Law Office of Michael G. Diaz, P.C.
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Providing Personalized Counsel for a Positive Future
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As children get older and a parent’s financial situation changes it may become necessary to seek a modification of the prior support order. In order to change the order, a party has to file an Petition to Modify the Parent-Child Relationship which opens back up the prior child support case.
Texas law requires that in order to change the prior order, the party seeking the change must show:
1. that the circumstances have materially and substantially changed, or
2. at least three years have based since the prior order and the new guideline child support would differ from the last order by at least 20% or $100.
If the parent paying support has changed jobs and his or her income has gone up or down the situation may warrant a new calculation to determine the appropriate support amount. Child support is also based on how many children the paying parent has, so if that parent has a new child the percentage of income going to child support would go down.
It is important to remember that only the judge can change the child support amount. Just because you have a new child or your income has gone down doesn’t mean you can start paying a lower amount. The parent must file a request to modify with the court and have it approved by the judge before it is effective.
If you or the other parent’s financial situation has changed it may be beneficial to speak with an attorney and see if a modification would be possible and what change in support you might expect. Then you can decide if it is in your child’s best interest to seek a child support change from the court.
There are two new bills currently in the Texas Legislature which are aimed at making getting a divorce in Texas more difficult.
Texas House Bill 93 would remove the ability to get a divorce based on “insupportability.” Insupportability is the basis for most divorces and allows party to divorce without assigning fault. Instead, a spouse would have to prove the other party was at fault for the breakup of the marriage based on things such as adultery, abuse, abandonment, etc.
Texas House Bill 65 would increase the divorce waiting period in Texas from 60 days to 180 days if the couple has a child. Even agreed or uncontested matters would require the 180 days waiting period.
Both bills aim to make getting a divorce more difficult but would come with significant issues. Forcing couples to prove fault means the spouses are going to spend much more in attorney fees to prove his or her case. Proving fault would also mean that more cases would go to trial which backs up the family court system and means the divorce process would take much longer.
Additionally, the waiting period also means more attorney fees because the attorneys are on the case longer. The waiting period would delay a person’s ability to move on with their life and increase the uncertainty that comes with not having a final resolution.
en a parent gets enters into a new marriage and the other parent is no longer involved in the child’s life the topic of a stepparent adoption sometimes comes up. The stepparent and child may already be living a parent-child relationship and the parties may want to formalize that relationship.
A stepchild adoption in Texas follows the same general procedure as a regular adoption. A child can only have two parents, so first there must be a termination of one of the biological parent’s rights. The termination can be based on things such as abandonment, failure to support or if the parent signs a Voluntary Affidavit of Relinquishment of Rights. Second, the adoption process is completed which includes the filing of the petition to adopt, criminal background check, and completion of a social study.
When handling a stepparent adoption, the parent who is no longer in the picture may be willing to sign the affidavit of relinquishment which can speed up the process of termination. Additionally, the process of a social study can be done quicker because the child is already living with the stepparent. The person performing the social study can get a pretty clear view of the relationship between the parties and how the child does in the stepparent’s home.
Parties should be aware that an adoption is always a serious and important decision. Parents should speak with an attorney to make sure that they understand all of the legal consequences of both the termination of parental rights and the adoption itself.
People are often of the understanding that children 12 years or older can get to decide which parent they will live with, but this is not necessarily the case. Texas Family Code 153.009 states that a judge “shall interview in chambers a child 12 years of age or older” if a request to do so is made by one of the attorney’s in the case to determine the “child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.
However, interviewing the child doesn’t lessen the judge’s discretion to determine the best interest of the child. The judge still has the final say based on what he or she feels is in the best interest of the child considering the factors set forth in Holley and discussed here, such as the emotional and physical needs of the child, any potential danger, and the parents’ ability to meet the needs of the child.
Additionally, although most custody cases are decided by a judge a party is entitled to a jury on certain issues if he or she wants and in a jury trial the judge may not interview the child.
So although the desires of a child are definitely an important factor for the court to consider, those desires are still only one of many factors a court may consider. You should discuss with your attorney whether an interview with the court would be appropriate in your case, but plan on providing the court with supporting evidence nevertheless.
In my last article, I discussed Texas House Bill 453, and the way it would attempt to change the decision making process as it relates to a judge’s child custody decisions. I mentioned that the “best interest” of the child is always the key consideration for courts. Texas Family Code Section 153.002 states “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
But what exactly is “best interest of the child” and what goes into a court’s consideration of best interest. The leading case on this issue is Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The Holley case sets forth nine factors to be “considered by the courts in ascertaining the best interest of the child.” Those factors include:
1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best interest of the child;
6. the plans for the child by these individuals or by the agency seeking custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a property one; and
9. any excuse for the acts or omissions of the parent.
However, the Holley court goes on to say that the above factors are “by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.”
When custody is at issue it is essential to that you understand these factors and how they go into the best interest of the child standard. You and your attorney should discuss the factors and strategize how each of them fits the unique circumstances of your case.
There is currently a bill in the Texas Legislature, Texas House Bill 453 which aims to promote equal custody to parents in a divorce.
Currently, the Texas Family Code mandates that the “best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Court are given discretion to decide what type of visitation plan is best based on the specific circumstances of the parties.
