May « 2010 « Julie Caskey, Associate

Modifying a Child Support Order in Texas

Posted on May 25th, 2010 5 Comments

In a May 21, 2010 news release, the Texas Workforce Commission reported that unemployment rates in Texas for the month of April decreased–albeit only slightly–from 8.5% in March to 8.4% in April. Despite this slight drop, many Texans still feel the negative impacts of a depressed economy. The condition of the economy has left many Texas parents wondering about ways in which their child support order can be modified. Parents who are paying want to reduce the amount; parents who are receiving want to up the amount. Many clients want to know if a child support order can be modified, and if so how?

Under Texas law, orders for Child Support can be modified. The Texas Family Code outlines the requirements which must be met before a court will modify a child support order:

The court may modify an order that provides for the support of a child if:

(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition; or

(2) it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.

Thus, a child support order can be modified at any time if the party seeking modification can show a change in circumstances that is material and substantial. Examples of these types of changes depend on the specific circumstances of the parties but can include significant increase or decrease in the obligor’s income or increases in the needs of the child (child becomes ill or disabled, for example).

Once three years have elapsed, a party seeking to modify a child support order is not required to show a material change in circumstances if he or she can meet the change in income requirement. Courts will modify a child suport order if applying the child support guidelines to the payor’s current income results in a child support payment that differs by 20% or $100 from the amount in the previous order.

Generally, courts are reluctant to decrease child support orders. It is usually far easier to get a child support order increased than to have it decreased. However, each situation is unique. If you would like to speak with an experienced family law attorney about modifying your child support order, contact the law office of Garg & Associates, P.C.

Julie C. Caskey is an attorney who practies family law with Garg & Associates in The Woodlands, Texas.

Uncategorized

Child Support Payments After Death?

Posted on May 20th, 2010 3 Comments

By Julie C. Caskey

RELATIVELY NEW LAW HAS TEXAS PARENTS PAYING CHILD SUPPORT EVEN AFTER THEIR OWN DEATH

In 2007, during its 80th legislative session, the Texas legislature made some important amendments to Texas child support law that many Texans remain unaware of even today. Texas child support obligors can now be required to make child support payments even after they have died!

PRIOR LAW

Prior to these legislative amendments, Texas law terminated a child support order upon the death of the party ordered to pay child support (the obligor). When the obligor died, so did his or her duty to pay child support. The obligor’s estate was liable for arrearages and associated interest, but not a prospective supoprt obligation. Because the financial needs of families and children do not cease upon the death of the obligor parent, the Texas Legislature drafted legislation to address the harm resulting from the termination of child support obligations upon the death of the obligor.

CURRENT LAW

The new legislation amended several sections of the Texas Family Code. The most significant–and perhaps the most controversial–change is in section 154.006(a), regarding the death of a child support obligor. The legislation deleted the text which provided that a child support order terminates on the death of a parent ordered to pay child support.

A new section, Section 154.015, addresses the acceleration of unpaid child support and states that “[i]f the child support obligor dies before the child support obligation terminates, the remaining unpaid balance of the child suport obligation becomes payable on the date the obligor dies.” As an example, this means that if an obligor parent is paying $500 per month in child support and dies on the child’s tenth birthday, there is still eight years of child support payments due to that child. $500 times 12 months a year times eight years = $48,000 in child support. Under Texas’ new law, the obligor’s estate now owes $48,000 to the obligee parent.

This is true even if the obligor had a will leaving his or her entire estate to someone else. The new law makes child support a priority of the estate, meaning it will be paid first, before any distributions under a will are made.

WHAT’S THE BIG DEAL?

This may seem like a good law to some; after all, the legislature was merely trying to ensure Texas children continue to get support they require. However, the law has some far reaching–and maybe unintended–consequences for Texas families. Imagine this family: Husband and wife are married. Husband has a daughter from a previous marriage and has been faithfully making child support payments. Husband and wife also have a son together, for whom no court ordered child support exists because husband and wife are the parents of the child and are married to each other. Further assume that son is a special-needs child, and to ensure he is well taken care of after husband’s death, husband leaves everything in his will for the benefit of his son. Now, assume husband dies while daughter is 10 years old. Eight years of child support have a priority claim against the estate. Often, an obligor dies with an estate so small, the prospective child support payments swallow up the entire estate, leaving nothing left for distribution to the parties listed in the husband’s will.

