If you have minor children and foresee a divorce in your future then it’s important to have a handle on the basics of child support in Texas, so here is a primer of sorts –

First, support is almost always based on the income of the paying parent not the receiving parent even though the receiving parent may make more, sometimes a lot more, than the paying parent. While the Court can consider the ability of both parents to support the children as well as the available financial resources most judges will, most of the time, follow the child support Guidelines as they are applied to the support paying parent.

And just what are those Guidelines, you ask? Basically, they’re what the Texas Family Code says a court should use in setting child support. In reality, the Guidelines accomplish two things: first, they define what counts as income that a court may take child support from (the income available for child support is called “net resources”) and, secondly, they tell a court how much to take out for child support.

First, in computing the amount of net resources the Guidelines say that a court has to begin with all of a parent’s income. However, income is not only what a person makes at his or her job but also includes commissions, overtime pay, tips and bonuses as well as unearned income such as interest, dividends and royalties. Also included is self-employment income, net rental income and all other income actually being received which means that things you might not ordinarily think of as income will go towards what’s available to pay child support and we’re talking here about severance pay, retirement benefits, trust income, annuity income, capital gains, social security benefits other than SSI, unemployment benefits and worker’s compensation benefits. This even includes gifts and prizes as well as spousal maintenance or alimony being received!

Next, once a parent’s total income has been figured up the Guidelines tell a court what to subtract to get to that parent’s net resources. About all that gets subtracted out are federal income taxes and payroll taxes (and that’s for a single person who uses the standard deduction and claims one exemption) and the cost of health insurance to that parent for the children.
Then, once a court has figured the net resources for the child support paying parent, the last step is to set the actual amount of child support which is done via use of a percentage – 20% for 1 child, 25% for 2, 30% for 3, 35% for 4 and 40% for 5 or more.

Here’s how that operates in the real world – let’s say you are getting divorced and will be paying child support. You have 2 children. You make $60,000.00 a year as an employee and also receive $6,000.00 a year in interest and royalty income. Your income is, therefore, $66,000.00 annually or $5,500.00 a month (everything is done in months, by the way). Per the Guidelines, your federal income tax and payroll tax hit will be about $1,165.00 a month, leaving you with net resources of $4,335.00 monthly. Let’s also say that you’re going to keep the children on your group health plan at work and it will cost you $200.00 a month.

Hence, you have income available to pay child support of $4,135.00 a month. For 2 children you’ll pay 25% as child support so you can be pretty sure your monthly support will be set right at $1,034.00 a month. And, no, that’s not tax deductible to you.

Now, you must understand that there are subtleties to this system. It applies to most parents but it is possible for some to get so-called “above Guidelines” child support, for example, and figuring out exactly how much income self-employed parents make and what they should pay in support can be tricky. There are also adjustments to be made for child support paying parents who have “other” children (who are not before the court) for whom they owe a duty of support.

We’ll talk more about some of those subtleties in other blogs. For now, suffice it to say the good news is that for most of you parents there’s a fair amount of predictability in how much child support you are likely to pay or receive. That makes budgeting easier to do for both the support paying and the support receiving parent but the bad news, if it is bad news, is that there’s not much flexibility in the system. For maximum flexibility, parents should focus on making agreements that meet their joint needs, not going to court.

Lewis & Passons, P.C.
www.dentonfamilyattorneys.com

While most people know what a divorce is, many don’t understand how a person actually goes about getting one, so we thought it would be helpful to give you an idea of what the process looks like.

Most importantly, while a man and a woman can get married in Texas without a marriage license (lawyers call it an informal marriage while the rest of you probably know it as a common law marriage) we don’t have the opposite – there’s no such thing as a “common law divorce.” A divorce is a court order and to get a court order you have to get into court.

And you get into court by filing a lawsuit, so a divorce starts out with a lawsuit being filed which asks a court to divorce the spouses, divide their estate, and provide for custody, support and visitation of their children.

Do you have to have a lawyer to get divorced? No, you don’t. You may do it yourself, if you are so inclined. If you have any property to speak of or minor children, or both, we think most folks are well advised to at least get some legal advice if not hire a lawyer but that’s up to you. One caution, however: one lawyer may not represent the both of you.

In Texas, the divorce lawsuit has to be filed in the county where one or both spouses have resided for at least 90 days. If husband and wife have been separated and living in different counties for more than three months then, yes, their divorce lawsuit can be filed in either county. So, the first to file usually ends up being the place the lawsuit gets heard.

