Fathers Rights Blogs

Alimony Expands in Texas

Spousal support law continues to evolve in Texas; but like the hot, dry summer days which seem to creep along, the process moves slowly.

Governor Rick Perry signed HB 901 on June 17, 2011. The law is effective for Texas divorce cases filed on or after September 1, 2011. In 1995, Texas was the 50th state to pass a law providing for spousal support and has been one of the most restrictive in the nation.

The new law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.

Major changes to the spousal support law are:

1. The maximum amount of spousal support that courts may award increases from $2,500 to $5,000.00 per month, although still limited to 20 percent of the payer’s average gross monthly income.

2.  The duration of spousal support is extended from a maximum of 3 years to a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.

3. The law clarifies that if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.

4. The law also clarifies that a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.

In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”, AND one of the following:

(1)  The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;

(2)  The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;

(3)  The recipient is the custodian of a child of the marriage of any age who required substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs; OR

(4)   The person ordered to pay support must have been convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.

Under the previous law, under most circumstances, the court could only order maintenance for a maximum of three years, regardless of the length of the marriage. Under the new law, the court can order maintenance to continue for:

(1)  5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;

(2)  5 years if the parties were married more than 10 years, but less than 20 years.

(3)  7 years if the parties were married more than 20 years, but less than 30 years;

(4)  10 years if the parties were married for more than 30 years.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.

However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.

If you are contemplating dissolving your marriage and have questions concerning your financial future, seek competent legal counsel to help you determine whether you could be eligible for spousal support under the expanded provisions of the new law.

By Nacol Law Firm | Stay At Home Dads
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Hers, His, Ours: Marriage – Divorce – Remarriage

Today’s family unit is often in a state of flux. After a divorce, most people remarry and often there are children involved. In the new, blended family, one or both spouses may be paying child support. Newly-born or adopted children may also enter into the picture.

Sometimes, the cycle continues: marriage, divorce, remarriage, divorce.

Now, mom or dad has children in multiple households.

Do the additional children change the amount of child support to be paid? Not without a court order.

In Texas, child support may be reduced when an obligor (person paying child support) has additional children that the obligor is legally required to support. These children may be new biological children, or legally adopted children. Generally, Texas courts do not consider stepchildren as a factor in reducing child support.

Texas courts follow statutory guidelines in determining amount of child support. Many people are familiar with the following basic formula: 20% of net income for one child; 25% of net income for two children; 30% of net income for three children; and so on.

However, under the legal guidelines, the court also considers whether the obligor has a legal obligation to support other children, either under another child support order or because the obligor has legal custody of the child. In cases involving the children in multiple households, the court may consult the following chart from Section 154.129 of the Texas Family Code:

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

 

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

5 children 40% of Obligor’s Net Resources

6+ children Not less than the amount for 5 children

 

Depending on the number of other children an obligor has a duty to support, the percentage of child support may be lower. For example, if the obligor was previously married and has 1 child to support in the previous marriage, the amount of support paid for one child before the court decreases to 17.50 percent. See the chart below.

 

Multiple Family Adjusted Guidelines

(% of Net Resources)

Net Monthly Resources X Percentage Below = Monthly Child Support Obligation

 

 

Number of other children for whom the obligor has a duty of support

Number of Children Before the Court

 

1

2

3

4

5

6

7

0

20.00

25.00

30.00

35.00

40.00

40.00

40.00

1

17.50

22.50

27.38

32.20

37.33

37.71

38.00

2

16.00

20.63

25.20

30.33

35.43

36.00

36.44

3

14.75

19.00

24.00

29.00

34.00

34.67

35.20

4

13.60

18.33

23.14

28.00

32.89

33.60

34.18

5

13.33

17.86

22.50

27.22

32.00

32.73

33.33

6

13.14

17.50

22.00

26.60

31.27

32.00

32.62

7

13.00

17.22

21.60

26.09

30.67

31.38

32.00

The court may also consider additional factors listed in Section 154.123 of the Texas Family Code.

