Unfortunately, the COVID-19 pandemic has resulted in many people losing jobs or seeing a reduction in pay.  For someone who is court-ordered to pay child support, this can trigger the need to modify.  First and foremost, losing your job or having a decrease in pay does not mean that your child support obligation automatically changes or goes away.  It is critical to act quickly to modify your child support obligation unless you are in a financial position to continue paying the same amount.

In order to modify your child support obligation, you must obtain an order from the court.  If the other parent will agree to the change, you can get an agreed modification done very quickly through an attorney.  If the other parent will not agree, you will need to prove that your job loss or reduction in pay constitutes a “material and substantial change” sufficient to modify child support.  Determining what is a “material and substantial” change is a fact-intensive inquiry and decided on a case-by-case basis.  In general, any change in income caused by a lost job or decrease in pay that would change the child support calculation by more than $100 is considered to be a material and substantial change for purposes of a child support modification.

What should I do if I have lost my job or had my pay reduced?

If you have lost your job or had your pay reduced, you have two options for pursuing a modification of your child support payments. You can either hire a private attorney or you can request a modification through the Texas Attorney General.  A private attorney will charge you but is generally much quicker.  The Attorney General is free, but the process can take several months once a request is made.  If your child support obligation will be reduced significantly, it is usually worth the cost of a private attorney to make that change happen quickly.  You should start the process as soon as possible because job loss or a reduction in pay will not stop or “pause” payments.  You will not be able to retroactively reduce your child support obligation, so you want to initiate the modification as soon as possible.  Do not stop making payments if at all possible.  If you do, arrearages will begin to accrue and you will not be able to reduce those arrearages with a modification.  You will be responsible for paying the full amount owed plus interest, as you can only modify going forward.

What does the process look like?

If the other parent will agree, the quickest way to have your child support modified is to have an attorney file a petition to modify and an agreed order modifying child support.  If the other parent will not agree, your lawyer will file a petition to modify child support or the Office of the Attorney General will conduct a review of the child support order.  It is your responsibility to show the material and substantial change in circumstances.  The court will consider your past employment, ability to work and earn an income, and current federal minimum wage when considering whether to grant a modification and in what amount.  After a hearing, the court will determine if a modification is appropriate and, if so, how much the new child support obligation should be.

Are courts operating right now?

Yes.  COVID-19 has changed the way courts are functioning, but the courts are still functioning and cases continue to move forward.  Only “essential” matters are being heard in person, but non-essential hearings are taking place virtually via Zoom.  This means that your attorney can still file a suit for modification and request a hearing to have the order modified during this crisis.

Child Support

(Blog post by Samantha Mori and Holly Draper)

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Although most stay-at-home-moms I come across are married, every once in a while I come across a stay-at-home-mom who is not.  She has chosen to stay home and take care of the child(ren) while her boyfriend continues to work.  Maybe he convinced her that it costs too much for childcare for her to work, or maybe she just always dreamed of staying home with her baby.  Whatever the reason for making that decision may have been, there are a number of reasons why that decision can really come back to bite her down the road.  Below are five reasons why you should never decide to be a stay-at-home-mom if you are not married to the father of your children.

  1. Texas is a community property state, which is great… if you are married.  If you are not married, the father of your child, who you are in a relationship with and who you are sure would never do anything to hurt you, can be making millions of dollars.  Unfortunately, you will never see a penny of it if you split up.  Every dollar he makes is his separate property.  He is accumulating wealth while you are accumulating nothing.
  2. You know that beautiful house you and your child’s father picked out that he bought and you both live in?  It’s his separate property.  If he decides he wants to move on (or you can’t take his abuse any more, etc.), guess who gets to stay in the house?  Him.  And guess who will probably not be able to qualify to rent her own place because she has not been working in so long?  You.
  3. Because you were not married, you have no chance of getting spousal support.  Your only possible source of support from the father is child support.  Even if you are lucky enough to receive the maximum amount of child support, it is nowhere near enough to support you and your child(ren).
  4. The longer you have been out of the workforce, the harder it will be to get back in.  That degree your parents spent big bucks on or you went into debt to get?  It’s pretty worthless if you have not worked in years.  (This is true regardless of whether or not you were married, but at least if you were married, you would hopefully have some community assets to get you through while you got back on your feet.)  If he decides to kick you out of his house, you will need to support yourself and your child(ren) immediately.  That is not easy to do.
  5.  Don’t think you can just go back home to live with your parents if this happens to you if your parents don’t live nearby.  Residency restrictions are almost always granted if one party requests it.  A judge will likely not be sympathetic to your request to move far away so you can move in with your parents because you have no way of supporting yourself.  The court’s priority is for the child to have regular access to both parents, which cannot happen if you move away.

You may be wondering why I limited this post to stay-at-home-moms instead of “stay-at-home-parents” or “stay-at-home-dads.”  The reality is that it is women, not men, who make this mistake.  I have never seen an unmarried man give up his career to stay home with a child while his girlfriend worked.  I urge you to think long and hard before you go down this path.

Divorce

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Under the Texas Family Code, a party can modify child support in three situations:  (1) the parties have agreed to modify child support; (2) when the parties meet the three-year modification rule; and (3) when there has been a material and substantial change to justify a modification.   Parties can accomplish child support modifications either through a private attorney (generally much quicker but attorney’s fees are involved) or through the Attorney General (free but the process can take 6-9 months to even get started once a request is made.)

