San Antonio Divorce Lawyer Blog

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 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.

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!