texas child support law

Texas Child Support – Overtime Pay and Unemployment

Texas Child Support LawOvertime, Unemployment and Underemployment:  TEXAS CHILD SUPPORT LAW

I am often asked the following questions regarding child support:

  1. “Does overtime count when calculating my child support”?
  2. “What if I’m unemployed?
  3. “Can I quit my job or reduce my income to avoid paying higher support”?

Does Overtime Count?

The answer is simple, YES.  Chapter 154 of the Texas Family Code specifically states “overtime pay” is to be included in a person’s net income. In fact, everything is considered income for purposes of child support except the following:

(1) Return of principal or capital;

(2)  Accounts receivable;

(3)  Benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program; or

(4)  Payments for foster care of a child.  (Tex. Fam. Code 154.062)

Texas Child Support law also allows for the following deductions from income prior to calculating child support:

(1)  Social security taxes;

(2)  Federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;

(3)  State income tax;

(4)  Union dues;

(5)  Expenses for the cost of health insurance (dental insurance as of Sept. 1, 2018) or cash medical support for the obligor’s child ordered by the court under Section 154.182; and

(6)  If the obligor does not pay social security taxes, non-discretionary retirement plan contributions.

Once the net income is calculated, the appropriate percentage is applied, depending on the number of children, which will give you the monthly amount of support to be paid.

What happens if you are Unemployed?

Texas law presumes people are at least working 40 hours per week at Federal Minimum Wage.  Evidence of actual income must be presented to the court in order to rebut this presumption.  The presumption does not apply if a party is in jail for more than 90 days.

Can I quit my Job or reduce my Income?

You can always quit your job but it likely will not help you with reducing your monthly child support amount.  Texas law specifically authorizes the court to apply potential income to your monthly child support calculation if it finds a person voluntarily quit their employment or is purposefully making less money than they are able to.  Mathematically it does not make sense to reduce your income to avoid support.  If your child support is 20 percent of your net monthly income, are you willing to sacrifice the other 80 percent to pay less support?  It doesn’t make sense.

The above is a brief overview of Texas child support law regarding child support and income.  Contact your Houston Child Support Lawyer at The Rudisel Law Firm, P.C. for a complimentary consultation.

Connect with Shawn M. Rudisel, on Google+ at +Shawn Rudisel

A Child Born During the Marriage but Not of the Marriage: Divorce and Paternity

A Child Born During the Marriage but Not of the Marriage: Divorce and Paternity

What does divorce and paternity have in common? When a child is born during a marriage Texas law presumes the husband is the father of that child. See Texas Family Code section 160.204(a). Often times, clients file for a divorce and must deal with a child born during the marriage to a man who is not the husband.  Because the husband is presumed to be the child’s father under the law, the biological father must be legally adjudicated to be the child’s parent or the husband will remain the child’s legal father for all purposes.  The law does allow a man to submit to genetic testing to deny paternity but if the actual father is known, he will need to be addressed.  All of this must be done during the divorce as children issues are required to be incorporated  within the divorce action.  See Texas Family Code section 6.406.

divorce and paternity in Texas
Houston Divorce and Paternity Lawyers

Classifications of Fathers

There are four classifications of fathers in Texas:

(1) Adjudicated Father – a father who has been legally recognized as a child’s father by a court.

(2) Presumed Father – a father who meets the requirements under section 160.204 of the Texas Family Code;

(3) Acknowledged Father – a man who has properly signed and filed an acknowledgment of paternity.

(4) Alleged Father – a man who is alleged to be the biological father of a child but who does not meet the criteria set forth above.

When a child is born during a marriage that is not the husband’s, the husband is the ‘presumed’ father; the actual father is the ‘alleged father’.  If the husband signed an acknowledgment of paternity when the child was born he is the ‘acknowledged father’. Once the proper steps have been taken, the ‘alleged father’ will become the ‘adjudicated father’ and the parent-child relationship will then be established between the father and child for all purposes.

Adjudicating the Father               

Texas law will legally recognize a father who signs an acknowledgement of paternity, admits paternity in open court, or is proven to be the father by genetic testing.

