For Richer or Poorer, Hire Expert Help to Protect Your Interests in Your Texas Divorce
For better or worse,
For richer or poorer,
Until . . . a divorce is filed.
When there are several zeros at the end of your bank balance, as in $500,000.00; $5,000,000.00 or more, the financial aspects of divorce can be high risk.
Texas divorce laws are the same regarding the division of property whether the money and assets in a marital estate are a lot or a little; however, the courts will inevitably encounter and address more complex issues regarding the property division in a divorce case with substantial financial and business assets.
Texas is a community property state. What does that mean, as a practical matter, when divorce occurs?
1. The law presumes that all property owned by either spouse is community property, meaning that both spouses own an undivided one-half interest.
2. The court cannot divest a spouse of his or her separate property in divorce.
In a very simple explanation: Texas community property is everything earned or acquired during the marriage other than inheritances or gifts. Your paycheck is community property, your rental income is community property, the cars you purchase are community property, retirement funds accumulated during marriage are community property.
At the time of the divorce, the court will make a just and right division of the community property. “Just and right” does not mean 50/50. Often the courts will split the community property equally, but many factors may affect this division including:
1. The spouses’ earning abilities and education.
2. The spouses’ actual earnings.
3. Who has care and primary custody of the children.
4. The value of separate property owned by the spouses. If the wife inherited $3,000,000.00, should the husband be awarded more of the community property?
5. Fault in the break up of the marriage, especially if a cheating spouse spent substantial assets dating or cavorting with others.
6. The debts of the spouses.
7. Tax consequences.
The bigger the marital pocketbook, the bigger the risk to assets in play.
Texas Child Support and High Asset Divorces:
The court also has discretion in setting child support when the parents are wealthy. The Texas Family Code provides guidelines and the guidelines are presumably in the best interest of the child.
The law caps the Texas child support amount guidelines to a percentage of the first $9,200.00 of the paying parent’s earnings. However, the cap is not made of steel. The law is a guideline.
The court has the discretion to order child support in excess of the guidelines based on the children’s best interest which includes an examination of the proven needs of the children. In the case of children growing up in a high-income household, do not expect the court to necessarily limit its consideration to basic food and shelter. The court may consider many factors in setting child support, including the children’s current living standards, such as private education, nannies, medical issues, emotional issues, sports and other extracurricular activities and, in the rare case, a body guard.
When setting child support within a wealthy family undergoing divorce, the court has discretion, based on the evidence, to set order child support above the presumptive amount in the guidelines. The court’s determination is subjective and is reversed by higher courts only if the trial court “abused its discretion,” a high threshold indeed.
With so much at stake, you should hire an experienced family law attorney who can present your case clearly, and persuasively.
Child Support Modification in Texas – Done Within Three Years
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
Out of State Child Relocation and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
In today’s hectic pace, moving to another state for business, family demands, or pleasure is a very common occurrence. But what about the family that is separated by divorce or separation and share custody of their children? What happens to this family situation when Mom or Dad decides to take another job or wants to move to another state and take the children to or from the other? A Child Custody Relocation Case?
Sadly this happens frequently. Most Texas attorneys employ a geographic restriction in divorce decrees for couples who have children. These restrictions dictate that the Child and Custodial Parent must live within a school district, County of Domicile, or consecutive contingent counties near the non-custodial parent. But what happens if this restriction clause is not contained in the divorce decree or if Dad/Mom were never married?
Forty Nine States, including Texas have adopted the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA is a very helpful law since all states but one participate in the determination of the ”HOME STATE” and which jurisdiction will handle the family case. UCCJEA also helps to protect non-custodial Parents fighting for child custody out of state when their children have been moved to another state or over 100 miles away from them.
How does The State of Texas treat an initial Child Custody determination?
Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may consider custody issues if the Child:
*Has continually lived in the state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.
*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.
*Has an established over significant time relationships with people (family, relatives or teachers), ties, and attachments in the state
*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.
Most child custody relocation cases tried in Texas follow a predictable course:
- Allowing or not allowing the move.
