San Antonio Divorce Lawyer Blog

Texas Child Support Guidelines

Texas family law attorneys are keenly aware of the child support percentage guidelines set out in the Texas Family Code, which prescribe a mathematical formula for calculating child support.  These percentage guidelines come up in virtually 100% of all family law cases involving issues of child support.

The statutory guidelines set out in §154.123 of the Texas Family Code are legally presumed to be in the best interest of the child.

In Bexar County especially, attorneys are often resigned to the premise that "child support is what it is," and that not much can be done about it. 

However, the truth of the matter is that the Texas Family Code contains a number of provisions allowing a judge to set child support above or below the statutory guideline amounts.  §154.123 of the Texas Family Code, which is entitled "Additional Factors for Court to Consider," sets out 17 separate things the Court must consider in determining whether application of the guidelines would be unjust or inappropriate under the circumstances.

Emancipation of a Minor (Removal of Disabilities)

In the field of family law, there are a number of issues which do not get a lot of attention, but which are nonetheless very important to the people whose lives they affect.  As a family-law attorney in San Antonio, Bexar County, Texas, I am occasionally asked to help "emancipate" a minor.  The technical term for that process is "Removal of Disabilities."

Emancipating a minor (removal of disabilities) is not the easiest thing in the world.  In a nutshell, here's how Chapter 31 of the Texas Family Code breaks it down:

(1)   A minor may be emancipated (have his or her disabilities removed) if: 

      (A)   He/She is 16 and living separate and apart from the minor's parents, and the minor is self-supporting and managing his/her own financial affairs; OR

     (B)    He/She is 17 and self-supporting and managing his or her own financial affairs.

I've always found this to be a somewhat curious section.  Whether the child is 16 or 17, he/she must be self-supporting and managing her own financial affairs to qualify.  However, if the child is 16, he/she MUST be living separate and apart from his/her parents.  A 17 year-old, on the other hand, can still be living with his/her parents and qualify, as long as he/she is self-supporting and managing his/her own financial affairs.  Presumably, then, a 17 year old can be emancipated while still living at home, which would then enable the newly-emancipated 17 year-old to go out and get an apartment.  The 16 year-old, however, must already be living separate and apart from his/her parents.

Here are some other requirements:

(1)  One of the minor's parents must sign the petition and swear to its truth.  If there is an existing child custody order, then the parent who was designated as the managing conservator, then that person must be the one who signs it.  I think there's a gray area here if both parents have been appointed Joint Managing Conservators.  Even if one of them is the primary custodian of the child, I think either parent could sign the petition, given the very ambiguous term "managing conservator."  After all, both parents are "managing conservators" in the case of a joint managing conservatorship. 

(2)  If the person who is required to sign and verify the petition is unavailable, then the amicus attorney or attorney ad litem shall verify the petition. 

This brings us to the requirement of an Amicus Attorney or Attorney Ad Litem, a special attorney appointed by the Court who to make sure the best interests of the minor are being served.  Such an attorney MUST be appointed by the Court in all cases under Chapter 31 (Removal of Disabilities).  In reality, the purpose of the Amicus Attorney/Attorney Ad Litem is to ensure the the minor is in fact self-supporting and managing his or her own financial affairs, and, in the case of 16 year olds, to make sure the minor is living separate and apart from his/her parents.  That attorney will have to testify to the Court to those facts, and represent to the Court that the removal of disabilities will be in the best interest of the child.

Texas Divorce Agreements

Most of you know by now that I am an attorney in San Antonio, Texas who handles family law cases such as divorce, annulment, child custody, child support, adoption, enforcement and modification matters.  In the context of divorce, the subject of agreements incident to divorce, including their validity and enforceability often comes up.

This blog will focus on "agreements incident to divorce," which are different from, although in some ways similar to, pre-marital or post-marital agreements. Pre-marital and post-marital agreements are usually entered into to before or after the marriage create separate property interests in each spouse.  That is, those types of agreements are intended to divide property at the time of the agreement, so that when a divorce occurs, the property has already been legally transformed into each party's separate property according to the terms of the agreement.  Of course, the pre-marital or post-marital agreement may also contain provisions for other property transfers in the event of divorce, which makes it similar to an agreement incident to a divorce. 

However, a pre-marital agreement or post-marital agreement, if drafted properly and according to the rules in the Texas Family Code, should be completely enforceable at the time of divorce. That is the important difference between pre-marital/post-marital agreements and agreements incident to divorce.  An agreement incident to divorce may be repudiated at any time before rendition of the divorce. 