An alleged father admitting to paternity in open court or who executes and acknowledgement of paternity will not be sufficient in the case of a divorce because the husband is a ‘presumed’ father or in some cases an ‘acknowledged’ father.  In the scenario stated above, genetic testing is required in order to adjudicate the biological father of the child. See section 160.631 of the Texas Family Code.  The lawyer will need to add the biological father to the divorce suit as an interested party.  Once that party is served and joined to the suit, a request for genetic testing is filed. The court will then order either the ‘presumed’ or ‘acknowledged” father and the ‘alleged’ father to submit to genetic testing along with the child. Once the testing is completed, the results are submitted to the court for findings.

In my decade of litigating divorce matters, judges have also required the filing of an acknowledgment of paternity along with the husband’s denial.  Although not required by law and somewhat redundant, taking the additional step to satisfy the court will ultimately speed up the process of the divorce.

Things to Think About

 If you are going through a divorce and find yourself in the situation described in this article, you will need to be prepared to provide the alleged father’s information and expect that your divorce will take longer than the average.  If you are a family law practitioner you will need to be very careful and file the appropriate pleading to expedite the divorce along with a proper adjudication.

Most genetic testing in Houston and surrounding areas is performed by National Screening Center located in downtown Houston.

Here at The Rudisel Law Firm, P.C., we can assist you with divorce and paternity issues related to the this article.  Our attorneys have the knowledge and experience to tackle these tough issues.  Contact our Houston divorce lawyers here at The Rudisel Law. P.C. if you feel a change has occurred since your divorce was finalized that warrants a modification.

Shawn M. Rudisel is a Houston based divorce attorney, focusing exclusively on family law issues. Connect with Shawn M. Rudisel, on Google+ at +Shawn Rudisel

Visitation and Contempt- Do your part.

People often contact my office when a parent has failed to allow them to exercise their court-ordered visitation.  Failing to allow a parent to exercise court-ordered visitation can result in an enforcement action being filed against the non-compliant party.  If a court finds that a party willfully violated a court order, that party can be held in contempt, fined and ultimately sent to jail.  Although it seems simple enough (violate a court order and be punished), the complaining parent often times has not done their part in following the order.  Contempt actions are criminal in nature and the violations alleged must be precise in order to be successful.

In order for a parent to be held in contempt for denying access to a child, the complaining parent must follow the order and make an attempt to retrieve the child. For example, if the order says a parent is entitled to visitation on the 1st, 3rd and 5th weekend of the month at 6:00 p.m., that parent must attempt to pick up the child, at that time and on those dates.  If the order says the parent shall pick up the child at a specific address, that parent must appear at that address. Many times, a parent will receive a text or other communication letting them know the child will not be available.  That parent then fails to follow the order and attempt to pick up the child; the thought being “why show up if I know the child is not going to be there”?

The answer is, “show up so you can document the violation and address it in court if necessary”.  A contempt action must show that the complaining party attempted to exercise visitation at the date, time and place specified in the order.  If any one of those components are missing, the enforcement action will fail.  The exercising parent has a right to exercise visitation and the other parent has a duty to release the child in accordance with the order.  The other parent cannot violate an order by failing to release a child if the exercising parent does not show up to take possession of the child.

It is always better to attempt resolution to these issues prior to filing a contempt action however, if all else fails, hire an attorney to properly represent you in an enforcement action.

This above is a quick look at visitation and contempt in Texas and is not meant as legal advice.  This area of family law is very complex .  If you have question regarding the topic above, contact your Houston divorce lawyer, Shawn M. Rudisel,  for a complimentary consultation today.

Connect with me on Google+ at +Shawn Rudisel

 

Child Support, Medical Support and now Dental Support in 2018

Under current Texas law, the Family Code requires that the non-custodial parent pay child support to the custodial parent.   It is presumed to be in the best interest of the child that the obligor (parent responsible for paying support) pay child support in an amount determined by the guidelines set under Chapter 154 of the Texas Family Code.  Click here for more information about the child support guidelines.

Medical Support

The Code also requires that the court order a parent to provide medical coverage at a reasonable cost for the child (Tex. Fam. Code 154.181).  The cost of the medical insurance premium for the child, among other things, are deducted from the obligor’s gross monthly to compute a net monthly income of which the guidelines are applied.  The Code defines “reasonable cost” as no more than nine percent of the obligor’s annual income.

