HOW DOES THE COURT DETERMINE MY MONTHLY NET RESOURCES?

In my last post, I talked about how much child support a parent would be required to pay if that parent was not awarded primary custody of his or her child(ren).  As previously discussed, child support is based upon a percentage of a parent’s net monthly resources.  Section 154.125 of the Texas Family Code provides that a parent who does not have primary possession of the child(ren) and whose net monthly resources are $7,500.00 or less shall pay…

• 20% of his/her net income per month for one child,
• 25% of his/her net income for two children,
• 30% of his/her net income for three children,
• 35% of his/her net income for four children, and
• 40% of his/her net income for five children or more.

For more specific information on the amount of child support a parent may be required to pay, please refer to my previous post.

Once it is explained to a parent that child support will be a percentage of his/her net monthly resources, the next question that I am asked is what is included in calculating net monthly resources.  A parent’s net resources are calculated by first determining that parent’s average monthly resources.

Section 154.062 of the Texas Family Code states that resources for the purposes of determining child support shall include:

• social security taxes;
• Federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
• state income tax;
• union dues;
• cost of the children's health insurance, and
• if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.

Below is a very simple example for demonstrative purposes only:

If a parent is a full time employee earning $20.00 per hour, that parent will gross $800.00 per week (assuming that there is no overtime).  If you multiply this number by 52, which is the number of weeks in a year, then that parent will gross $41,600.00 per year.  If you then divide this number by 12, which is the number of months in a year, this parent’s average gross monthly income would be $3,466.67. 

For child support purposes, a parent with a gross monthly income of $3,466.67 per month would have $195.87 per month subtracted from this gross amount for social security taxes and $361.88 per month subtracted for federal income taxes, giving the parent a net monthly income of $2,908.92 per month.  If the parent were also to pay for or provide health insurance for the child(ren) at a cost of $200.00 per month, this amount would be subtracted from $2,908.92 leaving the parent with a net income for child support purposes of $2,708.92 per month. 

If the parent were paying child support for three children, that parent would be required to pay 30% of this net income or $827.68 per month.  If the parent were paying child support for two children, that parent would be required to pay 25% of this income or $689.73 per month.  If the parent were paying child support for one child, that parent would be required to pay $20% of this income or $551.78 per month.  Note that even though the cost of the health insurance was subtracted out to determine net income, health insurance still has to be paid on top of or in addition to child support.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069.  Also, follow us on Facebook and on Twitter.

How Much Child Support Will I Have to Pay?

One question I always seem to get as a family law attorney is: “If the other parent is awarded primary custody of the child(ren), how much child support will I be required to pay?” Under the Texas Family Code, the answer to this question can be a simple mathematical calculation.

Section 154.125 of the Texas Family Code provides that a parent who does not have primary possession of the child(ren) and whose net monthly resources are $7,500.00 per month or less shall pay 20% of their net income per month for one child, 25% of their net income for two children, 30% of their net income for 3 children, 35% of their net income for four children and 40% of their net income for 5 children or more.

Section 154.126 of the Texas Family Code provides that if a non primary parent’s net resources exceed $7,500.00 per month there is a presumption that monthly child support should be calculated as if that parent nets $7,500.00 per month. In other words, under the Texas Family Code, there is a presumption that child support should be capped at $1,500.00 per month for one child, $1,850.00 for two children, $2,250.00 for three children, etc.

If you are a parent who will be required to pay child support, you will also generally be required to provide and/or pay for the cost of the child(ren)’s health insurance. The monthly cost of the child(ren)’s health insurance will be deducted from your net monthly resources before the above percentage of 20%, 25%, 30%, etc. is applied. For example, if a parent’s net resources are $2,000.00 per month and the cost of the child(ren)’s health insurance is $300.00 per month, then that parent’s net resources per month for child support purposes is $1,700.00 per month. If that parent has one child, that parent will pay 20% of $1,700.00 or $340 per month in child support. In addition, that parent will be required to continue to provide and/or pay for the child’s health insurance at the rate of $300.00 per month. In other words, that parent’s total monthly child support obligation will be $640.00 per month ($340.00 in actual child support and $300.00 for the cost of the health insurance).

The Office of the Attorney General provides tax charts which can help you easily calculate what your child support obligation should be. In addition, there are several smartphone apps that can help you determine your child support obligation, as well.

The follow up questions I generally receive regarding child support are how does the court determine what my monthly net resources are and what if I have a child or children from a different relationship. Both of these are good questions, and both of these questions will be answered in future blogs.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069. Also, follow us on Facebook and on Twitter.

What is right for you: Pre-Trial Diversion, Deferred Adjudication or “Straight” Probation?

      

            When a person is charged with a criminal offense, only a handful of options are available for resolving that charge.  The vast majority of cases will be resolved by the accused announcing to the court a formal agreement containing the terms of punishment or sentencing that has been agreed upon by the prosecution and the accused.  This agreement is commonly called a plea bargain agreement.

            The most common sentence a criminal defender receives includes some form of probation.  A sentence providing for one of the following probation options would be appropriate for most misdemeanor offenses, minor felony offenses or for those defendants charged with a criminal offense for the first time.