So:  there are some important definitions to know in these cases.  First, an "agreement incident to divorce" is any agreement the parties enter into regarding the division of property, child custody, child support, and any other matter which could be an issue in a divorce proceeding.  If that agreement meets the requirements of a premarital or postmarital agreement, as we talked about earlier, then the enforceability of the agreement is determined by the chapter of the Family Code dealing with those types of agreements.  However, if the agreement is not intended to be a premarital or postmarital agreement, but merely an agreement as to the terms of the divorce, it is a bare "agreement incident to divorce" which either party may revoke any time before rendition of the divorce.  "Rendition" means the time a judge pronounces the parties legally divorced in open court.

Actually, the Texas Family Code says that agreements incident to divorce may be revoked at any time before rendition of the divorce unless "enforceable under another rule of law."  This has generally been held by the appellate courts to mean that the agreement must either be enforceable as a contract, or as a premarital or postmarital agreement.  We already discussed premarital and postmarital agreements--they require all sorts of disclosures and/or waivers, notarized signatures, etc.  Discussing enforceability of a contract is beyond the scope of this post, but suffice it to say that it is very difficult to enforce as a contract any agreement entered into before the divorce becomes final.  For one, a contract must be enforceable at the time it is signed.  Agreements incident to divorce are usually not intended to be effective until after the divorce, so they are not usually enforceable as contracts before the divorce. 

Interstate Child Support Modifcation

As a family law attorney in San Antonio, Texas, I've been seeing a lot of issues coming up lately regarding the modification of child support when the parents live in different states.  It is amazing to me how confusing this area of the law is to judges and clients, and worse yet, to lawyers.

This post is a short primer on how child support modification works when one parent lives in a state other than the state in which the the child and/or the other parent live(s).  There are several different scenarios, but let's start with the most common, and work our way up:

Scenario "A":   Two people who live in Texas have a child together (it doesn't matter if they're married or not), and a child custody and support order is later issued in Texas (whether it's a divorce, paternity action, or otherwise just doesn't matter). Mom gets primary custody and Dad has to pay child support.  Later, the father moves to another state when he gets a higher paying job, and mom wants to increase the child support due to dad making more money.   Mom and child stay in Texas.

Scenario "B":  Same scenario as above, except the two people live and have their child in another state.  Later on, Dad moves to Texas for a better paying job.  Mom and child stay in the original state. 

"Scenario "C":  Same scenario as above--support order issued in another state, mom and child then move to Texas and Dad moves to some other state, so that no one lives in the original state any longer (Mom and child are in Texas, Dad is somewhere else other than the original state).

There are obviously some variations to these scenarios, but these are the 3 basic scenarios that will determine what laws apply, and how they are applied. Obviously, the same rules would apply regardless of which parent had primary custody of the child.

The body of law that controls interstate child support matters (as opposed to child custody and visitation matters is called the Uniform Interstate Family Support Act (UIFSA).  A version of that law has been passed in every state, and it is for the most part the same in every state.  Interstate child custody and visitation disputes are governed by another interstate law called the Uniform Child Custody Jurisdiction and Enforcement Act,  (UCCJEA) which I have discussed in other blog posts. 

Quite simply, the UCCJEA governs child custody cases when interstate elements are present.  UIFSA governs child support  cases where interstate elements are present.  This is the first source of confusion to clients, lawyers and judges.  I've seen lawyers--even ones who are board-certified in family law-- file child support modification pleadings based on the jurisdictional requirements of the UCCJEA instead of UIFSA, and I've even seen judges agree with them at first, until they were educated on the law!    

When is a Marriage Not a Marriage?

As a San Antonio, Texas divorce lawyer, I find that many clients don't realize that annulment and divorce are NOT the only ways to end a marriage.  There are a number of situations which can result in a "Void Marriage" in Texas, meaning that for one reason or another, the marriage was invalid. 

Whenever discussing the subject of void marriage, I also have to explain the difference between a "void marriage" and a "voidable" marriage.  The general idea is that a void marriage is invalid and can NEVER become valid under any circumstances. For instance, a marriage between two close relatives, such as brother and sister, mother and father, etc., is a void marriage.  Such a marriage is void for all purposes and can never become a valid marriage.

