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Texas Custody Schedule Changed Due to School Absences

Originally published by Robert Epstein.

iStock-1252096710A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks.  The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020.  He alleged the child had been tardy five days and absent two days during the fall semester of 2019.  He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.

 

He testified the child’s official school record showed the five tardy days and two unexcused absences and that the mother was responsible for getting the child to school on those days.  He presented a business records affidavit of the school’s records custodian dated January 30 and the child’s attendance records.  The records showed the child had four unexcused absences and five tardy days, including the specific days identified by the father.  He also testified that his attorney had attempted to resolve the issue without going to court.

The mother presented a business records affidavit dated June 16.  The attached records did not show the child was tardy on three of the dates on which he was shown tardy in the records introduced by the father.

The child’s kindergarten teacher testified she would rely on the records dated June 16.  She testified children are sometimes sent to the office when they arrive late, and that she and the office personnel can both input tardies.  She also testified that the system she uses and the system used by the office are different and that the two sets of records were from two different systems.

The mother testified she did not know if she was responsible for getting the child to school on three of the dates, which were on the days the parents alternated possession.

The trial court ordered the parties to use the standard possession and access schedule and awarded the father attorney fees.

Mother Appeals Trial Court’s Confirmation of Standard Possession Order

The mother appealed, arguing the trial court abused its discretion because it did not have sufficient evidence to support the order.  She argued the kindergarten teacher was an expert, and the trial court should have relied on the June records because the teacher testified she would rely on them and because they were more recent.

The appeals court noted the trial court had recognized the teacher as an expert in teaching, but not in education administration.  She had testified she was unfamiliar with generation and interpretation of school attendance records.  Although she acknowledged the discrepancy in the records, she could not explain it.  The appeals court further noted the trial court could have found she would rely on the June records because she was familiar with that report and not the one the father submitted.  The trial court had the discretion to discount her testimony.

Appellate Court Finds that Trial Court Properly Considered Conflicting Evidence

The appeals court noted that the trial court could also have found the January attendance records were more reliable than the June attendance records.  The June records contained a summary of absences and tardiness on a single page, which the appeals court noted was blurry and hard to read.  The January records included a “detailed accounting of the daily reports of attendance, absences, and tardies. . .”

Additionally, the court could have believed the father’s testimony that the mother was responsible for getting the child to school on the identified tardy and absent days.  The mother had admitted she was responsible on some of the days and did not remember who was responsible on the other days.

The appeals court found the trial court did not abuse its discretion in deciding to apply the standard schedule because there was substantial and probative evidence supporting it.

The appeals court found there was insufficient evidence supporting the award of attorney fees and remanded the case to the trial court on that issue, but otherwise affirmed the trial court’s order.

Walk into Court Prepared: Call McClure Law Group Today

A significant issue in this case is the conflicting evidence presented by the parties. Although the mother presented a witness to testify about the records, that witness was unable to explain the discrepancy.  If you are experiencing a custody dispute, a skilled Texas custody attorney can work with you to identify the evidence to best support your case.  Please contact McClure Law Group at 214.692.8200 to set up a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What goes into an award of spousal support here in Texas?

Texas appeals court asked to reconsider same-sex divorce case

Originally published by On behalf of Laura Dale.

The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.

One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.

Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.

Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.

The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.

Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

Special Needs Trusts: What they are and how they can impact your Texas divorce

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Special needs trusts are designed to hold onto assets of a person who is receiving governmental benefits like Supplemental Security Income (SSI) and Medicaid. Whatever assets are held in the trust would be available to augment and add to the level of care that a disabled needs. The main force of the special needs trust is that the person would still be eligible to receive the government benefits that they need due to those assets being held inside of the trust, rather than at their ready disposal or usage.

There are two varieties of special needs trusts. For example, you could create a special needs trust for a child of yours who has a special need or a disability. That special needs trusts may be created by you, your spouse or by both of you under estate planning provisions. The other type of special needs trust is one where the trust is created out of the special needs’ person’s assets or money. These trusts will reimburse Medicaid for any funds spent on the special needs’ person’s behalf.

