Got to love this one!
This is a very common question and one that requires legal action. A motion for enforcement may be filed to enforce a divorce decree or a child support, child custody or visitation order. In an enforcement action the movant is the person who files the motion and the respondent is the person who has allegedly violated the court’s order.
A party effected by a divorce decree which required the division of property may file a suit to enforce the decree. The party against whom enforcement is sought has a right to receive notice of the suit and must file a written answer.
A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment because judges are unwilling to rewrite the terms of a decree or in the case of settlements, second guess the agreement of the parties. An order to enforce the division of property is limited to an order to assist in the implementation of or clarification of the prior order and may not alter or change the substantive division of property. If an order amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment, it is unenforceable.
If a party fails to deliver property pursuant to a decree of divorce or annulment and delivery of property awarded in the decree is no longer an adequate remedy, the court may render a money judgment for the damages against the party who failed to comply with the decree. If a party did not receive payments of money as awarded in the decree of divorce or annulment, the court may render judgment against the defaulting party in the amount of unpaid payments. In addition to a money judgment, all other relief available under the law may be sought against the defaulting party. Additionally, a money judgment rendered in connection with the failure to comply with the terms of a decree of divorce or annulment may be enforced in the same manner as any other judgment for debt.
Certain information must be contained in every motion for enforcement of child support, child custody, and visitation. For this reason, it is very important to keep accurate records. The motion must be signed by the movant or the movant’s attorney and must state:
- the provision of the order which has allegedly been violated;
- how the respondent has allegedly violated that provision; and
- the relief sought by the movant.
In the case of a motion to enforce child support, in addition to the above, the motion must also state:
- the amount owed as required by the order, the amount paid, if any, and the amount of arrearages; and
- if contempt is requested, the portion of the order allegedly violated and for each date of alleged contempt, the amount due and the amount paid, if any.
A motion for enforcement of child support may also include as an attachment a record of child support payments maintained by the local or state child support registry.
A respondent has certain affirmative defenses which he may plead in enforcement actions. An affirmative defense is a matter asserted by a defendant or respondent which, assuming the complaint is true, is a defense to it.
In actions for enforcement of custody or visitation, the respondent may plead as an affirmative defense that the movant voluntarily relinquished actual possession and control of the child and that the voluntary relinquishment occurred during a time encompassed by the court ordered periods during which the respondent is alleged to have interfered. In actions for enforcement of child support, the affirmative defenses available to a respondent include:
- the movant’s voluntary relinquishment to the respondent actual possession and control of the child and that the relinquishment occurred for a time period in excess of any court-ordered periods of possession of and access to the child and that the respondent actually supported the child during those periods;
- lack of the ability to provide support in the amount ordered;
- lack of property which could be sold, mortgaged, or otherwise pledged as collateral to obtain a loan to make the required support payments;
- unsuccessful attempts to borrow money in order to make the required support payments; and
- lack of knowledge of a source from which the money to make the required support payments could have been borrowed or legally obtained.
If a court finds that party has been denied possession of or access to a child, it may order additional periods of visitation to compensate for the denial of court ordered possession or access. The additional periods of possession or access must be of the same type and duration of the possession or access which was denied, may include weekend, holiday, and summer possession or access, and must occur on or before the second anniversary of the court’s finding that possession or access has been denied. Furthermore, the person denied possession or access has the exclusive right to decide the time of the additional visitation.
In the case of an action for the enforcement of child support, a respondent may request reimbursement for any support actually paid during the time subject to an affirmative defense. The request for reimbursement may be in the form of a counterclaim or offset against the claim of the movant.
A child support lien arises by operation of law against real and personal property of an obligor for all amounts of child support due and owing, including any accrued interest, regardless of whether the amounts due have been determined by a court. This means that the obligee may make collections efforts against the obligor by having the obligor’s real or personal property seized and liquidated in order to satisfy the child support lien. This process is very complicated and therefore, is best handled by an attorney.
Depending on the severity of the violation, it may not be advisable to seek enforcement. However, don’t just assume that you don’t have a case. Seek the advice of an experience attorney to learn what your rights you actually have.
But understand that the only means to enforce a decree is through the courts. The local police are not equiped to enforce the devorce decree and will not get involved unless there are illegal actions. And you cannot make up your own rules for enforcement or then you will also be breaking the law.