Our state law says that the divorce lawsuit has to be on file (“file” means the day on which the lawsuit – which has to be written down on paper – is presented to the proper official, like a district clerk, who accepts it and places it in a court file) for 60 days before the court can sign the final divorce order, so the process takes at least two months.

The party who filed the divorce can get official notice served on the other party, who then has to file a written response within a certain time period. Or, the filing party can decide not to send out official notice, usually because he or she believes the parties will reach an agreed upon resolution of their divorce in the form of an agreed decree of divorce.

During the time the divorce lawsuit is on file, the parties can require each other to furnish documents and information about their estate or the children – this is a process called “discovery.” It often includes the parties exchanging sworn financial statements and can also include a report from a social investigator who is appointed by the court to make a recommendation on custody (for those parents can’t agree on it between themselves, of course).

And finally, whether by agreement or after a trial, the court will sign a divorce decree which ends the marriage and which deals with the couple’s property and their children. Getting from the day the lawsuit was filed until the day the court signs the decree can be as short as 61 days or as long as several years although most divorces seem to get from start to finish in less than a year’s time.

So, that’s a quick look at the process of divorce. Obviously, there’s a lot more to it but this is just a brief overview and we hope it has been helpful.

Lewis & Passons, P.C.
www.dentonfamilyattorneys.com

People who are in family law cases – such as those involving divorce and child custody – usually have an interest in achieving their goals but not in creating or prolonging expensive lawsuits that can damage relationships between parents. Most want to avoid that and be able to resolve their case without having to go all the way to a final trial.

Unfortunately, because family law cases very often deal with emotionally charged issues such as who gets custody of minor children, and because the goal of each party is to end up with custody, it can appear to the parties that there’s no way their case can be resolved short of a full-blown trial at the end of which a judge will rule in favor of one or the other. The parties get locked into an “all or nothing” way of thinking.

Well, what if I told you there is another way, one that avoids the “all or nothing” approach, that’s very effective (works about 75% of the time), avoids trial and gives the parties the power to craft their own, unique resolution not by going head-to-head but with the help of a trained, neutral go-between?

That way – mediation – has existed for a long time and it is used extensively by courts and lawyers as an invaluable tool to resolve cases of all kinds – not just family law – long before final trial. It not only can save money and time, but also help prevent the damage to the familial relationship that is the all-too-often result of all-out family law litigation.

Quite simply, mediation uses a trained go-between, the mediator, who is a neutral who is charged with the duty to meet with the parties and their attorneys and then facilitate them to make and exchange settlement options. The mediator’s job, if you will, is to find the common ground that always exists between parties in a case, even the most contentious, and then help the parties explore and expand their common ground into a base for an agreement to bring their case to an amicable and agreed upon conclusion.

Mediation is confidential (what’s said in mediation stays there), private (usually conducted in the mediator’s office) and safe (a party can be required to attend mediation but he or she cannot be compelled to make an agreement there).

Is it for every family law case? No, it’s not but it is appropriate in many if not most cases. As practiced in Texas, family law mediation is usually done on one day, in one sitting, with both parties and their attorneys present but not in the same room. Whether it is right for your case is a matter you should take up with your attorney. What’s important for now is to know that mediation is an available tool that can be very effective if used properly, with adequate preparation, and at the right time in your case.

Mark Lewis
Lewis & Passons, P.C.
www.dentonfamilyattorneys.com

Tough economic times are a vicious cycle for folks in a divorce – money problems often lead to divorce while the cost of the divorce itself pushes the divorcing spouses further apart and results in more, not less, conflict and unhappiness and leads to further financial loss.

While we can’t speak to whatever money problems you may be experiencing right now, we can offer some guidance on the cost of a divorce. In fact, one of the first questions normally asked of an attorney during an initial divorce consultation is “How much is my divorce going to cost?”

The best and most honest answer that a lawyer can give at that point is “I don’t know” because at that point he or she can’t forecast what will happen in your case. What we can say is that because cost is driven by the amount of time that your attorney will be employed for you, the longer your case goes then the more it will cost you so a simple, uncontested divorce may cost only a few thousand dollars while one which involves a custody fight might cost tens of thousands of dollars.