What impact will a special needs trust have on your divorce

If your child or you are receiving benefits from Social Security or Medicaid, those agencies provide only limited guidance for you and your spouse in a divorce setting. Special needs trusts can play an important role in the negotiation and settlement process in divorces because they allow for you and your spouse to plan on how finances will be handled immediately after a divorce. This is critically important when one of the parties or your children have a special need and rely in part on government assistance to receive medical care, pay bills or both. Spousal maintenance, child support, and other court-ordered payments can be held in these trusts.

Think about this example to better illustrate my point. Suppose that you have a fifteen-year-old son who receives $500 per month in SSI benefits as well as Medicaid. Within your final decree of divorce, your ex-spouse is ordered to pay you $750 per month in child support which is paid directly to you.

Under the rules of Social Security, 1/3 of the child support that you receive is excluded from income limits that go towards determining eligibility, only $500 goes toward the government’s calculation of income and assets to determine whether or not your child is eligible to receive SSI benefits and Medicaid. Even still, the $500 of support that counts towards the calculation will wipe out the $500 of potential benefits ($500-$500 = $0). That means no SSI benefit every month and no Medicaid to help pay for necessary medical treatment. You may have been planning the entire divorce to live in part on the child support and SSI payments. Now you are in a position where you have only one of those sums to count on for survival.

Here is how you can structure your final decree of divorce to protect yourself and your child in the future. The final decree of divorce should require your ex-spouse to pay the child support directly to your child’s special needs trust. That will allow you to slip by the government’s income/assets test and receive both SSI and child support. This benefits you and your child and does not harm your ex-spouse in any way. It is a win-win all the way around.

Yes, there are costs associated with creating a special needs trust. You may even have to hire an estate planning attorney to at least give guidance on the subject if not create the whole thing for you and your family. However, the short-term investment than hiring an attorney and creating the trust entails will be quickly canceled out by the increase in benefits and child support that you are fully able to take advantage of. Medicaid eligibility is a huge part of the equation, one that you may not be able to accurately project how much money you will save throughout your special needs child’s life.

The bottom line is that you can have your child support payments ordered to be put into a Special Needs Trust. The cash payments by your ex-spouse which instead be converted into distributions by the Trust whenever they are needed.

Take care of these issues before your divorce is over with

Another important point that I want to stress to all of you today is that you should do whatever it takes to have the issues settled before your divorce concludes. If you do not, you run the risk of having the SSI payments reduced by the child support (as we saw above) or lost completely due to your receiving child support payments.

Whenever a child support figure is set, whether by agreement or order from a judge, I would recommend that the attorneys in your case agree to hire an attorney who has experience creating special needs trusts. There are details that this attorney must be able to sort out and it is not common to find a family law attorney who is also a competent builder of a special needs trust.

As far as your final decree of divorce is concerned, it should order that your ex-spouse make a payment for your child’s special needs to the Trustee of the Special Needs Trust each month. The resources and programs that are available to you and your child should be considered when negotiating child support. A judge will do so, and it makes sense for you to consider that when making a settlement offer for child support. Also, you need to think ahead to the future to determine if your child will need either more or less care and therefore monetary support as he or she ages.

I know of some people who would tie the amount of child support paid to the amount of SSI benefits that are paid. They would take the amount of SSI benefits and subtract that amount from the amount of child support that would otherwise be agreed to. That reduced amount would be the child support figure that is agreed to. Here is why I think that is a bad idea and why I would advise a client against doing so.

If your daughter is disabled and your divorce decree states that there will be an offset of the child support obligation for each dollar received in SSI benefits, this does not take into consideration that your child’s needs may increase. You can try to go back to court in the future to have the child support orders modified based on a substantial change in the circumstances of your case and probably win on that basis. The increase would need to be reported to the Social Security Administration. This will cause a substantial decrease in the amount of SSI that your child can receive.