If the parties agree to modify child support and the court finds the modification to be in the best interests of the child, it is quick and easy to get child support modified with an attorney.

The three-year modification rule provides that the court can modify a child support order without a material and substantial change if it has been three years since the prior child support order and the new amount would differ from the prior amount by either 20% or $100 under the current child support guidelines.  Even if the 20% / $100 difference is not met, the Court could still modify child support if it feels it is in the best interest of the child.  If the prior order was based on the agreement of the parties and was not based on the child support guidelines at the time, the Court cannot use the three-year modification rule to modify child support.  In that situation, child support can only be modified by agreement or by proving a material and substantial change.

Finally, the Court can modify the amount of child support if the circumstances of either a parent or the child have materially and substantially changed since the prior order (or since the date of the mediated settlement agreement or collaborative law agreement on which the prior order was based).  The person requesting the modification has the burden of proving a material and substantial change.  If the change was anticipated at the time of the prior order, it does not justify a modification.  The court will look at a variety of factors such as changes in jobs, increases or decreases in pay, changes in financial circumstances, the birth of another child, etc. to determine if a material and substantial change has occurred.   The party requesting the change must show what the conditions were at the time of the order as compared to the conditions at the time modification is sought.

Child Support

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Unfortunately, the state of Texas is not very kind to stay-at-home parents in divorce.  Texas is a community property state, so anything made by the working spouse during the marriage is subject to being divided (usually 50/50).  This is great if the couple has been good about saving during the marriage.  If not, the stay-at-home-parent is really going to be in a bind.

Texas does not have alimony absent an agreement for contractual alimony between the parties.  Spousal maintenance exists, but it is very hard to get.  In order to receive spousal maintenance, a stay-at-home parent would have to prove that s/he lacks sufficient property to meet his/her minimum reasonable needs and s/he meets one of four statutory bases for spousal maintenance: (1) the spouses have been married for at least ten years and s/he is incapable of earning a sufficient income to meet his/her minimum reasonable needs; (2) his/her spouse was convicted of or received deferred adjudication for a criminal offense that constituted family violence against him/her or his/her child; (3) s/he is disabled and lacks the ability to earn sufficient income; or (4) s/he must care for a disabled child, which prevents him/her from earning a sufficient income.

As you can see, the criteria above are very specific and most stay-at-home parents do not meet any of them.  Did you give up your career so your husband could take a new job?  Not a reason for spousal maintenance.  Did you give up your career because your wife made enough money to support the family and you decided together that you would stay home?  Also not a reason.  Did you giving up your career years ago to raise the children mean you can never get back into that position again?  Not a reason.

A stay-at-home parent can expect to receive child support, assuming s/he is going to be the primary parent after the divorce.  However, child support is rarely enough to support the family.  The stay-at-home parent will almost certainly need to start working in order to have sufficient income to support him/herself and his/her children.

Divorce

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Child support is a critical element of a child custody case in Texas.  In the majority of cases, one party or the other does end up paying child support.  Here are several important factors to consider in determining whether or not you would have to pay child support (or if you would receive it) and, if so, how much that would likely be:

  1. What is the possession schedule?  If Parent A has primary custody and Parent B has a standard possession order or expanded standard possession order, then Parent B will almost universally pay guideline child support.  However, if Parent A and Parent B have a 50/50 schedule, then the issue of child support is not as clear cut.  If they have some other unique possession schedule, we would look at the percentage of time the child has with each parent and go from there.
  2. If there is a 50/50 possession schedule, what are the incomes of the parties?  There is nothing in the Texas Family Code about 50/50 possession or about what to do with child support when the parties have a 50/50 schedule.  However, I see 50/50 possession schedules on a very regular basis.  If Parent A earns a very high income (well over the child support cap of $8,550 per month in net resources) and Parent B earns a very low income or no income, Parent A will likely still pay guideline child support, even with a 50/50 schedule.  If Parent A’s income is not super high but Parent A makes more than Parent B, then we will usually see a child support offset.  That means we would calculate what Parent A would pay under the guidelines, calculate what parent B would pay under the guidelines, and the parent who makes more (Parent A) would pay the difference.   Sometimes with 50/50 schedules, parties will reach agreements on splitting expenses (daycare, extracurricular activities, etc.) instead of having one party pay child support.
  3. What are the child support guidelines?  The Texas Family Code provides guidelines for calculating child support.  To calculate child support, you simply multiple the paying parent’s net monthly resources (up to the cap of $8,550) times the percentage applicable.   The guideline calculations are easy if the paying parent has no other children to support.  Those guidelines are as follows:  1 child (20%), 2 children (25%), 3 children (30%), 4 children (35%), and 5+ children (40%).  If the paying parent has other children to support, there is a chart that shows the various percentages based on the numbers of children.  For example, a parent with one child in the current case and one other child to support would pay 17.5% under the guidelines instead of 20%.
  4. Can we agree to no child support?  That depends on a few factors, such as the possession schedule, the income of the parties, and whether there are extenuating circumstances that would weigh in favor of no child support.  I have seen many parties agree to no child support, but I have also seen a few judges balk at it.

The best way to determine whether or not you would need to pay child support (or whether or not you would receive child support) in any particular case is to speak with a knowledgeable family law attorney.

Child Support

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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.

Paternity

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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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