With this new legislation, how can Texas parents be sure that all of their children will be taken care of in the event of their death? As illustrated above, even leaving everything to your children in your will may result in them actually receiving very little or nothing at all. Texas parents need to be aware of this new legislation and its unintended consequences. Parents should speak with an attorney about their options in drafting their wills and other estate planning techniques that will ensure their children are well-taken care of.

Julie C. Caskey is an associate with the law firm of Garg & Associates, PC. She is a published author on Texas family law and estate planning matters. For a full discussion of the many unintended consequences of Texas’ new child support legislation, please see Ms. Caskey’s article here.

Uncategorized Child Support, Estate Planning

Fault or No Fault?

Posted on May 20th, 2010 3 Comments

By Julie C. Caskey

Clients often ask whether they must prove fault on the part of their spouse before a divorce can be granted in Texas. Texas provides for “no-fault” divorce, which means a party seeking a divorce can simply state that there is marital discord and there is no reasonable expectation of reconciling. However, in Texas, a party seeking divorce may also pleaad several fault grounds including the following:

CRUELTY.  The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

ADULTERY.  The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

CONVICTION OF FELONY.  The court may grant a divorce in favor of one spouse if during the marriage the other spouse: (1)  has been convicted of a felony; (2)  has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state; and (3)  has not been pardoned.

ABANDONMENT.  The court may grant a divorce in favor of one spouse if the other spouse: (1)  left the complaining spouse with the intention of abandonment; and (2)  remained away for at least one year.

LIVING APART.  The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.

CONFINEMENT IN MENTAL HOSPITAL.  The court may grant a divorce in favor of one spouse if at the time the suit is filed: (1)  the other spouse has been confined in a state mental hospital or private mental hospital, in this state or another state for at least three years; and (2)  it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.

Pleading a fault ground in a divorce has its advantages and disadvantages.

1. Proof. Before a divorce can be granted on a fault ground, the party seeking to establish the fault ground must satisfactorily prove it’s existence to a court. While some fault grounds may be relatively easy to prove, such as confinement in a mental hospital or commission of a felony, adultery is usually very difficult to prove. Additionally, in situations involving cruelty, the complaining spouse may find it emotionally difficult to testify about the experience. If a party does not have adequate proof, the court will not grant the divorce if it is based only on fault grounds.

A Word to the Wise. If you are considering pleading a fault ground, you may also want to consider pleading insupportability (the no-fault ground in Texas). If you plead both and fail to offer enough proof on the fault ground, the court will still be able to grant your divorce on the basis of insupportability.

2. Division of Community Property. One advantage to pleading and successfully proving a fault ground is that courts may often award a disproprotionate amount of the couple’s community property to the party not at fault. If you believe you can present adequate proof to the court, and desire a larger amount of the community estate, you may wish to consider pleading a fault ground.

**Nothing in this blog is to be considered legal advice.

Julie C. Caskey is an associate with the law firm of Garg & Associates, P.C., in the Woodlands, Texas. Ms. Caskey’s practice focuses primarily on Texas Family Law.

Uncategorized Divorce

Getting Divorced in Texas? Frequently Asked Questions

Posted on May 20th, 2010 3 Comments

The decision to file for divorce can be one of the most difficult and emotionally challenging decisions you may ever have to make. Many clients have questions about what to expect from the divorce process. Below is a list of frequently asked questions about divorce in Texas. If you have questions that aren’t answered here, or wish to speak with an experienced Texas divorce attorney, contact the attorneys of Garg & Associates, P.C. today.

1. How does the divorce process begin?

A divorce begins with the filing of a document called the Original Petition for Divorce with the court of proper jurisdiction. The person who files for divorce is called the Petitioner; his or her spouse is called the Respondent. Once a Petitioner has filed for divorce, notice must be given to the Respondent. This can be accomplished several ways, but is most often accomplished by having the Respondent served with a copy of the Original Petition for Divorce or having the Respondent sign a Waiver of Service.