Any time parents with children divorce, there are specific parts of the divorce decree relating to the children These include conservatorship (the word we use instead of “custody”), child support, and periods of possession (commonly called “Visitation”). The Texas courts have the power to change the parts of a divorce relating to children until the children get out of high school (or earlier, if they are living on their own).
In some situations, the child-related provisions of a decree may be updated and changed. Except in rare cases, the property division contained in a divorce decree is may not be changed. If parents are divorced when children are very young, R is common for child-related provisions of a divorce decree to be changed several times before the children are out of high school.
Modification by Agreement
Frequently, parents who need changes to court orders will make informal modifications to the divorce decree. Although parents are free to make agreements which are in the best interest of a child, agreements for changes which are not included in court orders will not officially change the duties and rights of either parent.
For instance, parents might agree that child support ordered in their divorce decree should be lowered because the paying parent’s income has gone down. If the agreement is not recited in a court order, the paying parent could be required to pay the entire amount as originally ordered by the court if a dispute between the parents arose and could also be held in contempt of court and jailed. This is true even if the parties write down their agreement, unless it is approved by the court.
If the paying party had received a court-approved modification of the divorce decree setting out the reduced amount, he or she would not have been at risk for owing the higher amount unless the court order was changed again. The same risks apply to informal agreements concerning visitation, health insurance payments and any other court orders relating to children.
Most modifications are, however, settled without hearings or trials. The parents’ agreement is written into an Agreed Order Modifying Prior Order in Suit Affecting the Parent-Child Relationship. Each party and the attorneys sign the orders and present them to a judge for approval.
If the parents cannot agree, the facts are presented to a judge, associate judge, or, in some cases, a jury, who will decide whether an order should be modified.
In Texas, parents will be named as conservators of children unless there is a good reason why a parent should not be allowed to be a child’s conservator. There are some situations where others, like grandparents, may also be named as children’s conservators.
Generally, parents who divorce will either be named as Joint Managing Conservators, or one parent will be named as Sole Managing Conservator and the other will be named as Possessory Conservator. The Texas Family Code sets out the following as the rights, privileges, duties and powers of Conservators, as amended effective September 1, 1993:
- A parent appointed as a conservator of a child has during the period that the parent has possession of the child:
- the right to physical possession and to direct the moral and religious training of the child;
- the duty of care, control, protection, and reasonable discipline of the child;
- the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure; and
- the power to consent to medical, dental and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.
- Each parent appointed as a conservator of a child has at all times:
- the right of access to medical, dental, psychological, and educational records of the child;
- the right to consult with any physician, dentist or psychologist of the child;
- the right to consult with school officials concerning the child’s welfare and educational status, including school activities;
- the right to attend school activities;
- the right to be designated on any records as a person to be notified in case of an emergency; and
- the right to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
- A parent appointed as the Sole Managing Conservator of a child exclusively has:
- the right to the services and earnings of the child;
- the power to consent to marriage, to enlistment in the armed forces of the United States, to medical, dental, and surgical treatment involving invasive procedures, and to psychiatric and psychological treatment;
- the power to represent the child in legal action and to make other decisions of substantial legal significance concerning the child, including the right to establish the primary residence of the child, except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, a power as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
- the power to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child.
A Joint Managing Conservatorship is nothing more than a division of these rights and powers between the parents. Parents can agree to share some of the rights that would otherwise belong only to a Sole Managing Conservator. Naming the parents as Joint Managing Conservators has no effect on visitation rights or on the amount of child support due under the guidelines. However, the parents can agree to do something that is different than what is called for in the statutory guidelines.
The Texas court that granted a divorce retains the power to modify the parts of the decree relating to children until a child is out of high school or living on his own. If, however, the children have lived for at least six months in another county in Texas, the case must be moved to that county upon any party’s request.
If children whose parents divorced in Texas have lived for at least six months in a different state, any suit to change custody will have to be tried in the state in which the children live. The same rule applies to parents who were divorced in another state and whose children have lived in Texas for at least six months. This rule is part of the Uniform Child Custody Jurisdiction Act, which has been adopted by almost every state in the nation, including Texas. Cases dealing with only support and visitation issues may be kept in the original court if one parent continues to live in the place where the divorce was granted, even if the children have moved out of state.