There is a chain reaction that follows this decrease in SSI benefits due to your divorce decree tying the amount of child support that your ex-spouse has to pay to the amount of SSI benefits that your child receives from the government. The lesser amount of SSI increases the child support obligation, so on and so forth. What you have done is set yourself up for a roller coaster ride of increases and decreases in the number of benefits you receive and child support that your ex-husband has been ordered to pay you. This will go on and on until the SSI benefits completely go away.

As far as I can tell, you should just agree to a specific dollar value for child support. Do not tie child support to the SSI benefits that are also received. Do not have the child support payments go to you directly, but rather into a special needs trust. Your case will not look exactly like any of these examples that I have provided you with today. With that said, I think these examples can paint a clearer picture of the circumstances that you need to be aware of. Along with your attorney, look into your options and you can plan a course for your case that benefits you and your child.

How will a judge determine that your child is disabled?

The definition of “disabled” changes depending on who or what group you are asking. The DMV may find your grandmother to be disabled just based on a note sent by her doctor. The military may declare you to be disabled when you are not able to pass several mental or physical tests. Social Security makes disability determinations based on the ability to work and earn a sufficient income for yourself to live on.

Your family court judge has their criteria to look to when determining whether or not your child suffers from a disability. Whether your child requires substantial care and personal supervision because of mental or physical impairment is an important part of the judge’s analysis. Those impairments must also render your child unable to care for himself or to provide a basic level of self-support. These impairments must be in place before your child’s 18thbirthday, as well.

If you are trying to establish in your divorce that your child is disabled, you are likely trying to do the same through Social Security to establish SSI benefits for him or her. The impairment must be expected to last for at least 12 months or result in the death of your child to be approved for SSI. AS I mentioned earlier, it is a job-based analysis that Social Security will undertake. If your child is not expected to be able to work on a full time, sustained basis.

It is likely that if your child has already been approved for SSI benefits, he or she would also meet the first part of the disabled test for Texas family courts. That is, your child would be unable to support him or herself absent monetary support from one of their parents (or both). Requiring constant supervision and care is not necessarily a part of the SSI analysis, but it would follow that requiring constant and around the clock, care would mean that your child is also unable to perform substantial gainful activities in the workplace.

If your child has not yet been examined by Social Security for benefits, then your child’s doctor’s will need to act as witnesses in a trial or hearing to help establish their disability. Often teachers will work closely with special needs children and are therefore great at testifying as to their limitations currently and their prognosis in the future. These folks have direct experiences with your child and are oftentimes stronger witnesses than medical experts who know nothing of your child beyond the medical records provided to them.

You may want to consider videotaping your child throughout a day just to give the judge an idea of what a typical day looks like for your child. What special needs does your child have? Do you have to go to great lengths to feed, bathe or care for your child? This can be especially powerful evidence if your ex-spouse testifies that your child’s condition is not that severe and that child support after adulthood is reached would not be necessary.

More on child support for disabled children in tomorrow’s blog post

Thank you for choosing to spend part of your day with us here on our blog. We enjoy sharing relevant information with you and helping the people in our community. If you have any questions about today’s blog please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are a great opportunity to learn more about family law, to ask questions of an experienced family law attorney and to receive feedback about your particular circumstances.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Spousal support in Texas: What it means

Originally published by On behalf of Laura Dale.

After a marriage ends, spousal support in Texas is not a guarantee. Even then, it is limited to whatever is necessary to provide for the receiving spouse’s minimum basic needs.

What does that mean? Well, for starters, spousal support is limited to no more than $5,000 per month or 20% of the paying spouse’s income — whichever is smaller. However, the exact definition of what equals a spouse’s “minimum basic needs” isn’t clearly defined. That gives judges — and dependent spouses — a little leeway.