So, the first thing you should take away from this is that the less time your case takes from start to finish then the less expensive it will be. And since the quickest way to get your divorce done will be with an agreement with your spouse then it follows that the most cost-effective manner to get divorced is by agreement. Therefore, we think it’s always important for a lawyer to discuss and encourage settlement (which means the two sides resolve their case by mutual agreement as to what the outcome will be) with his or her client whenever possible.

As the saying goes, though, it takes two people to agree but only one to argue and if your spouse insists on arguing with you then you have two choices: to capitulate or stand your ground. While it is easy to say that it’s better to find common ground and compromise on contested issues, in practice this is often very hard to accomplish. By way of examples of cases where common ground can be very hard to find, both parents may want primary custody of the children or one spouse may want post-divorce alimony but the other spouse may tenaciously resist paying it.

What we can do is offer a few tips to help you manage the cost of your divorce case:

1. Before your first meeting with your lawyer, take time to think about what goals you want to accomplish and then share those with your lawyer. No doubt your first goal is to get divorced. A second may be to receive a fair share of your community estate. A third may be appropriate custody of and visitation with children.

2. Be proactive with your lawyer – ask him or her to share with you the many tools which might be used to conclude your case short of all-out, expensive litigation. These tools include a settlement conference, mediation, collaborative divorce, and arbitration. Open your mind to using these tools in your case, which means a willingness to be flexible in your positions and negotiating. What’s important, after all, is achieving as many of your goals as possible. How you do it can vary greatly but if you get locked in on one way then it may be very hard to reach common ground, especially if your spouse is locked in on his or her way which is very different from yours.

3. Have realistic expectations. Rarely does one side get everything he or she wants.

4. Do your homework in a timely fashion – when your attorney gives you assignments such as filling out forms and gathering documents, complete these tasks within the timeframe provided to you.

5. Minimize conflict – anytime you communicate with your spouse be brief, factual, and polite. Avoid “pushing his or her buttons” and don’t let him or her push yours. Refrain from becoming romantically involved with anyone during the pendency of your case.

6. Seek out and hire an experienced family law attorney. Experienced attorneys, particularly Board Certified attorneys, tend to charge more per hour but, as with most things, you get what you pay for and the skill and counsel you will receive is well worth it and can go a long way in reducing the time your case spends in the legal system, hence reducing your over-all costs.

Andrew J. Passons
Mark Lewis
Lewis & Passons, P.C.
www.dentonfamilyattorneys.com

If you are currently involved in a divorce case – or think you may be soon – you may have heard about something called “collaborative divorce.” If you’re like most people, you don’t know what it means but, because it’s vitally important for you to understand the various ways in which your divorce can be concluded, it’s important to you to know something about collaborative divorce.
Collaborative divorce hasn’t been around very long – about twenty-five years – and it stems from the fact that the vast majority of most divorce cases never have to go to a final trial in front of a judge or jury. Instead, most people in most divorce cases ultimately reach an agreement to bring their case to a conclusion. Often, however, this occurs only after a lot of time and money have been spent not to speak of the emotional toll taken on the spouses and their children.

Collaborative divorce grew out of the two very basic ways to bring divorce cases to a conclusion – the first is by means of litigation (trial) which means the parties have disagreements which have to be settled by a judge who imposes his or her result on the parties and their case. Or, a case can be concluded by an agreement in which the parties themselves decide how to bring their case – and their marriage – to an end.

Since the vast majority of cases don’t go to final trial but settle, a family lawyer once asked this simple question: wouldn’t it make sense to treat divorce cases as if they’re going to settle from Day One rather than treating them as if they’re going to have to go to trial? The answer was “yes,” and so was born collaborative divorce in which the spouses and their lawyers work together, from the beginning, to bring the case to a conclusion dictated by the parties, not the attorneys or the judge.

Collaborative divorce is a new and effective tool to assist people in bringing their marriages to a dignified, private, and mutually agreed upon conclusion that is almost always less costly and time consuming than going to a final trial. Collaborative divorce permits the spouses to control the outcome of their divorce case and it only moves as fast as they wish to proceed. They choose not only the outcome but the speed of the process of getting divorced.
Collaborative law isn’t for everyone but if it sounds like something you’d be interested in then check it out. Some good resources are the websites of the Denton County Collaborative Professionals and the Collaborative Law Institute of Texas. It’s also important for you to hire an attorney who has training and experience in Collaborative Divorce. Your spouse will also need an attorney like that.

