Child support is one of the most heavily litigated issues in all of family law. To increase or decrease payments there are specific requirements that must be met to modify a previous child support order. Per Tex. Fam. Code § 156.401 the requirements necessary to modify a prior child support order are:
- The circumstances of the child or an affected party have materially and substantially changed; or
- Three years have elapsed since the order was entered or last modified, and the amount of child support differs from the statutory guidelines by either 20% or $100.00.
The second requirement is self-explanatory. The three-year limitation to file for another modification is for the benefits of the Courts. If there was no three-year waiting period to refill, then every conservator would constantly attempt to modify child support, thus creating endless litigation for clogging the Courts’ dockets.
The first requirement needs more explanation. A Material and Substantial change in the circumstances of the child or an affected party must be clearly shown at trial. Many Courts are meticulous in making the determination of what a Material and Substantial change is regarding the child and the affected party to insure this requirement is not abused for excessive litigation.
To prove a Substantial and Material change in circumstances, a conservator must show evidence at the final hearing of:
- The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
- The financial needs/expenses at the time of the request for the modification.
If evidence of financial needs/expenses are not submitted and proved regarding both (1) the prior divorce/modification and (2) the recent modification, then no Substantial and Material change can be adequately proved. Further, if the request for modification of child support is predicated solely on one conservator’s increase in earning capacity, absent other compelling evidence, the change in circumstances is not Substantial and Material. Interest of L.R., 416 S.W.3d 675, (Tex. App.—Houston [14 Dist.] 2013, pet. denied.)
If one conservator decides to file a modification of child support within three years just because the other conservative received a better job, it may be dismissed. At the end of the day a Court has broad discretion on determining what is Substantial and Material and may allow the case to be heard and give an unfavourable ruling, but if that occurs you will have the ability to appeal the judgment and request attorney’s fees. It is important to know in any family law case the Judge has extremely broad discretion and interprets case law in a way that he deems fit using the Best Interest Test.
If you are a conservator that meet these requirements above and wish to increase or decrease the child support obligation, be sure to hire an experienced attorney. Nacol Law Firm will always fight for you and your children’s best interest.
Julian Nacol, Attorney
Nacol Law Firm, PC
Call (972) 690-3333
A baby born to unwed parents does not have a legal father under Texas Law. In order to exercise your rights as a father, including visitation and possession, a man must be a child’s legal father. A common misconception is that if your name is on the birth certificate you are a legal father. If you are not married to the mother, simply putting your name on the birth certificate of your child is not enough to make you the “legal” father and you cannot enforce your rights to the child.
The process to become a legal father is a simple one. If the biological father and the mother agree, they can both sign an “Acknowledgement of Paternity” which is filed with the Bureau of Vital Statistics. Once paternity has been established, your name will be placed on the birth certificate, and the Court may order you to pay child support and grant you visitation or possession rights with your child.
TEXAS FAMILY LAW §160.301. ACKNOWLEDGEMENT OF PATERNITY
The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgement of paternity with the intent to establish the man’s paternity.
TEXAS FAMILY LAW §160.302. EXECUTION OF ACKNOWLEDGEMENT OF PATERNITY
An acknowledgement of paternity must:
Be in a record;
Be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;
State that the child whose paternity is being acknowledged:
Does not have a presumed father or has a presumed father whose full name is stated;
Does not have another acknowledged or adjudicated father.
State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing;
State that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgement is permitted only under limited circumstances.
An acknowledgement of paternity is void if it:
States that another man is a presumed father of the child, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the bureau of vital statistics;
States that another man is an acknowledged or adjudicated father of the child; or
Falsely denies the existence of a presumed, acknowledged, or adjudicated father of the child.
- A presumed father may sign or otherwise authenticate an acknowledgement of paternity.
With the U.S. marriage rate at an all-time low, 51% of adults were married in 2011 (US Census Bureau), only 29% of all divorced adults say they would marry again with women definitely in the negative on remarriage. Americans are also not in a hurry to marry. The median age of first marriages is a record high of 29 for men and 27 for women (US Census Bureau).
So what about the 48% of adults currently married? A new divorce report by the Slater and Gordon Law Firm in England who surveyed 1000 divorcees has reflected some very interesting findings:
The average person spends about 2 years thinking about getting a divorce before they file.
During this time the average person spent 18 months really trying to fix their marriage and working to try to save the marriage.
53% discussed divorce with someone besides their partner before filing.
36% spoke to an attorney before deciding to file a divorce
76% tried to fix their marriage problems before deciding on a divorce
53% said their split was amicable and 45% said they are still friends
31% have no contact with their previous spouse at all!
How would you fit into this survey?
