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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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What should parents do about exchanging their children under a Texas standard possession order when school is not in session due to COVID-19?

What should parents do about exchanging their children under a Texas standard possession order when school is not in session due to COVID-19?

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

This is a question that the family law attorneys with the Law Office of Bryan Fagan have been receiving with great frequency since the middle of March. Most family court orders in Texas determine possession and visitation based on the school year calendar for the school district or school that your child attends. Without that reference point many parents were left scratching their heads as to how to proceed. With there being some question as to what will happen with school starting up (or not) in the Fall, we figured it was a good idea to continue to provide answers to these questions as we head into the summer months.

If you have been keeping your child on a set schedule with at home learning then you and your family will be ahead of the game at least when it comes to maintaining a structured environment. Many children, however, are left to fend for themselves due to a range of circumstances. Talking to your children about these abnormal times can help them to process these changes instead of just reacting to them without any context about how or why they are occurring in the first place.

Since your child lives apart from both parents you can utilize this time as a great opportunity to begin to focus on co-parenting and working together to coordinate your messages to your children, child care during the summer and what you all will plan to do during the fall if school does not start up on time at the end of summer. As unpleasant as it can be to work directly with your ex-spouse on situations like this I can tell you from experiences working with many parents in our community that it is best for your children.

What are family law attorneys advising their clients during this time?

It is beneficial to have an attorney in your corner who not only knows the law but can guide you as far as what to do in the event that a problem comes up associated with possession or visitation. If you have an ex-spouse who is not honoring your court orders or has decided to not be flexible with you during this difficult time then you may need to hire an attorney to help you sort of your options.

Without knowing your particular situation, it is tough to give specific advice. If you do want to talk with experienced family law attorneys then you should contact our office today. We can schedule you for a no strings attached, free of charge consultation via phone or video. It’s in these conversations where your specific questions can be answered. Otherwise, we will do our best in today’s blog post to provide general advice that you can apply to your life.

I think one piece of advice that is not legal in nature is that you and your family should focus on one thing above all else right now: your health. This means that you should be aware of what the government is advising you to do as far as staying healthy. However, that does not mean that you should not work with your doctor and the pediatrician for your children as well. Common sense (which isn’t so common anymore) cannot be ignored during this time, either.

Showing your child how to act in a tough circumstance can be a lesson that sticks with your child for the rest of your life. More in caught than taught with children, in my opinion. I know that with my kids they will often “forget” something that I tell them, but they will remember vividly the things I do. The habits that you display for your children as far as your health and how to take care of yourself are incredibly important for your children during this time.

Simple things that we take for granted are habits that need to be ingrained into your child starting now. This means handwashing before and after meals and making sure that the surfaces in your home are regularly cleaned seem like little things in the grand scheme of things. However, I think we can all attest to the fact that little things can make a big difference in the lives of our families right now.

Social distancing a concept that we are all undoubtedly familiar with at this stage of the game. The idea of distancing yourself from people who may or may not be ill makes sense and in theory should have been something that we did even before COVID-19 or the coronavirus became parts of our vocabulary. We should all be making sure that our kids understand why we are behaving like we are and that they begin to keep in mind how to protect themselves from sickness.

Finally, staying healthy means keeping up with the news at events warrant it. I am not saying that keeping the cable news networks on your phone or television all day long is a smart thing to do. In fact, doing that may actually do more harm than good. However, you should find a reputable news source and refer back to it when updates occur in our area. For example, as the governor begins to roll out various openings for businesses you should know when and if those changes impact you and your family.

Help your child to keep things in perspective

Your child may be one, seven or seventeen years old. Depending on the age of your child you need to be able to help him or her be aware of the changes that are ongoing as we begin to live our lives in the age of COVID-19. Eventually there will be a vaccine for this virus. Eventually we will be able to live our lives more normally than we have the past seven weeks. However, we are not there quite yet. As a result, we need to help guide our kids through this time.

That does not mean that our kids need to live in constant fear of becoming ill, getting others sick or seeing family members get sick. Someone they know may get sick, but you should help your child to understand that we all have a responsibility to keep ourselves healthy. That is how we can show responsibility to others, as well. Striking a balance between staying healthy, distancing ourselves in public when need be and educating our children on steps they can take in the meantime to keep a proper perspective on this virus.

Look to your court orders when deciding how to proceed with possession and visitation

Unless you and your child’s other parent are able to come to a mutual understanding and agreement on alternative set ups for visitation and possession, you will need to abide by your court orders. Dig out a copy and make sure that you understand what is expected of you. Those orders are not optional and do not stop working in case of pandemic. They are still the rules and you need to follow them until told otherwise by the judge from your court.