Persons Who May Bring Suits for Modification
Any person who has rights to possess a child under a court order may ask for a modification. This will almost always include both of the child’s parents and no one else. In some limited cases, other people may be allowed to bring a suit to modify a prior order. Examples are listed below.
A grandparent may start a suit asking for Managing Conservatorship of a child only if the grandparent can prove that the current court order puts the grandchild at risk of serious physical harm. Grandparents may ask a court to order specific times for them to visit a grandchild. Grandparents can start a suit to get only visitation rights if they can prove that:
- the parent who is the child of the grandparent has been in jail, prison, or has been found to be incompetent; or
- the parents of the child are divorced or have been living apart for at least three months; or
- the child has been abused or neglected by a parent; or
- the child has been found to be delinquent; or
- the grandparent is the parent of a person whose parents rights have been terminated (unless the child has been adopted by someone other than a step-parent); or
- the child has lived with the grandparent for at least six months out of the previous 24 months.
Persons With Whom the Child has Lived for Six Months
If the conservators under a court order have allowed a child to live with a person who is not a conservator for six months or more, the person who has cared for the child may ask a court to modify a prior court order to give him or her Managing Conservatorship. This would include a step-parent in situations where the child’s parent dies.
In each suit to modify a divorce decree the court will require the person who brings the suit (called the “Movant”) to prove certain facts. If the Movant cannot do this, the court will order that the divorce decree not change. Suits asking to change various parts of the decree require a Movant to prove different elements, but all elements must be proved by credible evidence presented through witnesses and documents. Generally, affidavits are not accepted by a court as evidence.
Any time a person asks for changes in a decree, he or she must prove that the circumstances of one or both of the parents, or of the child, have materially and substantially changed since the time of the prior order. Whether a change is “material and substantial” is decided on a case-by-case basis. Courts have ruled that anything from the increased costs of older children, to a move by a parent and the children across the country are material and substantial changes.
Elements Required for Modifying Specific Provisions
A suit to modify a prior order will require the Movant to prove different elements depending on the part of the divorce decree he or she is trying to change. The elements a Movant will be required to prove in the most frequently-sought modifications are listed below.
Motions to Modify Sole Managing Conservatorship:
A Possessory Conservator may believe that the child would be better off living with him or her than with the parent who was named Managing Conservator at the time of the original court order. In this event, the Possessory Conservator would have to prove that:
- the circumstances of one or both of the parents or the children have materially and substantially changed since the rendition of the prior order;
- retaining the current Managing Conservator of the child would be injurious to the child; and
- appointing the Movant as the Managing Conservator would be a positive improvement for the child.
If a parent who is a Sole Managing Conservator has allowed a child to reside for more than six months with the other parent or another person, that can also be grounds for changing Sole Managing Conservatorship.
If a suit is brought within a year of a prior custody order, the Movant must also prove that the conservatorship as set out in the current order presents a serious threat to the physical safety or emotional welfare of the child. Unless the Managing Conservator has left the child with the Movant for six months or more, a court must find a threat to the child before the Movant will even get a hearing.
Motions to Change Joint Managing Conservatorship to Sole Managing Conservator
Courts view a change from Joint Managing Conservators to Sole Managing Conservator/Possessory Conservator as a major change for a child. A Joint Managing Conservator seeking to be named Sole Managing Conservator will have to prove that:
- the welfare of the child is a matter of immediate and serious concern; or
- there has been a substantial and unexcused violation of the terms and conditions established in the existing Conservatorship decree; or
- the circumstances of the child or one or both of the Joint Managing Conservators have so materially and substantially changed since the rendition of the decree that it has become unworkable or inappropriate under existing circumstances; and
- the appointment of a Sole Managing Conservator would be a positive improvement for and in the best interest of the child.
Motions to Change Sole Managing Conservatorship to Joint Managing Conservatorship
If a Possessory Conservator wishes to be named Joint Managing Conservator of a child, he or she must prove that:
- the circumstances of one or both of the parents or the children have materially and substantially changed since the rendition of the prior order; and
- Retention of the Sole Managing Conservatorship would be detrimental to the child; and
- Joint Managing Conservatorship between the parents would be a positive improvement for a child.