By contrast, a marriage entered into when one of  the parties to the marriage is already married to someone else (bigany) is void only until the a divorce or annulment is obtained from the first spouse.  For instance, let's say a man starts divorce proceedings against his wife, believes the divorce is final, and then remarries someone else.  Later, he discovers that the first divorce was never finalized.  This makes his second marriage is voidable (void for the time being), but it will become a valid marriage if he goes back and finalizes the original divorce.  The second marriage will become a valid marriage as of the date that the first marriage is dissolved.   In other words, either spouse can go to court and have the second marriage declared void as long as he or she does so before the first marriage is dissolved.  There is one important exception to this rule:  if the man and 2nd wife in our example are not living together and not holding themselves out as being married at the time the first divorce becomes final, then the second marriage does NOT become a valid marriage.  This can get tricky legally, and may still result in litigation just to get a court order that says the second marriage is void.

Annulment is another example of a "voidable" marriage.  There are number of situations which are grounds for having an annulment, but the marriage remains valid until someone files for an annulment.  In many cases, the circumstances which constitute grounds for an annulment may go away, at which point an annulment is no longer possible. For example, the most common grounds for annulment is "fraud in the inducement of the marriage."  If one party uses fraud to induce someone into a marriage, then the defrauded spouse can get the marriage annuled if he or she does not voluntarily live with the fraudulent spouse as soon as the fraud is discovered.  However, if the spouses continue to live with one another after the fraud is discovered, annulment is no longer possible, and the marriage may only be dissolved by divorce.

A related topic of void and voidable marriages is the issue of a "putative marriage."  Going back to my bigamy example, the second-marriage spouse typically is unaware of his or her spouse's previous marriage (which is not yet dissolved).  The second-marriage spouse, therefore, thinks he or she is validly married and behaves as such.  He or she is then called a "putative spouse." This creates a whole new set of problems, which I will discuss in another post.

Texas Child Custody Jurisdiction Issues

As a child custody attorney in San Antonio, Texas, I have many clients who either live out of state, or who are involved in child custody litigation with parties who live out of state. Whenever a party to child custody litigation resides in another state or country, "jurisdictional" issues often arise, and are often the source of great controversy and contention.

The term "jurisdiction" refers to the power of a court to hear a case and to issue orders to the parties involved.  The power of the court to listen a particular type of case, such as a child custody case, is called "subject mater jurisdiction."  The power of a court to order a particular person to do something is called "personal jurisdiction."  You can read about personal jurisdiction in a posting I wrote previously.  The subject of this suit is a certain type of subject matter jurisdiction involving parties and/or children who live in other states.

Child custody jurisdiction issues in Texas, and any other state for that matter, are governed by the body of law commonly referred to as the Uniform Child Custody Jurisdiction Enforcement Act. Virtually all states in the U.S. have adopted a version of the UCCJEA.  The original plan was for all states to adopt the same jurisdictional laws to eliminate conflicts between laws of different states.

Unfortunately, some states' version of the UCCJEA is different than that adopted by Texas.  Therefore, conflicts sometime arise between Texas law and the law of another state when both Texas and the other state try to claim jurisdiction over a case.

In a nutshell, subject matter jurisdiction in Texas child custody case is determined by the amount of time a child has spent in a particular state.  In an original custody proceeding, Texas can assume subject matter jurisdiction according to a hierarchal ladder of situations, the first and foremost of which is that the child must have lived in Texas for the last six months prior to filing the lawsuit (or since the child's birth, if the child is less than six months old).  When the child hasn't been in any state for the previous six months, other parts of the ladder apply.  Once Texas (or some other state), has determined that it has jurisdiction to hear a particular child custody case, then that state acquires "exclusive continuing jurisdiction" over the case, and no one can file a suit involving the custody or support of that child in another state unless the original court loses continuing exclusive jurisdiction over the case.

Child custody issues for grandparents and other non-parents in San Antonio, Bexar County, Texas

As a San Antonio, Bexar County, Texas child custody lawyer, I've been seeing a lot of child custody issues come up lately involving non-parents trying to get temporary or permanent custody of other people's children. 

Typically, a young mother and/or father, often with drug and alcohol abuse problems, leave their child(ren) with someone else.  Usually, the parent who does this is busy living a drug or alcohol abuse-induced lifestyle, with which raising a child generally interferes.  However, the 3rd party with whom the child was left (often a grandparent or other relative, but sometimes someone who has no blood relation to the child), sometimes finds it necessary to employ a child custody attorney when the biological parent shows up demanding the child.

In many cases, the parent never seeks to get the child back, but in a significant number of cases, one or both of biological parents wants to get their child back.  Sometimes, it is because the parent has truly straightened up his or her life.  In all too many cases, however, it is because the biological parent resents someone else raising the child.  As a child custody attorney in San Antonio, Texas (Bexar County), I am often consulted by biological parents trying to retrieve his or her child, and by 3rd parties who believe the child may come to harm if the biological parent regains possession of the child.