The tough part about that is your schedule and ability to care for your children during this time may have changed a great deal. For instance, if you are ill, live with a person who is ill or are a member of the “at risk” population, then you may want to allow your child’s other parent to care for your child at least for the next few weeks. Again, getting the coronavirus does not mean that you will get ill. It does not mean that worse will happen to you. However, if we are aware of the virus being passed from person to person there is no use risking your health or that of your child’s.

It would make a ton of sense for you and your child’s other parent to work out between yourselves how you would handle a situation where one of you get sick. Hopefully that never happens but you want to be prepared. Until that would occur I think it would generally be best for little to change in regard to your court orders. For one, changing court orders between yourselves will become difficult to enforce. Secondly, it will be good for your child to live their life as consistently as possible in these days where there is no school.

If you and your child’s other parent can come to an agreement on an alternative scenario for possession or visitation this week, your circumstances may change next week and one of you would simply need to change their mind for the agreed to scenario to go up in smoke. This will cause anger, frustration and a disruption to your child’s schedule. It also promotes (in my opinion) a constant degree of negotiating and back and forth between you all when it comes to modifying the orders on the fly.

The whole point of going to court, hiring attorneys and submitting them to a judge for approval was to avoid being in a situation where those orders stop working right away or are able to be changed without a great deal of thought. Coming up with new orders on the fly with your ex-spouse may work for a short period of time but in the long run may cause more problems than it solves. Talk to your ex-spouse as soon as you can about how you want to handle future periods of possession/visitation that are disrupted by this virus.

Do not try to hide your being ill if you do get sick

At this point, I’m going to guess that a lot of us know a person who has gotten sick with COVID-19. Whether or not the person got gravely ill or was just under the weather, the sickness has spread to the point of most of us having come into contact with it previously. You may have even considered what you would do if you do get sick and have a visitation time period coming up with your child. You wouldn’t want to get him sick but you also do not want to miss out on a period of visitation.

What you should do is be completely honest with your child’s other parent about your situation. If you think that you have the virus or are just sick generally speaking, then it is not wise to be with your child right now if you can avoid it. This is when working directly with your ex-spouse on coming up with visitation arrangements is a good thing to do. Our lives have all changed as a result of this virus- at least temporarily. It would make sense that visitation and possession would change as well.

You should make sure that your ex-spouse has a plan (and that you do, too) if the other one gets sick. Alternative child-care, transportation logistics, extended family who can help, etc. all need to be worked out before either one of you falls ill. This is no longer a situation where you can just say that you got sick out of the blue. We are all aware of what can happen as a result of this virus. Now it is up to us as parents to help keep our children safe.

Questions about possession and visitation in the age of COVID-19? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan appreciate the time that you spent with us on our blog today. We post unique content here every day so we encourage you to return tomorrow, as well. In the meantime, if you have any questions about the material that we have discussed in this blog post please do not hesitate to contact our office. We can schedule a free of charge consultation for you with one of our licensed family law attorneys. These consultations can occur over the phone or via video to better suit your needs as we hopefully transition back into a more normal, and virus-free, routine.

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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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.

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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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Central Texas Family Court Corruption

Central Texas Family Court Corruption

Topic: Host Mike Lee and guests discuss the unfair and oftentimes damaging outcomes handed down in family court cases that involve minor children.

If you have issues that you feel are unjustified or corrupt please email txfamilycourtcorruption@gmail.com

TSBEP / TBHEC Complaint Process – Texas Psychologists / Custody Evaluators

www.youtube.com/playlist?list=PL2ghWdA_RadcHJWooUyzDH-vrCPbBUzUY

TSBEP / TBHEC Complaint Process – Texas Psychologists / Custody Evaluators
TSBEP Complaint Process Issues – TBHEC Texas Family Courts – Gloria Canseco, Darrel Spinks, Texas Board of Psychology, Texas Behavioral Health Executive Committee
TSBEP, Custody Evaluation, Forensic Psychology, Texas Family Courts, TBHEC, Gloria Canseco, Darrel Spinks, #TSBEP, #CustodyEvaluation, #ForensicPsychology, #TexasFamilyCourts, #TBHEC
Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

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

Originally published by Francesca Blackard.