Texas House Bill 453 would change that by saying when parents are named joint managing conservator “the court shall enter a possession order.. .that provides for equal parenting, unless the court determines that the order is not in the best interest of the child…”
It may seem like a small change in the language, but it aims to make equal custody the default position in a divorce instead of what the judge decides is in the best interest of the child. The concerns about the bill seem to be whether it will overly limit the discretion of a judge to evaluate the specific circumstances of a given case. Additionally, the bill doesn’t say what “equal parenting” is. Does that mean divide the week in half, alternating weeks, or some other schedule? The bill doesn’t define the term.
It will be interesting to see what kind of opposition and support this bill receives moving forward. A copy of the bill can be seen here: http://www.legis.state.tx.us/tlodocs/85R/billtext/html/HB00453I.htm .
If spouses in a divorce or parents in a custody suit are unable to reach agreements on property or custody issues and a court hearing becomes necessary, there are few things to keep in mind for when you go to court.
First, look over any notes you may have regarding events that have taken place during the relationship. Make a timeline to remind yourself of key dates. Review any letters or emails you have from your attorney and look over any texts from the other party regarding key issues. In Collin County, temporary order hearings are limited to 20 minutes per side so if you can readily testify as to dates and events then it will help your case.
Stay in communication with your attorney. If you have questions about what will happen during the hearing set up a conference with your attorney so you know both of you are on the same page. Ask your attorney if there are any specific events or issues you should be prepared for.
While in court, always be respectful of the judge and other court personnel. Dress appropriately, and turn off all cell phones while inside the courtroom. When testifying, always be truthful and don’t try to argue with the opposing attorney or engage in actions such as rolling your eyes. You want to avoid being excessively emotional. If an objection is raised wait for the judge to rule on the objection before answering.
When in court you want to be able to quickly and clearly present your side to the judge. This makes it more likely that the court will award you the relief you are seeking.
have previously discussed child support and how to calculate guideline child support obligations based on income in Texas. But what exactly is income? Sometimes that question can be tricky. The Texas Family Code actually uses the term “net monthly resources.”
Net resources includes all wage and salary income, but it also includes most money received from any source. According to Texas Family Code Section 154.062 net resources also include self-employment income, net rental income, interest income, trust distributions, annuity income, and gifts and prizes. Other benefits, included as net resources, include:
1. Severance pay,
2. Retirement pay,
3. Social security benefits (other than supplemental security income),
4. Veteran’s Affairs disability benefits,
5. Unemployment benefits,
6. Disability & worker’s compensation benefits,
7. Alimony, and
8. Child support received.
Section 154 also includes what resources are not included in the “net resource” calculation including, (1) return of capital or principal, (2) accounts receivable, (3) welfare benefits, (4) foster care payments, and (5) spouse’s income.
Since the child support guidelines start with determining what the net resources of a person are, it is important to make sure that you have included all appropriate resources and haven’t included those that are not part of the net resource determination.
If you have questions about child support or if there's been an increase or decrease in salary, you can schedule a consultation in our McKinney office. We can sit down, go over the numbers, and calculate what child support based on that change in circumstances.
Congratulations, after months of litigation and negotiations you and your spouse have reached a settlement in your divorce. The final decree of divorce is drafted and approved by the judge and the stress that you’ve felt for so long is finally gone.
But often times, people forget that besides the divorce decree there are other documents that needs to be signed. For example, if a house is awarded to one spouse, the other spouse needs to execute a warranty deed giving up that spouse’s interest in the property.
If there is a retirement account that was split between the spouses, the parties need to make sure a Qualified Domestic Relations Order (QDRO) is also signed by the court and sent to the account administrator. Many times although the divorce is final, parties fail to complete the QDRO until years later. The best, most cost effective time to get it done is at the same time as the divorce decree.
Another final detail that comes up is a name change. If a wife has had her last name changed from her married name back to her maiden name, that name change becomes effective as soon as the judge approves the divorce. However, the wife will still need to take the decree to the social security office to get a new social security card and to get a new driver’s license.
Finally, I also always recommend that my clients update their will after a divorce. A spouse’s estate has undergone a significant change with the property and debts that were divided in the divorce and a party should reevaluate how he or she wants those handled along with who should be the new beneficiary. This also goes for any payable on death accounts such as life insurance or bank accounts that have a former spouse named as the beneficiary.
Although many times people just want the divorce over with, it is important to make sure that all of the final details are covered. You want to be in a situation where you don’t have to think about these things years down the road when documents can be lost or when something might be time sensitive.
At my McKinney office, I am often asked about how student loans are treated in a divorce. Reports say that nearly 7 in 10 graduate with student loans and the average debt amount is $28,400. These loans are often the largest debt couples are having to deal with (or second behind the house mortgage).
Student loans in Texas are treated as any other personal debt. The general rule is that if the loans were incurred before the marriage those loans are the separate debt of the spouse who took out the loan and can’t be divided.
If the loans were taken out during the marriage then the general rule is that the loans are community debt and may be divided between the parties. However, the judge still will divide the debt in a manner he or she believes is a just and right division of debt. So taking into consideration the education and employability of a party and the earning capacity the judge may still award the entire debt to the spouse who took out the loans.
Student loans are part of the larger community estate and must be considered with the overall facts and circumstances of the marriage. At the Law Office of Michael G. Diaz, P.C. we can give you case specific advice so you can know what to expect as you move through the divorce process.
Michael Diaz is a Divorce and Family Law attorney in McKinney, Texas.
Providing effective and efficient solutions to Divorce, Custody, and Family Law clients in McKinney, Frisco, Allen, Plano, Melissa, Princeton, Prosper, Fairview, Celina and throughout Collin County.
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