In the case of 3rd parties (non-parents) who are trying to keep possession of a child against the wishes of a biological parent, a number of issues generally arise.  Chief among those is the issue of "standing to sue."  This is a legal term of art which questions whether or not the non-party has a right to bring a legal action to gain temporary and/or permanent custody of a child.  Non-parents have the right to bring such a suit only under certain conditions. 

Usually, a non-parent in Texas may only file an original custody suit if the child has resided with the non-parent for more than six months.  However, a grandparent may file and maintain an original suit seeking custody of the child if the court is satisfied that the child's current living circumstances (with the biological parent) would significantly impair the child's physical health or emotional development, even if the child has not resided with the grandparents at all.  This statue is found in §102.004 of the Texas Family Code.  It is a very important statute, and one which I feel lets a number of children "fall through the cracks." 

For instance, consider the situation where the grandparents are either dead, unavailable, or unwilling to take possession of a child who has been left with another relative, and the biological parent demands the child back before the child has been with the other relative/non-parent for less than six months.  Texas law provides for no procedure for the non-parent to file an original suit seeking custody of the child, even if the biological parent is clearly a danger to the child.  In such circumstances, all the non-parent can do is call the police and the Department of Family and Protective Services (formerly Children's Protective Services, or CPS) if the biological parent shows up demanding possession of the child.  More often than not, the biological parent shows up with a police officer, so it is important for the non-parent to be able to tell the police that CPS has been notified, and to ask them to send a representative to the residence.

Unfortunately, CPS will usually decline to get involved unless the child is actually in the possession of the negligent or abusive parent, and will decline to take possession of the child unless they are certain the child is being neglected or abused.

Texas Annulments - things you should know

As a San Antonio Texas divorce lawyer, lots of folks ask me about annulments, as opposed to divorce.  Typically, the couple, hasn't been together very long, and they realized that the marriage was a mistake very quickly.  Many people have some very strange ideas about how and why you can have a marriage annulled, so I wrote this blog to get rid of a lot of misconceptions about the annulment process.

An annulment can be granted in Texas under some very specific statutory grounds.  For instance, if you find out after the marriage that your spouse has recently escaped from mental institution, you can have your marriage annulled.  If you got married under duress, or if you were under the influence of alcohol or drugs at the time, you can get your marriage annulled.  There are a number of other statutory grounds, including "impotence" (although I've never had anyone seek an annulment on that ground).

The most common ground for annulment is "fraud in the inducement."  Simply put, this means that if your spouse used fraud to induce you into the marriage, you can have the marriage annulled if you stop living with him or her as soon as you discover the fraud. 

Now what the term "fraud" includes is anyone's guess.  A typical situation:  spouse "A" who lives in another country induces spouse "B," who lives in Texas, to marry her/him, promising love, affection, undying devotion, etc.  As it turns out, all Spouse "A" wanted was to get into the country, and she/he quickly makes it clear that there will be no real marital relationship, and that the only thing spouse "A" really wants is a green card. That seems to me to be a clear case of fraud, and in fact I have had a number of clients come to me seeking annulments under that circumstance.

On the other hand, if the "fraud" in that instance was Spouse "A"'s false promise that he or she wanted to marry for legitimate reasons (love and affection, etc.), then that leaves open a number of interpretations.  For instance, can someone have the marriage annulled when he or she realizes that the other spouse only married him or her for his or her money? 

Texas Child Support - things you should know

As a San Antonio, Texas family law attorney, I see child support issues come up nearly all the time, whether in divorce cases, child custody cases, child support enforcement cases, child support modification cases, paternity cases, and even in adoption/termination cases.

Most folks know that Texas applies percentage guidelines to calculate child support.  In a nutshell, Texas figures out your NET income (after taxes, costs for health insurance, and a few other things), then multiplies that figure by a percentage which has been statutorily "presumed" to be in the best interest of the child.

What many people don't understand are the factors which a judge can consider in reducing or increasing the presumptive amount of child support.  The Texas Family Code lists a whole bunch of those factors.  Chief among those is the costs the non-custodial parent may be paying in order to exercise visitation.  For example, it isn't uncommon for a custodial parent to move out of state shortly after a divorce (unless there is a geographical restriction--but that's a different subject).  In doing so, the custodial parent is engaging in conduct which will increase the non-custodial parent's cost of exercising visitation, even if the parties split the costs. 