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A court generally may not amend or change the property division made in a Texas divorce decree.  The court may issue an order to enforce the property division, but such an order may only clarify the prior order or assist in its implementation.  If a court improperly amends or modifies the substantive property division in the final divorce decree, it is acting beyond its power and that order is unenforceable. Tex. Fam. Code Ann. § 9.007.  Qualified Domestic Relations Orders (QDRO) are separate orders that set forth the distribution of retirement plan assets.  They are considered a type of enforcement or clarification order and cannot change the property division made in the divorce decree.

In a recent case, an ex-wife sought an additional QDRO years after the divorce was finalized.  The couple divorced in 1995, and the parties have been in litigation for the past several years regarding the husband’s retirement accounts.

The divorce decree awarded the ex-wife 50% “of any and all sums … related to any … retirement plan, pension plan, … or other benefit program existing by reason of [ex-husband’s] past, present, or future employment, including without limitation, [ex-husband’s] Retirement Fund, Provident Fund, and SPIF Fund with Shell Oil Company per Qualified Domestic Relations Orders …”  The trial court signed a QDRO awarding the ex-wife half the funds in the ex-husband’s Shell Provident Fund on the date of the divorce.  The court found the total community property interest in the Shell Provident Fund was the total amount of contributions, interest, and earnings made or accrued by or on behalf of the ex-husband into any of the Shell Provident Fund accounts.  The QDRO stated the ex-wife was “divested of all right, title, and interest in and to any balance remaining in any account of the Shell Provident Fund…” and that the fund would be discharged from all obligations to her when full payment was made pursuant to the QDRO.  It also said it would become an integral part of the divorce decree.

 

The ex-wife received the funds from the QDRO.  In 2015, the ex-wife petitioned for another QDRO and the court signed it, with a valuation date of July 15, 2015.  The husband said he was not given notice of the hearing and that neither the petition nor the QDRO were on file with the court before the hearing.

The ex-wife did not receive the funds from the 2015 QDRO.  She filed an amended QDRO in April 2016 with a 2015 valuation date, but the trial court did not sign it.  She filed a petition to enter an amended QDRO the following month, with the 2015 valuation date and amount.

In April 2017, the husband filed a petition for bill of review of the divorce decree.  He asked the court to clarify that the retirement benefits were to be divided as they existed on the date of the divorce.  He argued the court did not have jurisdiction to sign the 2015 QDRO because it conflicted with the divorce decree and the 1995 QDRO. The ex-wife then filed another amended petition to enter a QDRO.  After a hearing, the trial court granted the bill of review, modified the decree, and set aside the 2015 QDRO.

The ex-wife filed a response, arguing the bill of review had been untimely.  The court then signed a “Court’s Rendition,” in which it denied the bill of review, set aside the reformed decree and QDRO, and reinstated the original decree.

The ex-wife then filed another proposed QDRO, but the trial court did not enter it due to a missing signature.  She filed a “Motion to Sign QDRO.” The docket entry indicated that the motion was not properly served, and the hearing was rescheduled.  The husband’s attorney argued the 1995 QDRO divested the ex-wife of all interest in the fund.  The trial court denied the motion, finding the 1995 QDRO awarded the wife half the funds as of the date of divorce and that she was not entitled to anything else from the fund.

The trial court denied the wife’s motion for a new trial. She appealed, arguing the divorce decree had awarded her half of the fund through the ex-husband’s last date of employment.  The ex-husband argued that the proposed QDRO was an impermissible collateral attack on the 1995 QDRO.

The appeals court noted that a QDRO is a final, appealable order.  A party who does not appeal a QDRO may not collaterally attack it through a separate proceeding.  The appeals court found that the ex-wife’s motion to enter a new proposed QDRO filed so many years after the divorce was such a collateral attack.

The court also noted that the 1995 QDRO awarded the ex-wife half of the fund as it was valued on the date of the divorce and divested her of any further interest.  The QDRO she sought to have entered would have awarded her a share of all amounts contributed on behalf of the ex-husband “in the past, present, and future.” The ex-wife received the funds she was awarded in the 1995 QDRO in 1995.  Her proposed QDRO sought to avoid the effect of the decree and the 1995 QDRO, making it a collateral attack.

The appeals court also rejected the ex-wife’s argument that she was entitled to QDROs awarding her half of the ex-husband’s other benefits and employer-based savings plans through his past, present and future employment.  The court found she was also barred from collaterally attacking the division as to these benefits as well.

The appeals court affirmed the trial court’s denial of the motion to sign the QDRO.

Although this case is procedurally complex, it illustrates the importance of addressing issues promptly through the appropriate procedures.  If you think your marriage may be ending, a skilled Texas divorce attorney can help you through the difficult process.  Schedule an appointment with McClure Law Group by calling 214.692.8200.

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



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