It is rare to see a contested case in which a Movant is able to change his or her status from Possessory Conservator to Joint Managing Conservator. Most judges believe that Joint Managing Conservators must have a high level of cooperation. For this reason courts are not likely to appoint parents as Joint Managing Conservators without their agreement.
Motions to Change Visitation:
A motion to change the terms and conditions of visitation can occur within a Joint Managing Conservatorship or a Sole Managing Conservatorship. To win such a modification, the Movant must prove the following:
- the circumstances of one or both of the parents or the children have materially and substantially changed since the rendition of the prior order; or
- the order or portion of the decree to be modified has become unworkable or inappropriate under existing circumstances; or
- one of the parents has moved without giving the required 60 days’ notice of the move to the other parent.
A change in the terms and conditions of visitation will usually revise the schedule of time a child spends with each parent. In some unusual circumstances, however, such a modification could deal only with non-scheduled issues such as requiring a parent’s time with a child to be supervised.
A modification of the schedule of visits is almost always required when one parent moves more than about 50 miles away from the child, and this is the most common time that a suit to modify visitation occurs. A court will also decide who should pay any increased costs relating to access, including transportation costs like air fare or bus tickets for the child or hotel accommodations for a parent who visits a child from out of town.
Recent changes to the Texas Family Code now allow parents with weekend visitation to elect to extend their periods of weekend possession so that they begin at the time school ends on Friday and end at the time school resumes the following Monday. If such a provision is not in the prior order, the election may be made at the time other visitation provisions are modified.
Motions to Change the Relative Rights and Powers of Conservators:
Often, Joint Managing Conservators will discover that a joint right — for instance a right to determine where a child attends school — is unworkable because they cannot agree. That would be the appropriate time for one of the Joint Managing Conservators to ask the court to modify the parents’ rights, privileges, powers and duties. Similarly, if a Possessory Conservator can prove that there is a need for the child to receive psychological treatment and the Managing Conservator refuses to take the child to a therapist, the Possessory Conservator might ask a court to modify a prior order to give him or her the right to make decisions relating to the child’s mental health.
A Conservator who wants a change in the relative rights, privileges, powers and duties of the Conservators must prove that:
- the circumstances of one or both of the parents or the children have materially and substantially changed since the rendition of the prior order; or
- the decree or a portion of the decree to be modified has become unworkable or inappropriate under existing circumstances.
A Joint Managing Conservator who wants to change the relative rights and duties of the parents must also prove that such a change would be a positive improvement for and in the best interest of the child.
Sometimes a modification of the rights and duties as divided in a Joint Managing Conservatorship can have the same effect as a change in custody. For instance, a Joint Managing Conservatorship can be set up so that one parent maintains the child’s primary residence and has the child with him or her at all times except when the other parent exercises standard visitation rights. If a parent files a suit asking to be given the right to move the child 500 miles away, it means a major change in the lives of the child and the parents, even though no formal request for change of custody has been filed.
Motions to Modify Child Support:
The Movant must only show that the circumstances of one or both of the parents or the child have materially and substantially changed since the prior order to change the amount of child support. Support modifications may not be entered for amounts that were owed prior to the filing of a request for an increase or decrease. A parent who had custody of a child during a period for which he or she owed support may use that fact as a defense against a motion for contempt for nonpayment of child support during that period.
The Texas legislature has enacted guidelines setting out the amounts of child support that should be paid based on the paying parent’s net income from all sources. A new spouse’s income should not be considered in setting child support. Orders that were entered before there were child support guidelines may be modified so that the amount ordered is consistent with the guidelines. The Family Code is clear, that an increase. in the needs’, standard of living, or lifestyle of the person who receives the support is not a reason to raise the paying parent’s child support obligation. However, the courts will rule that if the paying parent’s lifestyle has improved, the children should benefit from his or her ability to pay more.
A court may set support in an amount that is different than what the guidelines call for based on factors including whether the paying parent is putting a child through college, the expense related to visitation and the income of the receiving parent.
A parent who pays support is also expected to pay the child’s health insurance premium and part of the uncovered medical expenses for the child. Given the high cost of both health insurance and medical care, issues relating to health insurance — including policy types and minimum coverage requirements —are frequently the subject of motions to modify child support.