In order to benefit from these factors, the obligor must present evidence that rebuts the presumption that the statutory guidelines is in the best interest of the children. When a person has children in more than one household, determining child support can be complicated. A wise person will seek the professional help of an experienced family law attorney.

By Nacol Law Firm | Child Support For Fathers
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Texas SB785: Termination of parent-child relationship due to mistaken Paternity

Texas Senate Bill 785- Termination of the parent-child relationship and duty to pay child support in circumstances involving mistaken paternity.

After a battle spanning three legislative sessions over a six- year period, Texas SB785 became law effective May 12, 2011.

The new law addresses this situation:  a man signs an acknowledgment of paternity for a child or was adjudicated to be the father of the child in a previous proceeding without genetic testing. Subsequently, the man finds evidence of misrepresentations concerning whether he is really the child’s genetic father.

The “father” must file a petition to terminate no later than the first anniversary of the date he becomes aware of the facts that indicate he is not the child’s genetic father.

A court hearing will be held to determine whether the petitioner and child will submit to genetic testing to determine the parent-child relationship.

If the result of genetic testing excludes the petitioner as the child’s genetic father, the court shall render an order terminating the parent-child relationship.

The new court order ends the petitioner’s obligation for future support of the child effective on the date the order is rendered.  This new order, however, does not affect the petitioner’s obligations for child support or any child support arrearages accrued before the date that the new order was rendered.

The petitioner may also request the court order periods of possession or access to the child following termination of the parent-child relationship. The court may order possession or access to the child only if it determines that denial of possession or access to the child would impair the child’s physical health or emotional well-being.

The changes in law made by this Act apply to any order for child support regardless of when the child support order was rendered.

Texas has finally made it a law that a misrepresentation of the truth cannot hold a man to a false parental obligation for 18 years!  

By Nacol Law Firm | Paternity
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Facts About Divorce in Texas (How Long Will It Take to Get Divorced?)

To file for a divorce in Texas, you must be a Texas Resident for 6 months, and you must have lived within the county you plan to file in for at least 90 days immediately prior to filing of your divorce petition.  Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.

Texas does not recognize legal separations. 

It is possible to get a divorce even though the other party does not want the divorce to take place.  Texas is a “no fault divorce state.” “No fault” means that one spouse does not have to prove the other spouse has done anything wrong in order to obtain a divorce. You cannot be held to a marriage because your spouse does not want to sign or refuses to participate in the divorce process.  The court will enter divorce orders even if the other party refuses to sign them.

Texas requires a minimum 60 day waiting period before any divorce can be finalized. The 60 day period begins to run from the time the Original Petition for Divorce is actually filed with the court.  In other words, the shortest time it will take to finalize a divorced in Texas is 61 days.  On occasion, in domestic violence cases, there is an exception to the 60 day rule.  If the parties are in agreement, a divorce proceeding can be finalized immediately following the sixty-day waiting period.  On average, however, the time period is more likely to run 90 to 120 days in an uncontested divorce due to the crowding of court dockets and the time necessary for counsel to draft necessary legal documents and obtain the agreement of both parties regarding the wording of the final documents.  If the parties are not in agreement, the time necessary to finalize the divorce will depend on the conduct of both parties and their attorneys, the court’s schedule, the matters in controversy and the complexity of the contested issues. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are deeply in opposition to an agreement on some or all of the core issues may take anywhere from several months to several years to complete.

As to the division of marital assets, Texas is a community property state.  For more information on community and separate property, see our blog, Divorce:  What is separate property and what is community property.

It is important to remember that, although the statutory waiting period to finalize a divorced is 60 days, it is more likely than not that your divorce will “not” be finalized on the 61st day following the filing of your petition for divorce.

By Nacol Law Firm | Filing for a Divorce
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My Divorce is Costing Me What? Why is This Divorce Costing So Much?