Some of the most common factors a judge might consider when setting a spousal support payment include:

  • A mortgage or rent payment
  • Utility payments
  • Car notes
  • Health insurance premiums
  • Medical expenses
  • Monthly groceries

Spousal support is generally designed to be temporary relief while the dependent spouse tries to gain their financial footing. It’s generally only awarded for five, seven or 10 years (depending on the duration of the marriage) — and only so long as the dependent spouse is still unable to meet their own basic needs.

Exactly what makes a dependent spouse unable to meet their own basic needs can vary from situation to situation, but some common examples include spouses who have put aside their own career developments to take care of the home or family. A spouse who develops a physical or mental disability during the marriage may also reasonably expect support. Other spouses may be awarded support so that they can more easily return to school or develop a trade.

If you hope to receive spousal support after your marriage ends, it’s smart to talk over your expectations and hopes with an experienced advocate.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

What actions should you avoid concerning your children and divorce in Texas?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Before you begin your divorce it is wise to consider how you are going to parent your children during the case. There isn’t much information out there that touches on this subject (at least that I could find) so I wanted to share with you some pieces of advice that I have cobbled together through my years of being a family law attorney and parent. We spend a great deal of time on this blog talking about the law and how it applies to your family, but spend relatively little time discussing how everything impacts your ability to parent.

Today I am going to try and save you some heartache and problems of all sorts by sharing some tips that you can implement to avoid mistakes in parenting and managing a divorce. While not all of these pieces of advice may be relevant to you, I believe that many of them will be.

If you are moving, do so with your child in mind

It is unavoidable in most cases that either you or your spouse will be moving out of the family home as a result of the divorce. In many instances, the move will come before the beginning of the divorce. Your home environment may be so toxic an inhospitable that you need to leave for the sake of your children and yourself. In other instances, you will be ordered to leave the house due to your spouse being awarded temporary exclusive possession of the home.

Either way, if you are leaving the home you need to be aware that wherever you choose to move needs to be a place that your child will feel comfortable in. Here is where we need to walk a fine line. On the one hand, I just said that your new residence needs to be a place that your child feels comfortable living in. That means you shouldn’t pick the cool condo downtown with the great view if you have four kids that will be coming over in a few weeks for their first visit since the start of your divorce.

Your choice in a new home needs to be a blend between affordability and practicality. Your children will begin to feel comfortable in your new home the more time they spend there. It doesn’t have to the prettiest house in the world. All it has to be is a place where you can house your children during the times you have them and place where they are safe. Everything else is just gravy on the biscuit.

You should treat your children the same way you would have you remained in the family home. Do not treat your children any differently just because you are in a new home. This would be enough to cause the children to feel even more out of place than they normally would. Rather, assign your children chores (age-appropriate) just like you would at home, discipline the kids just like you would at home and then play with the kids just like you would at home. If you can manage to do all of these things you will have found the sweet spot for parenting in a new environment.

Let your kids be kids and don’t involve them in the process of your divorce

Your children are such a big part of your life that it would be easy to let the divorce case begin to bleed over into your parenting of your kids. It does make sense on some levels to keep your children informed about the case just so they are not completely clueless about what you and their other parent are going through.

However, the individual facts and circumstances associated with your divorce do not necessarily need to be shared with your children. First of all- they are children. They do not have the mental faculties to process all of the circumstances of your case. Even teenaged children have never dealt with the things you are dealing with. They are not prepared to handle what you are going through. The last thing you want to do is cause them stress unduly.

Another huge part of this discussion is that your court orders will bar you from saying negative things about your spouse to your children or from involving them in the case. The best thing to do would be to keep them up to date on the progress being made. You can let them know how close you are to the end of the case and what steps need to be taken to complete your divorce.

You do not need to share a timeline because you don’t know how much longer you have or what could happen to delay your case without notice.