The Nacol Law Firm PC has expressed 8 of the top causes of Divorce!
Lack of communication: A successful relationship constantly keeps in touch! When there is a loss of open ended communication on all issues affecting the marriage, families may fall apart quickly. Share your feelings, tell your partner what is happening, and listen to your partner.
Money and Finances: If there are constant money problems or major disagreements on financial issues, you may have a serious martial problem. A team effort at all times bodes for a better marriage.
Alcohol and Drug Addiction: Addiction is one of the most damaging and challenging problems spouses will ever face in a marriage. Because additive behavior touches everyone in a family most marriages are severely damaged years before a decision is reached to end the marriage.
Domestic Violence/ Intimate Partner Violence: Family Violence is the willful intimidation, physical and/or sexual assault & battery or serious mental and verbal abuse perpetrated by one intimate partner against another. The frequency and severity of domestic violence varies dramatically and may include physical or sexual violence, threats, and emotional abuse. The violence is often accompanied by irrational and controlling behavior and is intended to result in total dominance and control over the other spouse /intimate partner or other family members.
Trust and Infidelity Issues: Do you truly trust your spouse? Are their jealousy issues that occur with one spouse when other people are involved in your lives? A successful marriage is very difficult absent trust. If you do not trust your spouse the marriage is vulnerable!
Spouse cannot understand or fulfill your needs and desires: this includes personal and sexual needs and common courtesies to each other. We all have different needs and desires. If you or your partner won’t acknowledge each other’s needs and try to accommodate, the marriage is vulnerable!
Inability to resolve conflict: Often couples have very serious trust issues with each other and cannot get past the needs of one vs the needs of the family. Smart couples will seek out a 3rd party “referee” to help resolve these differences before the marriage is irretrievable.
Children: Enough said! The married couple must decide on a united front in child rearing and discipline. The child cannot be in charge or subject to multiple contradictory directives!
Deciding to divorce is a very sad and financially devastating family decision. If you and your spouse are still at the point to possibly change things for the better, explore all other opportunities! There was a reason for the initial attraction and your family will love you for it. Otherwise, consult a qualified legal professional who can help guide you through this trying period.
Now is the time to start working on your Holiday 2014 Schedule for visitation with your children during this wonderful time of year! We would suggest that you review your individual order to see if you have specific provisions concerning visitation. Because many families have specific situations that occur during this special time, this visitation time is the most modified area in the Standard Possession Order. The Holiday schedule will always override the Thursday or Weekend schedules.
Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for the Holidays.
- 153.314. Holiday Possession Unaffected by Distance Parents Reside Apart.
The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:
Texas Family Law Code’s Standard Visitation Guidelines for Christmas Break:
(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;
Texas Family Law Code’s Standard Visitation Guidelines for Thanksgiving:
(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;
Texas Family Law Code’s Standard Visitation Guidelines for Child’s Birthday:
(4) the parent not otherwise entitled under this standard order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;
Texas Family Law Code’s Standard Visitation Guidelines for Father’s Day:
(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;
Texas Family Law Code’s Standard Visitation Guidelines for Mother’s Day:
(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.
Texas child visitation orders may differ from the norm to accommodate family situations so you should always check your decree first! If in doubt about your holiday visitation time, contact a family law attorney who can help you to make sure nothing happens to affect this special season with your children. ‘Tis the Season To Be Jolly’!
In Texas, Prenuptial Agreements are becoming a very important tool for prospective spouses in the event of future marital problems. With the rise in divorce rates and more boomer/senior remarriages, many people with assets are turning to a marital contract to sidestep a potentially difficult and very expense divorce.
A prenuptial agreement allows prospective spouses to, legally in advance, specifically define rights and obligations to each other and further allows spouses to decide their future marital property rights with relativity minimal judicial actions. A prenuptial agreement, in Texas, can cover any matter except:
Violate public policy or a statute imposing criminal penalties
Adversely affect a child’s right to support
Defraud a creditor
Texas Family Code 4.003(a)(8), (b),4.106(a).
Among the permissible provisions that parties can list in a prenuptial agreement are the following:
Rights and obligations of any interest, present or future, legal or equitable, vested or contingent, in real or personal property.
Right to manage, control and dispose, by agreement, property upon separation of the married parties, dissolution of the marriage, death of either party, or other agreed event.
Modify or eliminate spousal support.
Specific matters related to prospective spouses, including personal rights and obligations that are not in violation of state laws.
Choice of a state or country law that will govern the prenuptial agreement.
Creation of a Will or Trust.
Disposing of the Estate upon the death of one of the spouses. Also ownership rights and disposition of benefits from a life insurance policy upon the death.
Waive one party’s right to occupy the family homestead after the other party dies.