- Order of psychological evaluations or social studies of family members
- Modification of custody and adjusting of child’s time spent with parents
- Adjusting child support
- Order of mediation to settle dispute
- Allocating transportation costs
- Order opposing parties to provide all information on child’s addresses and telephone number.
There is another important cause of action in Texas where the court will “take “EMERGENCY JURISDICTION’ over a case even though another state has the original jurisdiction. If the opposing party can prove that a legitimate emergency exists and Texas needs to assume the jurisdiction. These emergency situations could be abuse of the child, abandonment or cause neglect of the child, or any action that would put the child in immediate harm’s way.
The Nacol Law Firm P.C. @ www.nacollawfirm.com is committed to helping parents have the right to have frequent and continuing contact with their child at all times and encourage parents to co-share in the rights and duties of raising a stable, loving child. Many times, because of parental alienation or other personal factors, a child will be taken away from the non-custodial parent and this can cause some serious mental and behavior problems for the child which could follow her/him into a lifetime adult situation.
Sometimes you can settle, SOMETIMES YOU FIGHT FOR YOUR RIGHT! We can help!
Child Support: Gender Neutral Pro Rata Child Support Obligations
One of the most frequent inquiries we receive at The Nacol Law Firm is whether child support obligations are equally applied between Mothers and Fathers. When a parent is considering a divorce or a union break up with the child’s other parent, who pays for child support and medical/dental insurance for the child, for how long and according to what guidelines?
The State of Texas (Texas Family Code Ch 154) Sec. 154.001. SUPPORT OF CHILD. (a) The court may order “Either” or “Both” parents to support a child in the manner specified by the order: (1) until the child is 18 years of age or until graduation from high school, whichever occurs later; (2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law; (3) until the death of the child; or (4) if the child is disabled as defined in this chapter, for an indefinite period.
The State of Texas child support laws dictate that children are entitled to financial support from both parents. Texas establishes child support guidelines to determine how much an average child will need. The guidelines provide for a basic amount of support to the parent who receives it based on the other parent’s income and number of children to be supported. However, there may be special circumstances that justify the court’s deviation from the standard amount of child support. Extraordinary expenses can be taken into consideration, including medical expenses or high childcare costs and other specific exceptions.
The State of Texas also supports that a Father and Mother should have the relatively equal rights to the child and should share in the child’s care and support. What does that mean? If Mom or Dad each have standard access and possession 50% of the time, then the Father and Mother should pay guideline support for the care of the child. Yes, Father and Mother.
With a substantial rise of mothers paying child support in the United States, many women are reevaluating their situations, when they find out Dad will not be paying all expenses and child support and be prorated when raising the child 50% of the time. Today’s mothers are the primary breadwinners in four out of 10 U.S. families (Pew Research).
Texas statutes dictate specific Child Support guidelines and, like it or not, other than rare exceptions, neither parent can escape this obligation! Many mothers will plea that they cannot work because of their obligation to the care of the child or will under-employ to try to escape paying their rightful share of the child’s support. But in today’s world many parents either share 50/50 time with their child or father may be the primary custodial parent.
If the mother refuses to pay court-ordered child support, there may be several enforcement options. A contempt of court action can hold the mother civilly or criminally liable for not obeying the court’s mandate. If found guilty, the mother may be required to post a bond equal to the amount of child support in arrearages or may have to serve time in jail for contempt. Other actions include suspending the mother’s driver’s license or professional license, intercepting tax refunds or federal payments, denying passports, placing liens on property and reporting the debt to credit bureaus.