Dental Support

Effective September 1, 2018, courts will begin ordering the obligor to cover dental insurance at a reasonable cost for children as well.  The cost of dental premiums will also be deducted from the obligor’s gross monthly resources to compute child support. The Code defines “reasonable cost” for dental coverage as no more than 1.5 percent of an obligor’s annual resources.  In short, the obligor will now pay medical support and dental support in addition to child support beginning next year.

If you are facing the possibility of paying support, contact your Houston Divorce lawyer at The Rudisel Law Firm, P.C.  We can calculate your potential support amount or review a support order put in place previously.

Connect with me on Google+ at +Shawn Rudise

Divorce Jurisdiction in Texas- Where to File Your Suit

When filing a divorce, the first question is usually, “Where do I file”?  Please read the outline below for a basic review of venue and divorce jurisdiction in Texas.

Divorce Jurisdiction: Residency Requirements in Texasdivorce jurisdiction

A suit for divorce may be filed in Texas so long as at least one of the spouses have lived in Texas for at least 6 months and has lived in the county of filing for at least 90 days (Tex Fam. Code, Section 6.301).  Only one party to the suit must meet this requirement.

Example:  Husband and wife separate.   Husband remains in Harris County, Texas and wife moves out of state.  Wife decides to file for divorce one year later.  Wife may file in her state of residence, assuming she meets that state’s requirements, or she can file in Texas because husband has been domiciled in Texas for six months and has been a resident of Harris County for 90 days (Tex. Fam. Code, Section 6.302).

Divorce Jurisdiction: Personal Jurisdiction

Now lets assume under the example above that husband wants to file for the divorce in Texas.  He may do so but he must have “personal jurisdiction” over the wife.  Personal jurisdiction is the court’s power over a party to a lawsuit.  Husband would have to show the court that 1.) Texas is the last marital resident of the spouses and that the suit for divorce was filed within 2 years of the spouses separation or 2.) there is a constitutional basis for jurisdiction under State or Federal law (Tex. Fam. Code, Section 6.305).  The second prong is commonly proven by demonstrating to the court that the out of state spouse has meaningful ties to the state i.e., has worked in Texas, owns property in Texas, is served in Texas or has other “minimum contacts” with the state.

Children Must Be Included

When there are children involved in a divorce and no other court has rendered an order regarding the children, they must be included in the divorce suit (Tex. Fam. Code, Section 6.406) for proper divorce jurisdiction.  Often times, separated parents file a suit for child support or visitation instead of divorce.  When this happens, a court renders and order of support, thus becoming the court of continuing and exclusive jurisdiction over the children.  If the spouses file for divorce at a later time, they cannot include the children in the suit for purposes of changing the terms of the prior child support order.

Example:  Parents separate and file a child support case in Harris County, Texas.  The child support case is finalized ordering supports payments and visitation.  A year later, the spouses file for divorce.  They will include the children in the divorce but will not be able to change the provisions of the child support order.  In order to alter the child support order, they would need to file a separate law suit to modify that order.

If one spouse files a suit concerning the child and the other spouse files for a divorce in a different county, both suits must be joined with the divorce court having jurisdiction (Tex. Fam. Code, Sections 6.406 and 6.407).

Example: Parents separate and wife moves to San Antonio.  She later files for child support in Bexar County, Texas.  Husband learns of the suit and decides to file for divorce in Harris County, Texas.  Even though wife filed first, husband’s suit will be dominant and wife’s suit must move to Harris County.

Divorce Jurisdiction: Subject Matter Jurisdiction

Subject matter jurisdiction is the court’s ability to hear a certain type of case or subject matter.  In order for the court to render orders regarding children, the court must have subject matter jurisdiction over the children.  A Texas court can make orders regarding children if:

(1) Texas is the home state of the child when the divorce is filed or was the home state of the child within six months of filing for divorce and the child no longer lives in Texas but one of the parents still reside in Texas.

(2) No other state as acquired jurisdiction as described by (1) above or a court of another state has declined jurisdiction because Texas is a more appropriate forum, and:

     (A) the child and at least one parent have significant connections with Texas; and

     (B) there is substantial evidence available in Texas regarding the child.

(3) all courts having jurisdiction  (1) or (2) above have declined to exercise jurisdiction on the ground that a Texas court is a more appropriate forum.

