In any family law case (divorce, child custody, child support, etc.), you may hear the term “discovery” used.  Although there are many kinds of discovery, this term is typically used to refer to formal, written discovery.  Common types of written discovery include a Request for Disclosure, Requests for Production, Interrogatories, and Requests for Admissions.

A Request for Disclosure is a standard set of questions that comes from Rule 194 of the Texas Rules of Civil Procedure.  It is used in all types of civil cases, not just family law, and therefore many of the questions are not relevant in a family law case.  There is some helpful information to be gained from a Request for Disclosure, such as a list of persons with knowledge of relevant facts, so it is still common to see this type of discovery in family law matters.

Requests for Production ask a party to produce documents or other tangible things.  There is no limit to the number of requests for production a party can request, and it can become extremely time-consuming for a party to gather the requested documents.  It can also be extremely time-consuming to review the documents produced by the other party.  Examples of commonly requested documents are tax returns, school records, medical records, diaries, e-mails and texts.

Interrogatories are questions that seek a written answer from the other party.  In most case, parties are limited to serving 25 interrogatories on the other side, so it is important to make them count.  Common interrogatories include asking for a list of trial witnesses, asking for information on medical issues, or asking for specific financial information.

Requests for Admissions ask the opposing party to admit or deny a certain fact.  I normally find that people will deny almost everything based on some type of technicality, so I don’t use Requests for Admissions too often.  There are certain cases where there are facts that you really want the other party to admit or deny, so on occasion these can be helpful.

In my practice, I rarely initiate written discovery.  Most often I feel it is an unnecessary expense for the client where a lot of needless information is sought.  If there is a document or information I need, most attorneys will hand it over voluntarily.  That type of informal discovery streamlines the process tremendously.  However, if the other party serves written discovery, I will always serve written discovery on that party.  Some firms make it a standard practice to use written discovery in most cases.   If you are served with written discovery, it is important to meet the deadlines to answer or any valid objections you may have will be waived.

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Temporary orders can be entered in any family law case to govern what will happen with various different aspects of the case while it is pending.  Temporary orders can relate to both the child(ren) and other financial matters.

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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In Texas, if you are not married when your child is born, there is no legal father.  The biological dad is not legally the father until a court adjudicates him to be so.  (Prior to a court finding that he is the legal father, the unmarried biological father is referred to as the “alleged father.”)  The bio dad can (and should) sign an Acknowledgment of Paternity form when the baby is born.  Many hospitals now have this form on site when a baby is born.

In order  for the biological father to obtain legal status as the father, someone must file a paternity suit.  Either parent can file a paternity suit, as can the Attorney General.  (Usually the Attorney General will file suit when Medicaid is involved because they want the government to be reimbursed for medical expenses.)  This is the case even if everyone admits he is the dad and there is no dispute.  This is also the case even if dad signed a valid Acknowledgment of Paternity.

The paternity suit serves several purposes.  First, it allows the Court to formally adjudicate the biological dad as the legal father.  If everyone admits he is the father or if he signed an Acknowledgment of Paternity, then the Court will adjudicate him to be the father.  If either side contests paternity, the Court will order a paternity test.    Other issues typically involved in a paternity suit are conservatorship (rights and duties), possession and access (the schedule for when each parent has the child), and child support.

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The Texas Family Code provides guidelines for calculating child support.  The guidelines are followed in the vast majority of cases.   If you are involved in a child support case with the Attorney General, you can be confident that the guidelines will be followed almost 100% of the time.

The guidelines calculate child support based on net income.  This does not necessarily mean the same thing as “take home pay.”  Net income is calculated as gross income minus the correct amount of taxes (which may or may not be the amount withheld from the paycheck), and minus health insurance for the child(ren).  (There are a few other things that can be subtracted but they do not apply to most people.)