Effective September 1, 1993, the legislature revised the child support guidelines to lower percentages of net income to be paid to each family in cases where a paying parent owes support to more than one family. These new provisions may allow a parent who pays for children in more than one family to change the amounts paid to each family.
The receiving parent may seek to modify a child support order which calls for support to be paid only through a child’s eighteenth birthday. Newer orders continue child support until a child is out of high school. In cases where children become disabled after a child support order has been established, modification is available to extend support indefinitely.
Best Interest of the Children
In all cases, the Movant must also prove that the requested modification would be in the best interest of the children involved.
Testimony of Children
Generally, judges take the position that children should not be asked to testify in custody matters. It is very difficult for a child to sit on a witness stand, look a parent in the eye and say under oath that he wants to live with the other parent. Judges may interview the children privately, however, and are required to talk to a child who is more than 12 years old if any party requests that the child be interviewed. Judges can decide whether to interview children who are under 12.
Children who are at least 12 years of age may sign a statement choosing one parent as their Managing Conservator. A child’s testimony about where he wants to live or the fact that a statement of choice has been signed are not binding on a judge. If a parent can convince a judge that pressure to choose has been put on a child or that a child’s choice would not be best for him or her, the child’s choice will not be honored. Generally, however, the choice of a teenager may greatly influence a custody decision.
Procedure for Modifying Prior Orders
Contents of Motion
All suits by parents to change court orders are started by filing a Motion to Modify Prior Order in Suit Affecting the Parent-Child Relationship. Suits brought by persons who were not mentioned in a prior order, like grandparents or persons with whom a child has lived for more than six months, would file a Petition for Further Action in Suit Affecting the Parent-Child Relationship.
Each request for a change in court orders must state that the elements necessary to prove the requested modification (listed above) exist. Motions which seek to change conservatorship within a year of a prior custody order must also contain an affidavit signed by the Movant stating specific facts to support a claim that the child is in danger of physical or emotional harm.
Citation and Service
Each person whose rights are affected by the order to be modified must be served with the Motion. Persons who are served with a motion must file a written answer within about 20 days if they want to participate in the modification proceedings. A court may not make a valid modification order unless all persons involved have been served with citation or have taken part in the suit.
A court can grant a party’s request to make an immediate change in the prior order until a full hearing on the requested modification can be held. In larger counties, hearings on temporary orders are heard by Associate Judges who hear only family law matters. A party to a modification proceeding who disagrees with the ruling of an Associate Judge may request a new trial before a District Judge, called a trial de novo. Parties pursuing trials de novo after an Associate Judge’s ruling are required to follow strict procedural rules to protect that right.
A court will not change Managing Conservatorship of a child during temporary orders unless it finds that the child’s physical or emotional welfare would be in danger if custody were not changed immediately, or unless a child over the age of 12 years has signed a statement choosing one parent as a Managing Conservator. Even in cases where children have filed such statements, if a Movant is unable to prove that the temporary custody change would be in the best interest of the child, the change will not be ordered.
In situations where the children have lived for more than six months in a county other than where the prior order was entered, the original court may enter temporary orders before moving the case to the new county.
Attorneys prepare for final hearings on Motions to Modify Prior Orders in Suit Affecting the Parent-Child Relationship in the same way that they prepare for original divorce trials and other law suits. Clients are asked to prepare lists of possible witnesses and written questions to be answered under oath, called interrogatories, may be sent to each party. Documents, photographs, video and audio tapes relating to the matters in question will also be collected by each side. Often, the parties and some experts will be required to give depositions.
In suits to modify prior orders, parents are entitled to a jury only if custody is contested. Judges decide requests to change visitation, support or the relative rights of the parents. Even in cases where a parent wants a change of custody, the jury only gets to decide who gets custody, not the parents’ rights, visitation or support.
Changes to child-related parts of a prior order will be set out in an Order Modifying Prior Order in Suit Affecting the Parent-Child Relationship. Parts of the prior order not addressed by the new order will remain in effect.
In Texas, the court (or the parties by agreement) will (1) appoint one spouse as the Sole Managing Conservator of the child/children (the party having custody), and the other party as the Possessory Conservator of the child/children (the party having visitation), or (2) appoint both parents as Joint Managing Conservators of the child/children and then allocate the rights and responsibilities between the parents.