Financial costs of divorce may often be significant. Divorce lawyers, like any other professionals, are paid according to their skill, training and experience. In Texas, one can expect to pay an advance deposit from $2,500 to $25,000 depending on the complexity of the legal issues involved, as well as the quality and expertise of counsel selected. In addition to the legal fees, some cases require “expert testimony” regarding the value of certain significant assets, i.e. business interests, the marital residence, rental properties, art work and more.

One reason most experienced divorce lawyers want a substantial retainer is that once an attorney files an appearance, they are charged with duties in their role as an officer of the court. Under law and court procedure an attorney must make appearances and file specific legal documents with little or no discretion depending on the opponent’s conduct. Initial filings and other documents may appear deceptively simple, but can challenge even the most patient person. The devil truly is in the details, especially where haggling parties look for disagreement. Even minor issues can blow up, and evolve into unnecessary expense.

Divorces involve complicated issues and many times it is necessary to have a temporary hearing sooner rather than later to sort out legal and monetary issues for the pendency of the divorce proceeding.  Who will continue living in the home?  Who will make mortgage payments?  Who will make payments on automobiles?   Who will pay certain credit cards?  Who will pay utilities?  Who will maintain the property?  Who will be responsible for the debts?  All questions must be carefully considered and weighed out.

In divorces with child related issues there are more complicated factors to be considered.  Who will receive primary custody of the children? Where will the children live and how often?  What school will the children attend?  How will their education be paid?  How much child support will be paid? What visitation schedule will work for the parents and the children?  How, when and where will the child exchange take place?  Which parent will maintain health insurance?  Will the child’s residence be restricted to a particular geographical area? 

In all cases, marital assets must be divided; and even if there are few marital assets and only marital debt, there remains much to fight about, or resolve.

The state of Texas makes it unethical for lawyers to take a divorce action on a “contingency fee” basis. That leaves only two ways for a divorce lawyer to be paid: by the hour, which is the most common; or on a flat fee basis. Hourly fees in the Dallas/Ft. Worth metroplex area for a divorce lawyer range anywhere from $250 per hour to $550 per hour and up, depending on your choice.

In the cases where one party has a distinct financial advantage, the economically disadvantaged party can apply for temporary attorney fees and costs to be paid immediately by the party in control of the resources provided a fund is available for such use. In a proper case, such temporary motions often are granted by the trial court in order to level the playing field.

After every hearing, whether it concerns child related issues, marital assets, debts of the parties, or property owned by the parties, an order must be drawn by counsel based on either the court’s decision or the agreement of the parties.  Many times these orders involve the drafting of further legal documents such as Deeds of Trust, Deeds of Trust to Secure Assumption; Special Warranty Deeds, and Real Estate Lien Notes relating to the parties home; Powers of Attorney to transfer title of automobiles; Wage Withholding Orders for the withholding of child support; and Austin forms (required by the Bureau of Vital Statistics in every divorce action).  Often a Qualified Domestic Relations Order (QDRO) is necessary to divide retirement plans, accounts, pensions and the like.  These are just a few of the necessary documents required in some divorce actions.

Bottom line is: the less the parties fight the less they will pay. Lingering animosities do not expedite resolution. Courts do not want to hear “he said/she said.” Whether that is right or wrong is for a social commentary, not a legal guide. That is why there are ‘irretrievable breakdown’ divorces.

Other factors that affect the cost of divorce are: whether the divorce is adversarial; how much you pay hourly for your legal counsel; if you and your spouse are battling over child custody issues involving children; the number of marital assets and debts you have to deal with; and whether your spouse’s attorney is unnecessarily aggressive and adversarial, without purpose.

When selecting a divorce lawyer know what you are looking for.  Your counsel should be a person in whom you can put your total trust — after all your emotional health, the emotional health of your child(ren) and potentially the emotional health of your grandchildren could be at issue. The way to keep divorce costs under control is to select the right lawyer and to force your intellect to overrule your emotions when making decisions.

By Nacol Law Firm | Property and Asset Division
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Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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