If the parent paying child support is providing insurance for more than just the children (himself or herself, a spouse, etc.), then it is important to figure out the cost for just the children.  Generally an employer will have charts showing the cost of insurance for the employee only, employee plus spouse, employee plus children, and employee plus family. Only the cost of insurance for the children will be factored into the child support calculation.  The parent paying child support will be usually be responsible for either providing the insurance for paying a set amount to the other parent for the cost of insurance.

If the parent paying child support has no other children outside of the case at issue, child support is calculated as 20% for one child, 25% for two children, 30% for three, 35% for four, 40% for five, and “not less than the amount for five children” for six children.  The percentages change if the parent paying child support is responsible for supporting other children.  For example, if a parent has one child with the parent involved in our case and one child with someone else, the child support guideline for the child in this case would be 17.50%.

Generally child support is capped at the first $8,550 in net resources.  A custodial parent can bust through that cap if he or she can show that the child’s needs exceed the presumptive amount of support.

Although the family code does provide reasons for deviating from the child support guidelines, it is pretty rare to see a judge order anything different than the guidelines.  I most often see courts vary from the guidelines when the non-custodial parent has more possession time than a standard possession order.  The parents can always agree to a different amount and it will usually be approved.

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If you owe child support and currently have an arrearage (past due child support), you may find out the hard way at tax time that the Attorney General can take your refund and apply it to your arrearage.  They can take this action even without a court order specifically authorizing them to take a tax refund.  I have seen refunds taken even when the person was making monthly payments on the arrearage when the arrearage was large enough.  If you are married, this could also impact your spouse’s refund.

If the Attorney General takes your refund, it is very difficult (and maybe even impossible) to try and get it back.  As far as they are concerned, you owe back child support and that money goes to the other parent.

If you owe back child support is there anything you can do to protect your tax refund?  It’s simple.  Do not withhold more taxes than you owe.  If you are not getting a refund, there is no money to be seized.  Although it is too late to go back and withhold less taxes for past years, you can make adjustments to your withholding going forward.

Obviously, I recommend that you take care of any child support arrearage as quickly as possible such that your child support is current.  However, many people are taken by surprise when a much anticipated tax refund is taken.

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Time and time again potential clients come into my office because of a child support issue and one of two scenarios is present.

Potential Client No. 1:  This potential client is the party paying child support.  He (or she) has lost a job or otherwise had a significant loss in income, and now this parent has accumulated a large arrearage.  He (or she) comes to me seeking relief from both the too-high current child support amount and the large arrearage.

Potential Client No. 2:  This scenario involves the other side of the coin.   The parent who receives child support comes into my office.  The other parent has been making significantly more money than when the child support was calculated and has thus been underpaying for months (or even years).  The potential client comes into my office looking to both raise the current child support amount and have the other parent pay extra for all that extra money he or she has been making.

Both of these potential clients are making reactive decisions about child support, and they are both going to be very disappointed.  The Texas Family Codes generally does not allow us to look back and adjust child support retroactively.   Potential Client No. 1 will most likely be stuck paying that large arrearage.  If he or she would have sought to amend child support immediately upon losing a job, the child support amount would have been reduced and no arrearage ever would have occurred.  Although the child support will be lowered going forward, this person will have to tack on extra each month to pay down the large arrearage.

Potential Client No. 2 will have the child support amount raised to the appropriate level going forward, but this person will not be able to receive any extra child support for years past.  If he or she would have sought to amend child support immediately upon learning the other parent had a new (higher paying) job, this person would have received significantly more child support over the years.

The bottom line is that it is critical to be proactive and not reactive when it comes to child support.  If there is a significant change in income, the loss of a job, the birth of another child, or any other significant event, one parent or the other should be filing to amend child support immediately.

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If a case is contested, it will involve some form of discovery.  “Discovery” is a term that covers several different avenues for collecting information to use in the case.  In many cases, I like to do informal discovery.  Basically, this means that the other attorney and I will simply exchange requested information without a formal request.  This takes less time and saves on attorney’s fees.