In 1973, Texas adopted the Equal Rights Amendment and specifically provided that in deciding custody cases, the court shall consider “the qualifications of the respective parents without regard to the sex of the parent.” Because of the fact that many working couples share the child raising responsibilities before separation, and because custody decisions are made without regard to the sex of the parents, many couples prefer to be Joint Managing Conservators.
If you and your spouse can agree on custody, the court will almost always approve your written agreement. If you and your spouse cannot work out an agreement, the court will decide custody. A custody battle is extremely expensive and destructive.
Many people feel that they should be appointed the Sole Managing Conservator of their children, so that they will have controlling power after divorce, and their spouse will not have any control. That is not realistic. The Legislature has concluded that if both parents are given the ability to act more like parents after divorce, their children will benefit. Accordingly, the Legislature has established a detailed set of rights, powers, privileges and duties for both the Sole Managing Conservator and the Possessory Conservator after divorce. Many people conclude after reviewing the respective rights, powers, privileges, and duties of both the Sole Managing Conservator and the Possessory Conservator that it is not worth fighting to become the Sole Managing Conservator and that their children will be better off if they work out a Joint Managing Conservatorship with their spouse.
Joint Managing Conservator means the sharing of the rights, privileges, duties and powers of a parent by two parties, even if the exclusive power to make certain decisions may be awarded to one party. Joint Managing Conservator does not mean that there will be equal or nearly equal periods of physical possession or access to the child by each parent. Frequently, the primary physical residence of the child is designated.
Many people are against Joint Managing Conservatorships on the grounds that “if they can’t get along while married, they can’t get along after divorce”. In recent years, the trend has been toward Joint Managing Conservatorship. Some people believe that even though two adults no longer desire to be married to each other, they can still work together for the benefit of their children after divorce. It is also frequently stated that the adults get divorced, not the children. If you stop to think about it, children have the right to have two parents after a divorce.
In 1987, the Texas Legislature adopted the following policy:
It is the policy of this state to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents who share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.
At the same time, the Legislature provided that even if the parties dispute custody, a judge or a jury may appoint the parties Joint Managing Conservators. I urge my clients to strongly consider Joint Managing Conservatorship.
Texas has now adopted presumptive Joint Managing Conservatorship. The court is required to appoint both parents as Joint Managing Conservators unless it finds that the appointment would significantly impair the child’s physical health or emotional development.
I have found that if the parents will take parenting classes while they are separated, they will significantly improve their ability to work together for the best interest of the child. Also, I have found that if parents will jointly take child discipline classes one to three years after the divorce, they will be able to prevent a lot of problems that children often suffer from divorce.
In order for a Joint Managing Conservatorship to work, I have found that it is necessary for the parents to be free of resentment toward each other, be willing to listen to each other, be willing to communicate with each other, be willing to “give,” and be willing to work together for the benefit of their children.
Texas has adopted “rehabilitation alimony.” Generally, alimony may be awarded to a spouse if the marriage was of at least 10 years duration and the spouse who is seeking alimony lacks sufficient property to provide for their minimum reasonable needs and:
- is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
- is the custodian of a child with a physical or mental disability that precludes employment outside the home; or
- clearly lacks earning ability in the labor market to provide for their minimum reasonable needs.
Generally, alimony is limited to three years. The amount of alimony is limited to the lesser of $2,500 per month or 20% of the obligor’s average monthly gross income. Alimony is taxable to the recipient.
If you think that you may be a candidate for alimony, remember the purpose is to rehabilitate the recipient so that person can re-enter the job market.
The Texas Legislature also enacted the following child support guidelines:
- 1 child
- 20% of obligor’s net resources
- 2 children
- 25% of obligor’s net resources
- 3 children
- 30% of obligor’s net resources
- 4 children
- 35% of obligor’s net resources
If the obligor has children other than those involved in the current divorce, special guidelines apply, taking into account all of the obligor’s children.
The definition of net resources is quite long —- for most people, it means all wage and salary income and other compensation for personal services, interest, dividends, royalty income, self-employment income and net rental income, less social security taxes and federal income tax withholding for a single person claiming one personal exemption and the standard deduction. The guidelines apply automatically to the first $6,000.00 of net resources per month. When net resources are above $6,000.00 per month, the court has discretion to set additional child support, based on the needs of the child. The lifestyle of the recipient of child support is not a factor in determining the amount of child support.