Since the Texas Family Code also provides that continuing and frequent contact between the non-custodial parent and the child is in the best interest of the child, the Court will often reduce child support to account for those increased costs.  The Court can also simply require the custodial parent to pay 100% of the travel costs, which I think is a much better idea.  That way, the  actual costs of visitation are born by the custodial parent, rather than the hypothetical costs.  For instance, reducing child support isn't really fair to the custodial parent if the non-custodial parent doesn't in fact exercise any of his or her visitation.

The previous examples assumed the custodial parent moved first, thereby being the cause of the increased cost of visitation.  What about if the parents are already living in different states at the time of the suit?  Or if the non-custodial parent moves to get a better job?  The Court can still reduce child support to account for the increased cost of visitation if the Court is convinced that it will help the non-custodial parent be able to visit his child. 

What about getting more child support than what's called for by the percentage guidelines?  That's also a possibility under the Texas Family Code.  Occasionally, a child is considered a "special needs" child, requiring an extraordinary amount of financial support (uninsured medical expenses, special education, etc.).  In such cases, the Court will look at the parents' respective ability to pay those costs, may increase the statutory amount of child support to account for the child's needs. 

Texas Child Support Guidelines

As a Texas family-law attorney, I find that child support and how it is calculated in Texas is often misunderstood by my clients.  Child-support issues are commonly and routinely dealt with by Texas divorce lawyers, and I thought I would try to take some of the mystery and guesswork out of the subject.

In Texas, the Texas Family Code contains "percentage guidelines" which are legally presumed to be in the best interest of the child.  Those guideline percentages are as follows:

1 child 2 children 3 children 4 children 5 children 6 or more children

20% of Obligor's Net Resources 25% of Obligor's Net Resources 30% of Obligor's Net Resources 35% of Obligor's Net Resources 40% of Obligor's Net Resources Not less than 40%

The big question, of course, is how to define "net monthly resources".  Well, here's how it usually goes:
We start with the child support obligor's gross income (by the way, "obligor" means the person who has to pay child support, while "obligee" means the person who receives child support).  From the gross income figure, we take out the taxes (FIT, FICA, and Medicare) that would be deducted if the obligor were a single person without any dependents.  Then we deduct whatever the obligor pays for health insurance for his or her child, union dues, and one or two other things that don't usually come into the picture.  That leaves us with the "net monthly resources" of the obligor, to which the percentage guidelines are then applied.

Pretty simple, right?  Wrong.  There are a number of other considerations, such as the following:

(1)  If the child support obligor has other children with someone else, that will effect the percentage guideline amount.  For instance, if the child support obligor has one child with one person, and another child with someone else, the obligor would ideally pay 17.5% of his or her net monthly resources for each child.  There's a whole separate chart in the family code for multiple-family situations.

(2)  The Texas Family Code has a long list of other factors the judge can consider in setting child support below or above guideline amount.  I'd say the most common reason judges set child support below guideline is when the parties live in different states, and the obligor spends a substantial amount of money exercising his or her visitation.  In such cases, Bexar County judges often rule that it is in the best interest of the child to visit the non-custodial parent as frequently as possible, and that setting child support below guidelines is the only way to ensure that happens. 

This is only one factor the Court may consider in setting child support below guideline support.  There are a number of other factors the Court can consider in setting child support above OR below guideline support.  A "special needs" child--one who has unusual medical problems or other special needs which require greater than usual financial contributions from both parents is the most common situation where child support is set above guideline support.

Bexar County District Clerk website

If you contact a divorce attorney in Bexar County, chances are he'll be able to tell you if your spouse has already filed for divorce, or if she's ever been divorced in Bexar County in the past.  Did you know you can check divorce cases, custody cases, and most other civil lawsuits online in Bexar County.  If you know the name of one of the parties, you can find out if they are currently a party to a divorce or other civil lawsuit, or if they have ever been a party to divorce or other lawsuit, by checking this site:  http://www.co.bexar.tx.us/dclerk/

As a divorce lawyer in Bexar County, Texas, I routinely check the District Clerk's website to determine whether or not my client's spouse has already filed for divorce.  Aside from the obvious strategic considerations of being a Respondent rather than a Petitioner in a divorce case, it can also save my client a lot of money in filing fees, costs for service of process, the cost of preparing and filing a detailed original petition, etc.

If you meet with a divorce lawyer in Bexar County, Texas, you should ask him or her to do such a check if you think there is any chance that your spouse may already have filed.  Of course, this will only determine whether a filing has occurred in Bexar County, Texas, and not any other counties or states.