(4) no other court has jurisdiction under (1), (2), or (3) above (Tex. Fam. Code, 152.201).

Example:  Spouses marry in Georgia and have a child.   Upon separation, husband moves to Texas.   After six months in the state and 90 days in Harris County, husband files for divorce against wife. Husband will be able to divorce in Texas (assuming the court has personal jurisdiction over the wife) however Texas will not have subject matter jurisdiction over the child.  In short, they can divorce in Texas but cannot render orders regarding the child.

This above is a quick look at venue and jurisdiction in Texas and is not meant as legal advice.  This area of family law is very complex and has some very important federal law implications.  If you have question regarding the topic above, contact your Houston divorce lawyer, Shawn M. Rudisel,  for a complimentary consultation today.

Connect with me on Google+ at +Shawn Rudisel

Houston child support attorney

Houston Child Support Lawyer: Above the Guidelines

As mentioned in a previous post, the Texas Family Code establishes guidelines for the courts to follow when ordering child support.  The guidelines translate to a percentage of an obligor’s net monthly income, which is also explained in that post. (Click here for the child support article) Client’s often ask if the guideline maximum amount of child support per month ($1,710.00 for one child, $2,137.50 for two and so one) is absolute.  As a Houston child support lawyer, I have to tell them, no.  Though not common, a court does have discretion to deviate from the guidelines if the evidence indicates that the guideline amount is not in the child’s best interest and it warrants a variance from the guidelines. The courts can look at the age and needs of the child, the financials of both parents, day care costs, etc. when determining the amount of support an obligor should pay.

Contact a Houston Child Support Lawyer today.  Call The Rudisel Law Firm, P.C. for a confidential and complimentary consultation.
Connect with me on Google+ at +Shawn Rudisel

Houston divorce mediation and why it is better than trial.

 

Mediation is a formal settlement conference in which parties do a lawsuit may settle some or all of their issues, negating the need for further litigation. Mediation is especially useful in a case because of the wide range of issues often presented. Once parties reach an agreement in mediation, the signed agreement or “mediated settlement agreement” becomes binding on the parties. That means, either party may present the agreement to the court for judgement. I have outlined a few benefits to mediation, as opposed to litigation below:

1. Parties can avoid costly litigation:

Divorce is expensive and the more time your divorce lawyer spends in court, the more you will be billed. With divorce attorney’s fees ranging from $250.00 per hour and up, and trial taking anywhere from a few hours to a few days, it is easy to understand why litigation costs so much money. Mediation on the other hand generally lasts a few hours. By attending mediation, the parties have a chance to sit down in a calm environment and discuss the issues with relatively no pressure. Often, a good mediator, along with the help of the attorneys on both sides, can craft an agreement that will benefit both sides.

2. Custom agreements can be made:

Courts follow the Texas Family Code when ruling on cases before them. The Code gives the court guidance based on state law from which the court has limited power to deviate from. For instance, the Code allows parents to agree that no person shall be the “primary” parent but rather the child’s residence remain within a geographical area. This can be achieved by agreement only and the Court cannot implement the provision on its own. Many people are not aware that this option exists in a Texas divorce and once in trial, it is too late. By mediating the issues, parents can discuss these options and make decisions that otherwise may not be available.

3. You case can be resolved much faster:

A court can divorce parties on the 61st day after filing a divorce action. If a case is set for trial, the process can take anywhere from six months to a few years to be heard by the court. Mediation can be quickly schedule by the attorneys at anytime and often times prior to the mandatory 61 day period. Courts recognize the benefits of quickly resolving a case and often make mediation a requirement.

Contact a Houston divorce lawyer today to discuss Houston divorce mediation and its benefits in a Houston divorce case.

Connect with me on Google+ at +Shawn Rudisel

Houston Child Support Lawyer: Child Support in Texas

Child support in Texas follows guidelines set out in the Texas Family Code, Chapter 154.  The guidelines assign percentages of net income based on the number of children the obligor (person responsible for paying child support) has a duty to support.  The child support guidelines are applied to only the first $8,550 of net income per month.  Read more below from Shawn M. Rudisel, your Houston child support lawyer.

Continue reading “Houston Child Support Lawyer: Child Support in Texas”