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
- 6+ children Not less than the amount for 5 children
(3/5/2019 FAMILY CODE CHAPTER 154. CHILD SUPPORT https://statutes.capitol.texas.gov/Docs/FA/htm/FA.154.htm 20/47)
For more information on Texas Child Support Guidelines, please go to the Texas Attorney General Child Support Website at: https://csapps.oag.texas.gov/monthly-child-support-calculator
Mark Nacol
Nacol Law Firm
Dallas TX
Parental Alienation Syndrome and the Impact on Children
Parental Alienation Syndrome is the systematic denigration by one parent with the intent of alienating the child against the rejected parent. In most cases, the purpose of the alienation is to gain custody of the child and exclude involvement by the rejected parent. In other cases the alienator wants the rejected parent out of the way to start a new life, or the aligned parent wants more of the marital money and assets than he/she is entitled to and uses the child as a pawn. The aligned parent hates the rejected parent and the children become false weapons. These are just a few reasons Parental Alienation occurs in domestic disputes.
Parental Alienation Syndrome is common because it is an effective though devious device for gaining custody of a child. Through systematic alienation, one parent may slowly brainwash a child against the other parent. The parent involved in such alienation behavior then may gain the misplaced loyalty of the child.
In a recent survey, one in five parents stated that their primary objective during the divorce was to make the experience as unpleasant as possible for the former spouse; despite the effects such attitudes and behavior have on the children.
Parental Alienation Syndrome is a form of emotional child abuse. Parents in hostile separations may suffer depression, anger and anxiety or aggression. The expression of these feelings results in withdrawing of love and communication which may extend to the children through the alienating parent. When the mother is the alienator, it is a mechanism employed to stop the father from having contact with his children; and can be described as the mother holding the children “hostages.” The children usually are afraid of the mother, frequently identify with the aggressor, and obey her as a means of survival. The child may also be instilled with false memories of the father, coached and/or brainwashed.
Studies show that Parental Alienation is experienced equally by both sexes. Adolescents (ages 9-15) are usually more affect than younger children. Children most affected tend to be those subjected to parents’ highly conflicted divorces or custody battles. A study by Fidler and Bala (2010) show increasing incidences and increased judicial findings of parent alienation in the US. 11-15% of all divorces involving children include parental alienation issues.
If the parental alienation has been successful and has influenced the child against the target parent, the observer will see symptoms of parental alienation syndrome. Many children appear healthy until asked about the target parent.
Warning signs of a Parental Alienation Syndrome Child:
- The child is a “parrot” of the aligned parent with the same delusional, irrational beliefs and consistently sides with this parent. Denys suggestions that their hatred for rejected parent is based on views and behavior of aligned parent.
- Idealization of aligned parent and wants to constantly be in the aligned parent presence.
- The child develops serious hatred for the rejected parent and rejects a relationship with the rejected parent without any legitimate justification. The child sees nothing “good” about the rejected parent and only wants to destroy the relationship.
- The child refuses to visit or spend time with the rejected parent, frequently faking fear.
- The child’s reasons for not wanting a relationship with the rejected parent are primarily based on what the aligned parent tells the child. Accusation against rejected parent too adult-like for the child’s age.
- The child feels no guilt about his/her behavior toward the rejected parent and will not forgive past indiscretions.
- The child’s hatred extends to the rejected parent’s extended family, friends, partner, or Idealization of aligned parent aligned parent without any guilt or remorse.
- Ignores/rejects the rejected parent in the presence of the aligned parent.
- Children who live in alienated family situations are usually unable to form healthy relationship with either parent. Some of the areas of concern for children impacted by parental alienation are:
- Emotion Distress, Anxiety, Depression, and Self Hate
- Poor reality testing and unreasonable cognitive operations
- Low self-esteem or inflated self-esteem, Pseudo-maturity
- Aggression and conduct disorder
- Disregard for social norms and authority, adjustment difficulties
- Lack of remorse or guilt
Parental Alienation Syndrome is recognized by the courts but is very difficult to define and in most cases requires bringing in County Social Services, Child Protective Services, and/or other professionals. Anyone claiming Parental Alienation Syndrome should look for family therapy as a constructive way forward. Other forms of abuse are physical, sexual, and neglect which are much easier to identify.
Children having some of these symptoms need help. Please contact an attorney and discuss your options on how to help this child. Formulate a plan to move forward. Do not give up your parental rights! Your child desperately needs and is entitled to your help!