Except in very unusual situations, child support is now paid by wage withholding from the obligor’s employer.
You should note that the child support guidelines apply equally to men and women.
The Texas Legislature has considered the importance of parental involvement in child development and established minimum imitation schedules for Texas. A partial listing of the schedule is set forth below:
Weekends - beginning at 6:00 p.m. on the first, third and fifth Fridays of each month and ending at 6:00 p.m. on Sunday; Wednesday of each week during the regular school term beginning at 6:00 p.m. and ending at 8:00 p.m. ;
Christmas - in even-numbered years beginning at 6:00 p.m. on the last school day before the Christmas school vacation begins and ending at noon on December 26; Christmas - in odd-numbered years beginning at noon on December 26 and ending at 6:00 p.m. on the day before school resumes;
Thanksgiving - in odd-numbered years beginning at 6:00 p.m. on the day the child is dismissed from school for Thanksgiving and ending at 6:00 p.m. on the following Sunday;
Spring Break - in even-numbered years beginning at 6:00 p.m. on the day the child is dismissed from school for spring vacation and ending at 6:00 p.m. on the day before school resumes;
Summer - thirty (30) days to be exercised in no more than two (2) separate periods of at least seven (7) consecutive days;
Child’s birthday - from 6:00 p.m. to 8:00 p.m.;
Mother’s Day/Father’s Day weekend - from 6:00 p.m. Friday to 6:00 p.m. Sunday;
If the visiting parent and the child reside more than 100 miles apart, the visiting parent gets every Spring Break, forty-two (42) days during the summer and the choice of the standard weekends or any weekend selected by the visiting parent.
Also, on the Friday and Wednesday visitation, the court may permit the visiting parent to pickup the child at the time the child’s school is regularly dismissed.
It is well recognized that frequent contact after divorce between a child and each parent optimizes the development of a close and continuing relationship between each parent and the child. Of course, such frequent contact can be hindered if one parent moves after divorce. If the primary parent moves out of the county after divorce, then the primary parent is required to pick up the child at the end of the other parent’s period of possession, at the other parent’s residence.
These guidelines apply to children over three (3) years of age. Some of the Judges are applying the guidelines to children under three (3) years of age and other Judges are not. There are many other provisions of the guidelines not outlined above.
This is a very common question and one which is HIGHLY misunderstood. The Texas Family Code section that deals with a child being able to choose a parent to live with is found in §153.009. This is the new statute and repeals the old law found in §153.008.
The old Texas statute stated that a child 12 years of age or older could file with the Court in writing the name of the parent who the child would choose to have the right to determine where they lived, subject to the approval of the court. This DID NOT mean that they could choose which parent they wanted to live with. It meant that they could let their preference be known to the court and the court would decide. This is a common misconception. The choice was simply evidence to be considered with all the other evidence.
As I mentioned above, however, this Texas law has been repealed. What ended up happening is that each parent would get the child to sign the paper to choose them, putting them squarely in the middle of the litigation.
The new Texas law still lets children have a voice or choose, but in a different format. The new Texas law (§153.009) allows a party (a parent) to request the judge to talk with the child. If the child is over 12 years old, the judge has to meet with the child. If the child is under 12, then the judge may meet with the child but is not required to do so. The new law allows the child to have a say so on visitation with a parent as well, if the judge wishes to hear this evidence, not just which parent chooses where they live.
As stated earlier though, this interview is just evidence the court can use to make a decision. The court is not required to follow the child’s wishes. And in many recent examples it has been proven that unless there are good reasons - abuse, neglect, usage of illegal substances or similar actions - this request will most likely not be accepted by the judge.
The majority of judges believe that it is critical for both parents to be involved in the day to day growth of a child. So be careful if you think your child (or you) will be successful in this request. As one kids told a judge - my Daddy lets me play xBox so I want to live with him.
I hope this makes the issue of when a child can choose which parent to live with in Texas a little bit clearer.
How many lawyers does it take to screw in a light bulb? None lawyers only screw us.