The other thing that I see parents doing, especially with older kids, is using the kids as messengers. Having your child give updates to your spouse during the divorce is not a good thing to do. Telling your child partial information on a subject causes them to wonder and worry about the significance of the message that he or she may be relaying for you. Also, depending on the reaction that your spouse has to the message, your child may feel like he or she has caused their parent pain. You can avoid this problem by communicating directly with your spouse and not using your child as a means to do so.

Be careful with what you say about your spouse in front of the kids

You may be in a position where you are livid with the actions and decisions of your spouse. You may feel that this divorce was caused entirely by him or her and that you are the innocent party in all of this. Even if you completely justified in feeling this way you need to be careful about voicing your negative opinions about your spouse in front of your children. Not only does this violate the court orders but it can also be a huge impediment to your children transitioning into their lives post-divorce.

Remember that your children are not exposed to varying viewpoints like an adult is. They go to school and they interact with children and teachers there, but then they come home and have you and your spouse as role models. As such, they value what you have to say perhaps more than you might think. As a result, you need to be able to take this to heart and start to value what you have to say as much as your children do.

The other thing that I will take note of is that what you say about another person is not necessarily reflective of him or her, but more reflective of yourself and your character. Think about all the times in your own life that you have heard another person speak badly of a person who is not in the room. Does the person talk ever look like an upstanding, honorable person? I’m willing to bet not. Most of the time when I hear another person talking about someone who’s not within earshot, I just wish he or she would stop talking. Don’t let your children see the worst side of you in badmouthing their other parent. They probably feel caught in the middle of you and your spouse to a great extent already and hearing you say negative things will only add to that problem.

Let your ex-spouse live their life

It is normal to be at the very least curious about the goings-on of your ex-spouse. After all- that person was your partner in life for an extended period, the other parent to your child (although that hasn’t changed) and recently went through a trying ordeal with you. Now you are left with questions about how the marriage failed, what happens next and what will happen to you. Wanting to know how your ex-spouse is handling the situation is understandable.

However, you would be best served to not ask your children for those updates. First of all, your children are not going to be very accurate at the relaying of messages especially if they are younger. To test this idea of mine out, go ahead and ask your five years old what happened at school today. I can almost guarantee their answer will be about 10% truth and 90% fantasy. Kids are just not very good at recalling information that has to do with emotions or occurrences. If you want to know about one specific event they may do ok, but a series of events or something like that will be difficult for them. Why bother asking, in that case?

The other thing that you need to keep in mind is that you don’t stand to benefit much from asking questions about what your ex-spouse is up to. If you find out that your ex-spouse is doing great then you will likely not feel great for him or her but will feel worse about yourself. On the other hand, if he or she is doing poorly, you will likely take some amount of satisfaction in that. This is probably not the way you want to appear to yourself or your children. So why not just let your ex-spouse live their life and you can do the same?

You are sharing possession of your children with your ex-spouse- remember that

Your children are your children, but they are also your ex-spouse’s kids. Meaning: do not act as if you are the only parent that matters. At all times, their other patent matters, as well. You should take advantage of every moment that is made available to you but do lose sight of the fact that your ex-spouse has just as much right to have their time with your kids, too. As such, do not abuse your possession schedule and run over on your time. Taking your child to your ex-spouse thirty minutes late continually is not only disrespectful of your ex-spouse, but it also puts you in violation of your court orders.

The earlier in the process that you can realize that your ex-spouse has just as big of a role to play in raising your children as you do, the better off you will be. This doesn’t mean that you have to drop the kids off early at the other parent’s. This does not mean that you need to run every planned activity with your children through another parent to make sure he or she knows what is going on. What it does mean is that you are best off being respectful of the other parent. This takes little effort but does require that you be aware of other people and their needs. Even the needs of a person that you just finished getting a divorce from.

Remember that your divorce is in the past- treat it that way

Your divorce is in the past and should not be re-litigated. You may need to come back to the courthouse in the future to deal with issues that arise in the future, but what led to the divorce, the divorce itself and the immediate period after the conclusion of your divorce needs to be set aside and not brought up time and time again. Tomorrow’s blog post will begin by focusing on this topic.