            Perhaps the best probation offer available for a person accused of a criminal offense is the pre-trial diversion program.  This program is reserved exclusively for those defendants who have never before been charged with a criminal offense and is generally not available to those defendants charged with a felony offense.  Pre-trial diversion requires the accused to report to a probation officer once per month for the term of probation and to pay a supervision fee of fifty dollars per month of supervision.  This program rarely requires the accused to pay a fine or court costs, to attend offense related educational classes, or to complete community service.  If the accused successfully completes the program, his or her criminal history report will not reflect a conviction for the offense.  The true benefit of this program is the accused’s right to expunge or remove the arrest and indictment from his or her criminal history report.

            Sentences providing for a period of probation may also include deferred adjudication and straight probation.  Both of these sentencing options are available to those charged with either misdemeanor or felony offenses, though deferred adjudication is exclusively available to defendants with no prior convictions.  Both sentences require the accused to pay a fine, court costs and a fifty dollar supervision fee for each month of supervision required.  The accused will also be required to meet with a probation officer once per month for the term of supervision, to complete community service hours, and to attend offense related educational classes.  There is one important difference between deferred adjudication and “straight” probation:  if sentenced to straight probation, the criminal history report of the accused will reflect a conviction even if he or she successfully completes the required probation.  With deferred adjudication probation, the criminal history report of the accused will not reflect a conviction for the offense if the accused successfully completes the probation.  However, neither of these options allows the accused to expunge or remove the arrest and indictment from that report.

                For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069. 

Custody: Mom or Dad?

Many individuals who call my office often ask whether there is a presumption that mothers rather than fathers should be awarded custody of a child.  While this may have been true in the far distant past, there is no longer any such presumption.    

When making an award of custody to either a mother or a father, the court will make its determination based upon what it believes to be in the best interest of the child. In the leading case of Holley vs. Adams, 544 S.W.2d  371(Tex. 1976), the Supreme Court of Texas set out a list of factors that the court should consider when making a determination as to whom the court should award custody.  Some of the factors include the following:

a.       To what extent each parent has been involved in the child’s life

b.      The emotional needs and condition of the child

c.       Whether a parent poses a threat to the child or has a criminal record

d.      Which parent has a history of acting as the child’s primary caregiver

e.       What plans a parent has for a child’s future

f.       Whether one parent has attempted to turn a child against the other parent

g.      The involvement of a parent in the child’s education

h.      The overall quality of a household and a parent’s fitness to raise a child

As can be seen, all of the factors above are gender neutral.  In addition, the above factors have now been codified in Section 153.003 of the Texas Family Code which specifically states that the court cannot consider the gender of either parent when making decisions regarding custody.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069. 

Spousal Support in Texas: Does Length of Marriage Matter?

One of the grounds for receiving post-divorce spousal maintenance, or alimony as it is known to many, relates to the length of the marriage.  If you have been married for ten years, you may be entitled to receive post-divorce spousal maintenance.  Post-divorce spousal maintenance has been available in Texas since 1995.  However, there have been recent changes to the Texas Family Code which may make it easier to obtain.

If you have been married for at least 10 years and you lack the ability to earn sufficient income to provide for your minimum reasonable needs, you may be entitled to receive spousal maintenance.  The question then becomes "what is meant by minimum reasonable needs?”

Unfortunately, there is no set definition.  The courts must look at the facts presented in each specific case to determine whether spousal maintenance is appropriate. 

Some factors the court can consider in determining whether to award spousal maintenance are the seeking spouse’s educational background and employment skills, the work/business opportunities available to that spouse, the age of the spouse, and the contributions of the spouse as a homemaker. 

The length of time that a spouse can receive spousal support depends upon the total length of the marriage.  For example, if a spouse has been married for more than 10 years but less than 20, that spouse may be eligible to receive support for up to five years.  If a spouse was married more than 20 years, but less than 30 years, that spouse may be eligible to receive support for up to seven years.  Finally, if a spouse was married more than 30 years, that spouse may be entitled to receive support for up to 10 years. 

In all of the above situations, however, it is important to note that the court is generally required (with a few exceptions) to limit the duration of a maintenance order to the shortest reasonable period that allows a spouse seeking maintenance to earn sufficient income to provide for the spouse’s minimum reasonable needs.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069.

Spousal Support in Texas: What it could mean for you

Texas first adopted spousal maintenance, also commonly known as spousal support or alimony, in 1995.  The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse after divorce.  Originally spousal maintenance was intended to provide for the support of long-term homemakers.  The laws of spousal maintenance have since been expanded to protect disabled spouses, spouses who care for disabled children and spouses who have been the victims of family violence.

Beginning on September 1, 2011, some important changes took effect with respect to laws regarding spousal maintenance.  One of the more significant changes relates to the monthly amount of spousal maintenance one spouse can be required to pay to the other spouse.

As of September 1, 2011, in situations where post-divorce maintenance has been found to apply, a spouse who is ordered by the court to make monthly spousal maintenance payments to his or her ex spouse may now be required to pay up to $5,000.00 or 20 percent (whichever amount is less) of his or her average monthly gross income.  This is a significant increase from the earlier statutory language which provided for a maximum award of $2,500.00 or 20 percent (whichever amount is less) of a spouse’s monthly gross income.  The increase applies to divorce cases that have been filed after September 1, 2011.

Spousal maintenance is not available in every divorce case.  Whether you or your spouse may be entitled to receive or will be required to pay spousal maintenance will be determined based upon your individual fact scenario.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069.