2. How long does it take to get divorced?

In Texas, a divorce cannot be granted until the Original Petition for Divorce has been on file with the court for at least sixty (60) days. If the Petitioner and Respondent agree to all issues in the divorce (child support, custody and visitation, division of property and debts, etc.), a divorce in Texas can be granted on the 61st day after the Petition is filed. The process can be much longer if the parties cannot reach an agreement with respect to all the issues. In this case, the divorce may take several months to be finalized. In certain situations, the 60-day waiting period can be waived.

3. Where do I file for divorce?

To file a suit for divorce in Texas, either the Petitioner or Respondent must have been a resident of the State of Texas for six months before he or she files for divorce. Further, the suit must be filed in the Texas county in which either the Petitioner or Respondent has lived for the 90-day period preceeding the filing of the Petition.

4. Do I have to prove fault to get a divorce in Texas?

Texas is a no-fault state; therefore, is it not necessary to prove fault to get divorced in Texas. Divorces in Texas can simply be granted on the grounds of insupportability, meaning that there is marital discord for which no reasonable expectation of reconciliation exists. However, fault grounds may also be pled. For a discussion of the advantages and disadvantages of pleading fault grounds, see Fault or No Fault?

5. What if my spouse doesn’t want to get divorced or feels we will reconcile?

In Texas, all it takes is for one spouse to feel that there is no reasonable expectation of reconciliation. If one spouse provides testimony that a reconciliation is not reasonably expected, a court has the power to grant the divorce.

6. What can I expect from the divorce process?

The more agreements you can reach with your spouse, the faster your divorce will be. If you and your spouse reach an agreement on all the issues in the case, you both will sign an Agreed Final Decree of Divorce. This document is an order from the court detailing the rights and duties of the Petitioner and Respondent, divides any property and debts, and may provide for child support and visitation if children are involved. At least one party will then be required to appear in Court to answer a series of questions under oath. The judge will review the decree. If children are involved, make a determination that the provisions of the Decree are in the best interest of the children. If property is involved, the judge will review the terms of the decree to ensure that the property is divided in a just and equitable manner. Once the judge approves the final decree, the divorce is garnted and finalized. When an agreement cannot be reached between the parties, the divorce process may be significantly longer. In this case, the parties will appear before a judge, give testimony, and often have witnesses give testimony. The judge will then decide all remaining issues based on the testinony given and evidence presented, and issue a final order.

7. How is property divided in a Texas divorce?

Texas is a community property state. Texas classifies property as either community property or separate property. Community property is defined as all property that was acquired during the marriage, including income from employment earned during the marriage. Separate property is all property that was owned prior to marriage or that was acquired during the marriage by gift or inheritance. In a Texas divorce, only the community property is subject to division. Many clients mistakenly believe that community property must be divided 50-50. However, Texas law only requires that the community property be divided in a way that is “just and equitable.” Therefore, a 50-50 division of community property is neither guaranteed nor required.

8. How much child support will I receive or be required to pay?

The amount of child support a court will order depends on a number of factors including the needs of the children, the payor’s net resources/income, and the number of children the payor has a duty to support. In most cases, child support is calculated using a formula contained in the Texas Family Code. Under the Family Code, the following amounts are considered in the best interest of the child/children:

1 child: 20% of the payor’s net resources; 2 children: 25% of the payor’s net resources, 3 children: 30% of the payor’s net resources; 4 children: 35% of the payor’s net resources; 5 children: 40% of the payor’s net resources; 6 or more children: Not less than 40% of the payor’s net resources.

9. When is my divorce final?

The divorce is finalized when the judge approves and signs a document called the Final Decree of Divorce.

10. Do I have to wait to get married again?

Texas requires a person wait at least thirty (30) days after the divorce is granted before he or she can marry.

Uncategorized Child Support, Divorce, Property Division

Modifying a Child Support Order in Texas

Child Support Payments After Death?

Fault or No Fault?

Getting Divorced in Texas? Frequently Asked Questions

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