Questions about divorce in Texas? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we shared in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to speak with an experienced attorney who can provide you specific feedback about your case as well as answers to your questions.

We work in the family courts of southeast Texas every day and do so with a great deal of pride. Our work is done on behalf of our clients who in reality are the people we consider neighbors and members of our community as well. Thank you for your time and consideration.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas House Bill 1449 – violated by the psychologists that helped enact the law

Status: Passed on June 20 2015 – Effective on 9/1/15
legiscan.com/TX/bill/HB1449/2015

capitol.texas.gov/tlodocs/84R/billtext/html/HB01449I.HTM

HB 1449 would make several changes to Family Code

The bill would require specific details to be included in a court order for a child custody evaluation, such as the name of each person who would conduct the evaluation, the purpose of the evaluation, and the specific issues or questions to be addressed in the evaluation.

Under the bill, child custody evaluators would be required to disclose potential bias or conflicts of interest in an increased number of scenarios. For example, disclosure would be required for any information where a reasonably prudent person would believe impartiality would be affected in conducting an evaluation.  The court would not be able to appoint a person who disclosed such information, and an evaluator would need to step down if such information was later discovered.

Child custody evaluators would be expected to include more information in their evaluation reports, including an assessment of how the reliability or validity of their report may have been affected by the extent of information received.

The bill also would increase protocols for the evaluators’ handling, keeping, and releasing of records and information obtained in the execution of a child custody evaluation

This bill also states that a child custody evaluator shall provide to the attorneys of the parties to a suit, any party who does not have an attorney, and any other person appointed by the court under this chapter in a suit a copy of the child custody evaluation report before the earlier of: (1) the third day after the date the child custody evaluation report is completed; or (2) the 30th  day before the date of commencement of the trial [changed from the 5th day].

HB01501 docs

WITNESSES: For — Charla Bradshaw and Steve Bresnen, Texas Family Law Foundation; Benjamin Albritton; Christy Bradshaw Schmidt; Aaron Robb; Alissa Sherry; 

WITNESSES: Against — Paul Andrews, Texas Psychological Association; Tim Branaman;

 

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and their families.

Like Texas, many other states lay out a specific percentage of a non-custodial parent’s income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the support of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don’t bat an eye when the issue of paying guideline support is raised.

Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce the man’s ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state and our potential client was ordered to pay child support that is above and beyond the “guideline” levels of support for that state.

Our potential client was thus left with a child support order that obligated him to pay an amount of child support that was above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject that is related to a child, he or she must do so based on what is in the best interests of that child. This is a standard that most every state utilizes when applying the law towards the specific circumstances of a child and their family.

Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order for this man obligates him to pay an above guidelines level of support.

Where does the Law Office of Bryan Fagan come into play?

Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider as far as reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out of state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?

Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out of state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.

When does a Texas court gain the jurisdiction to modify an out of state child support order?

There are a couple of ways that a child support order that comes from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (parent who pays child support) and the oblige (parent who receives child support payments) and the child all reside in Texas then our state has attained jurisdiction over the case and may modify and/or enforce the out of state order.

Likewise, when only one party (parent) live in Texas, then a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas and the responding party (the mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.

What have Texas courts stated about subject matter like this?

So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out of state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since the issuing of that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, if you cannot successfully argue to a Texas court that jurisdiction is proper in Texas you will not be able to make an argument about any of the facts and circumstances that justify a modification.

A fairly recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains within it a good discussion of the relevant law regarding how and when an out of state court can lose jurisdiction over a case and its parties.

This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways in which a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to all move out of the state that issued the order (as we discussed previously). Another and less likely scenario would be that all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state’s order.

As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeeTEX. FAM.CODE ANN. § 159.611. A modification is permitted by the non-rendering state under the circumstances outlined in section 159.611 because under such circumstances the rendering state no longer has a sufficient interest in the modification of its order.