I have yet to meet anyone who likes their lawyer! And I can personally tell you that I have never disliked anyone as much as I have my spouses lawyer. They only care about one thing and it is green (or plastic). So be aware now that in every case I have ever discussed legal counsel does not care.
So what do you do? This is not a easy answer and the only advice I can give is to ask for references from friends who have direct experience. Never should you go into this decision blindly for you will get better chances gambling in Vegas then you will on getting a good lawyer without some research.
And lawyers are very good at advertising. Just check your local city magazine or do a simple search from any engine (Yahoo, Google or others) and you will find dozens and dozens of options. And most of them want to charge you for the introduction visit and then ask you to pay a large retainer and sign a complex contract.
Thus there are a few things that you can do to help with the situation. Try the following when you are looking for legal counsel…
- References - as mentioned above ask your friends to determine if they have used or know of anyone for they will have had first had experience with that person and their team. Ask about their experiences, where they available during off hours or weekends, did they prepare the materials in a timely fashion, did they make meetings, and other similar questions.
- Age and experience - be aware of the newly hired legal counsel that will be billed at a reduced rate for your case. Remember this is serious and will determine the course of your remaining years so do not cheap out by taking the intern. Ensure that when you hire your legal counsel they are the ones working on your case, taking the phone call from opposing counsel, responding to request and making key decisions relative to your case.
- Size does matter - ensure that the legal counsel has a staff to provide support and expertise. During my legal battles I contracted with a lawyer who was operating out of a shared office with one assistant. It became a real challenge to get things done for he was a party of one and with his other clients I became part of the pile of work on his desk.
- Ask for their mobile number - this one might be hard for most legal counsel wants to separate themselves from cases during off hours or weekends. But this is a good test to determine how dedicated they are to servicing your needs and I am promise you will need the number of key times.
- No charge for first visit - if you are being asked to pay for the first visit then got to the next one on your list. The first meeting is key to both parties to determine if you can work together and charging for this introduction meeting is not justified. And there are plenty of legal counsel’s that will not ask for first meeting payments.
- Court experience - while no one wants to go to court it is my experience that most do at least once during the divorce proceedings. Ensure that your legal counsel has experience with the local courts and more importantly the judges.
- Retainer - once you select legal counsel they will ask you to pay a retainer or deposit and this is not a small number. In one situation where I had to change legal counsel the new one asked for $20,000 in retainer. Never give them that much! My recommendation is ask for a list of next steps and then hours to accomplish these steps. This will give you an educated guess of what cost will be incurred during the initial responses. Pay them for that work only.
- Contracts - okay how often do we sign contracts and no read? Read this one cover to cover! Take it home and review before you sign! This is not to prepare you for a negotiation for legal counsel will most likely not budge on any of their terms but this way you are not surprised by any of the fine print. A good example was in my legal counsel contract (which I did not catch) he charged for his travel time to-from court with a minimum of one hour each way and then expense surcharge for fuel.
- Review your bills - it actually amazes me how detailed my billing where from legal counsel and I mean down to the date, time, details of the task and more. So why so much detail? Because this is how your legal counsel charges you for everything they do on your case. So review your bills! Ensure they are doing the work as reported and question them if you do not understand.
With the divorce rate increasing across the United States there is plenty of work for lawyers. So be sure to select one that will work for you and protect your rights.
On August 17 2007 it became official. I was part of a growing trend and now labeled a single father. After almost 16 years of marriage and four years prior dating I became single again but this time I was a lot older and had two small children.
And to make the situation even worse my spouse was (and continues) to pull out all the stops to make this a terrible process for me, family, friends and the kids. How could someone that I knew for so long become such a horrible person. Did I not spend years dating to ensure I picked the right partner? Well none of this mattered anymore for she made the decision not to work on the marriage and move forward with the divorce.
I had no choice but to become a single parent and do everything I could to not put the kids in the middle. Are you kidding? Not put the kids in the middle?
No matter how to try to justify the situation and no matter what precautions you take the kids will always be in the middle. Thus I decided it was time to share my experiences of not only the divorce process and lessons learned but to also discuss the affect it has on the kids.
No matter how hard you try they will be directly affected by the divorce and this will stay with them for the rest of their years. And the behavoir of the parents will have a direct affect on how they grow and mature.
I hope you enjoy!