation is that it is a faster process than going to trial, and therefore, it is comparatively inexpensive. The procedures dictating mediation are also much simpler than those for formal litigation.
Another advantage of mediation is that it is often less stressful than litigation, which is especially ideal if children are involved in the divorce proceeding. Furthermore, if you have children, by mediating a divorce, you and your spouse get to practice working out issues on your own outside of court, which you will eventually have to do as co-parents after you finalize the divorce.
Many clients in our Austin divorce cases want to know “who gets the house”. The home is often the largest single asset in a divorce, so it is important to know what factors are important in making this decision.
Judges distinguish between who gets the house on a temporary basis, while the divorce is pending, versus who will get the house and liability for it in the long run after the divorce is finished. When children are involved, judges will want to keep the children’s lives as stable as possible and not move them around too much. If it makes sense, the judge will try to keep the children in the house at least on a temporary basis while the rest of the divorce is being worked out. If the children have to be moved, the judge will want the parents to plan the best time to make a move.
The ability of either spouse to continue making the mortgage payments is of obvious importance. Judges do not want to impose any liabilities on a spouse that in all likelihood cannot be met. During the temporary phase, a judge may require the primary parent and children to live in the house while the other parent makes the payment. Or, the judge may require payments to be made out of existing assets. However, in considering the long-term award of the house and liability, the ability of the primary parent to make the mortgage payment and otherwise afford the house is of utmost importance.
Regardless of which spouse gets the house and is ordered to make the house payment, if the mortgage is in both spouses names, both spouses will continue to be ultimately liable. In other words, if the spouse who is ordered to make the payments fails to do so, the mortgage company could still look to the other spouse for payment. The divorce judge has no authority to relieve either spouse from liability on a jointly held debt. Likewise, although the judge may require the spouse taking the house to attempt to refinance the debt into his or her sole name, if the spouse cannot get new financing, the divorce judge has very little enforcement remedy as to the refinancing.
When one spouse takes the house and debt, he or she will be required to sign a deed of trust document that gives some protection to the other spouse if the payments are not made. So, if the spouse that took the house gets three months behind in payments, the other spouse would have the authority under the deed of trust to catch up the payments and take over the house altogether.
If neither spouse can afford to keep the house, then the judge can order it sold. If one spouse has a legitimate concern that neither spouse will be able to pay for the house in the long run, that spouse can make a request to the judge to order the house sold so both spouses are relieved from the liability.