If you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle you won’t even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.

Can a Texas court grant a reduction in the child support obligation of a parent under an out of state order?

Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.

A modification of a child support order is warranted when the petitioning party (the person asking for the modification) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995), notes, there is an inherent fact-finding nature of child support issues and the cases that are made up of those issues.

The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are extremely fact-specific. If you would like to modify a child support order then you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and in your oral arguments inside of a modification hearing need to display the requisite level of material and substantial change needed to grant the modification.

Cost in living expenses has been a factor alleged by prior parties seeking child support modifications

Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent who is raising the children on a day to day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, is no longer in need of a child support payment that is above the guidelines of his home state.

Costs associated with special education for your child, school tuition and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the expenses of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to do some digging to produce this kind of evidence, especially if the child support order is from a decade ago.

In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:

To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15. 

In that case, the parent who was attempting to modify the prior court order was the mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined was insufficient to justify an increase in child support. Here is what the appellate court determined:

Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father’s monthly child support obligation.

What does the Texas Family Code have to say about a decrease in the needs of a child about child support?

The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation. Texas Family Code section 156.405. I would also argue that the opposite could also be potentially held by a Texas court. Specifically that an argument that a decrease in the needs, the standard of living or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.

A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H, Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation of her ex-husband. What the court found, in this case, was that all of the evidence submitted by the mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the circumstances of her children.

The court argued that simply showing a change in lifestyle and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse’s mortgage payment has decreased or that their utility bills are lower and that justifies a decrease in the child support obligation, then this case should give you pause.

How are the needs of your child taken into account by a court?

Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that there would be needs of your child that would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.

The bottom line: if you wish to modify a child support order come with plenty of evidence

Whether yours is an out of state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.

Please consider contacting the Law Office of Bryan Fagan if you have questions about today’s material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure free environment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

Texas Divorce Court May Base Property Valuation on the Evidence Before It

Originally published by Kelly McClure.

By

Texas family law requires a just and right division of community property by a divorce court.   The court must, however, have the relevant information before it to identify and appraise the assets.  A party who refuses to disclose assets or information about their value generally may not complain about the court’s valuation of those assets.  A former husband recently challenged the court’s division of property.

Prior to the marriage in 1994, the parties signed an “Agreement in Contemplation of Marriage.”  The wife filed for divorce in 2005, and the husband counter-sued.  The divorce decree was issued in July 2009.

Issues related to the case had already been before the appeals court five times.  The appeals court had previously remanded certain issues related to the property division back to the trial court.  The husband appealed the “Judgment on New Trial for Property Division.”  He argued the trial court erred by not enforcing the prenuptial agreement regarding a bank account and a legal settlement.  He argued the agreement required property held in the name of either party to be presumed to be that party’s separate property.

 

The appeals court had previously held there was more than a scintilla of evidence that community funds had been commingled into the account and remanded the case so the trial court could consider the characterization of the account.

On remand, the trial court found there was substantial evidence community funds had been commingled into the account.  It also found the husband “offered no documentary evidence, and no clear and convincing evidence tracing separate funds into the [account]…”  The court found the account was a community asset and awarded 50% of the funds to the wife.

The appeals court acknowledged the prenuptial agreement contained a presumption that property held in one party’s name was that party’s separate property, but found the presumption had been rebutted with evidence of commingling.  The husband therefore had the burden to trace the deposits to separate funds by clear and convincing evidence, but the trial court found he did not meet it.  The appeals court found the trial court did not err in concluding the account was community property.

The husband also argued the trial court erred in characterizing a legal settlement as community property.  According to the record, the husband filed the suit in his own name after the divorce petition was filed but before the divorce was finalized.

The husband did not disclose the asset during the divorce.  The decree stated that undisclosed assets were awarded to the party who did not have control or possession of them.  The trial court therefore did not err in finding the asset was not the husband’s separate property.