Sometimes formal written discovery is needed.  Written discovery can include a Request for Disclosure, Interrogatories, Requests for Production, and Requests for Admission.

A Request for Disclosure is a specific set of questions laid out in Rule 194 of the Texas Rules of Civil Procedure.  Many of the questions in a Request for Disclosure are not applicable in the family setting, and I rarely do a Request for Disclosure.  The relevant questions include laying our your legal theories and providing a list of persons with knowledge of relevant facts.

Interrogatories are specific written questions to the other side.  You are generally limited to 25 interrogatories, so use them wisely.  Most attorneys have standard interrogatories that they send out, depending on the issues in the case.  I like to tailor the interrogatories to each specific case.

Requests for Production are written requests for the other side to produce certain documents.  For example, in a child support case, you would want to request pay stubs and tax returns.  In a property dispute in a divorce case, you would want to request a wide variety of financial records.  There is no limit to the number of requests for production you can serve on the other side.

Requests for Admission are questions asking the other side to admit or deny certain facts. It is rare that the other side will just admit to a damaging fact.  I do not use these often in family cases.

In addition to written discovery, the parties can take depositions or subpoena records from third parties to gain additional information.

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To calculate child support, the court must apply the child support guidelines found in the Texas Family Code.  The percentage found in the guidelines is applied to the monthly net resources of the obligor (the person paying child support.)  (The percentage only applies to the first $8,550 in net monthly resources.)

When all of the children for the obligor are in one household, the guidelines are as follows:

Number of Children                Percentage of income owed as child support

1                                                                    20%

2                                                                    25%

3                                                                    30%

4                                                                    35%

5                                                                    40%

6+                                Not less than the amount for 5 children

When the obligor has children in multiple households, the child support guidelines are calculated based on the total number of children before the court as compared to the total number of other children not before the court.  For example, if the obligor has two children before the court but three other children, the total percentage of net income owed for child support for the two children would be 19%.

Although there are some situations where the court will deviate from the guidelines, courts will order guideline support the vast majority of the time.

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In many situations, it is not necessary to obtain a new court order if the parties are getting along and agreeing on things.  For example, if the parties agree to change one party’s visitation from Wednesday to Thursday, there is usually no need to have a formal modification.  However, when it comes to child support, it is critical to have a court-ordered modification if you make an agreed change.

I have seen several instances where one party stopped paying child support because the children started living primarily with that parent.  Even if the other party is in agreement and has no intention of enforcing the child support order, it is very dangerous not to change the order.  As far as the state is concerned, you are continuing to accrue an arrearage.

Having an arrearage on the books with the state can be problematic for several reasons.  First, the state can report your arrearage to the federal government, who may take your tax return and apply it to the arrearage.  Next, the arrearage can be reported to credit agencies, negatively affecting your credit.  Finally, the state may start an enforcement action against you in an attempt to collect the arrearage.

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Texas law requires that child support payments be made through the state disbursement unit. Every order that includes child support payments will state that payments are to be made through the state disbursement unit.  Unfortunately, I hear people all the time who are not following this provision of the order.  It is all too common for one party to pay another directly for child support.

In theory, paying the other party directly may seem like a great idea.  There is no lag time for the money to get through the disbursement unit and back to the recipient.  There is no fee taken out by the state for administration.  However, the risks involved with direct pay are significant.

If you choose to pay child support directly to the other party, there will be no outside party keeping a record of your payments.  Someday, you could find yourself in court with the other party claiming you have not paid your child support.  According to the Attorney General, that will be true.  You could potentially have a paperwork nightmare trying to prove that each payment was made.  Further, the other party could contend that the money you gave them was not for child support.  For example, if you made a child support payment around the holidays, the recipient may claim it was a Christmas gift.  The risk is simply too great that you will never get credit for the payments that were made.  A small fee is well worth it to avoid the risk of an arrearage down the road or – even worse – jail time for failure to pay child support.

 

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