The husband also argued the trial court erred in failing to value the community estate at the time of the divorce.  The general rule is that property should be valued as of the date of the divorce.  The trial court generally had the discretion to determine if an appraisal is close enough to the date of the divorce to be considered in determining the value.

The husband argued the court should have based the division of the account on its value on the date of the divorce, not the date of the filing.  There was evidence, however, that the husband refused to provide information about the account during discovery.  The wife testified he refused to provide her with bank documents, but instead only offered her a release so she could obtain the information herself.  She testified that she only had one statement showing information from the account.  The appeals court noted that the husband was challenging the valuation and property division and therefore he had the burden to show the division was unjust.  He did not provide values of the property, and could therefore not complain that the court used the information it had.  The trial court valued the property using the only bank statement it had.  The appeals court found no abuse of discretion in an unjust or unfair way when it awarded the wife half of the property appraised based on the evidence before it.  The appeals court made a similar finding regarding other accounts where the only evidence of their value was the wife’s testimony.

The husband also challenged the valuation of a CD account that was awarded to the wife.  The wife testified the husband and his mother opened the account with funds from the first account.  She testified about its value as of November 2005 and how much was withdrawn when it was closed in August 2007.  The husband did not offer any information regarding valuation of this asset at the time of the time of the divorce.  On remand, the trial court valued the CD account based on the testimony of its value in 2005.  The appeals court found the trial court abused its discretion by failing to use the evidence closer to the divorce.

The husband also argued the trial court improperly awarded the wife 100% of assets it found were undisclosed.  The trial court had ordered in the decree that undisclosed assets were awarded to the party who did not have possession or control of them.  The husband had not challenged that part of the order in the previous appeals.

The accounts in question were first disclosed in the trial on remand.  The accounts had been opened during the marriage by the husband and his mother, who had passed away.  They were therefore in the husband’s control, and he failed to disclose them during the original proceedings. The trial court awarded the accounts in accordance with the decree.  The appeals court therefore found no abuse of discretion in that action.

The appeals court affirmed the judgment in part and reversed in part.

If you are anticipating a divorce with complex assets, the experienced Texas divorce attorneys at McClure Law Group can advise you and help you through the process.  Call us at 214.692.8200 to set up an appointment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What goes into an award of spousal support here in Texas?

What goes into an award of spousal support here in Texas?

Originally published by On behalf of Laura Dale.

Very few people come out of a divorce without some financial impact. Any time the same income must stretch over two households instead of one, both parties will experience some adjustments to their finances.

What the courts want to make sure of is that one of you doesn’t experience a significant drop in income while the other party receives an unfair financial advantage. Under these circumstances, spousal support may be appropriate.

How do the courts come up with the amount needed?

Of course, the first hurdle for anyone requesting spousal support is to prove a need exists. After you show that you do not earn enough to support yourself without help, the court will then assess how much you need in order to make up for the difference between what you bring in and what you need for support. Below are generalities regarding what the law says about amount and how long you will receive spousal support:

  • You could receive either up to 20% of your former spouse’s gross income or $5,000, whichever is less.
  • If you or one of your children who resides primarily with you has a disability, you could receive spousal support indefinitely since your need may not end.
  • If you were married for at least 30 years, you could receive alimony for up to 10 years.
  • If you were married between 20 and 30 years, your alimony will more than likely end after a maximum of seven years.
  • If your marriage lasted between 10 and 20 years, you may receive spousal support for up to five years.
  • If your spouse was abusive and you were married less than 10 years, you could receive alimony for no more than five years.

Within the confines of these limits, you and your future former spouse may not agree on duration and amount. If that happens, you will need to present evidence to the court to support your position, whether you are the one needing spousal support or the one who may end up paying it.

You don’t have to go it alone

Nothing less than your financial future is at stake regardless of which side of the issue you are on, so it would be wise to enlist some experienced legal assistance for help. An attorney knowledgeable in Texas law will provide you with an understanding of your rights and an explanation of what you face, along with your legal options.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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