If you are in a divorce now – or believe you will be soon – you may wonder how your property will be divided. One common misconception is that every item of property is divided equally, 50% to one spouse and 50% to the other. Another fairly common but mistaken notion is that the spouse who is at fault – for having committed adultery, for example – will be punished and receive far less of the property than will the innocent spouse.

While there may be a smidgen of truth to these ideas, on the whole that’s not how property division works. What’s important to keep in mind is that if the two spouses reach an agreement between them on how to divide their property then the Judge will almost always follow that agreed upon division. But if the two sides can’t agree then the Court will have to decide how to divide the property and, when it does so, it will follow some basic principles of the law.

The first is that the Court can divide only the community property. Community property is what a married couple owns together by virtue of being married but it doesn’t include property a spouse owned before marriage or received during marriage by gift or inheritance. That’s the separate property of that spouse and the law says it belongs solely to that spouse.

As for the community property, the law says that it has to be divided fairly having regard for all of the relevant circumstances. Usually, a “fair” division tends to be close to 50-50 but it need not be exact and it is usually accomplished by a division of the net value of the community estate not of each separate asset. For example, a couple may own as community property a house with equity of $50,000.00, bank accounts with $10,000.00 in them, cars with equity of $15,000.00 and retirement accounts totaling $75,000.00. That’s a value in the community estate of $150,000.00 so the Court might decide that “fair” means awarding $75,000.00 to one spouse and $75,000.00 to the other but it could accomplish that by either dividing everything 50-50 or by giving one spouse all of the retirement and giving the other all of the house, bank accounts and cars.

The Court can also vary from 50-50 if it believes that it’s fair to do so. For example, if one spouse earns $200,000.00 a year but the other spouse earns only $20,000.00 a year then the Court might well decide that it’s fair to give the lower earning spouse more of the community estate. Similar considerations exist where there are differences between the spouses based on their ages, states of health, sizes of their respective estates, who has custody of any minor children, etc.

Finally, while Courts can divide a community estate unequally in favor of an innocent spouse (in a case in which the other spouse is at fault in the divorce) we don’t normally see a significantly unequal division based solely on fault. In fact, the more unequal divisions tend to revolve around economic disparities between the spouses.  That being said, every case is unique, and your best bet is to hire an experienced family law attorney to assist you.

According to www.internetworldstats.com, as of June 30, 2011, the estimated population of North America is approaching 348 million people. That same site estimates the number of North Americans with a Facebook account at just shy of 168 million. This means that 48.4% of all North Americans have a Facebook account. As of September 8, 2011, Twitter reports that it has over 100 million users worldwide.

Social networking is here to stay. It may evolve – just as music did from the Walkman, to the CD, to the iPod, and the cell phone did from the “bag” phone, to the flip phone, to the mini-computers most of us carry around now – but it will be one of the trademarks of this generation. While social networking is a fun and effective way of keeping up with your friends and family, it can also be a fun and effective way for a divorce attorney to dig up evidence for your custody case.

If you are, or soon will be, involved in divorce or custody litigation, you should be cautious about what, if anything, you post on the internet, particularly on social networking sites. The last thing that any family law attorney wants to see as Exhibit 1 at a court hearing is the picture of you guzzling shots at the Jimmy Buffett concert or chugging beers at the tailgate party. Just as damaging is the Facebook post where you call your soon-to-be ex-spouse names that would make Richard Pryor cringe.

It is always best to assume that everything you say, email, or text will be used as evidence in your divorce or custody case. That is especially true when it is posted for your 567 “friends” to see. The better practice is to maintain “internet silence” at all times. It will make your life less stressful, and it will make your attorney’s job easier.

If you’re engaged to be married, congratulations! But, do you and your spouse-to-be need a premarital agreement?

To help you out here are some things to keep in mind –

1. For some people the very thought of a premarital agreement is unacceptable because it’s too much like predicting their marriage will fail. If that’s you then read no further. A pre-marital agreement won’t work for you and yours because you’re going to have to be willing to talk about what will happen if your marriage fails.

2. However, If you and your betrothed are able to talk about it then leave yourself plenty of time, in advance of the wedding, to get your agreement in place. At a minimum, you should start the process of getting your premarital agreement prepared at least 90 days before the big day – and the earlier you start, the better.

3. There are do-it-yourself premarital agreements available on-line and in business supply houses and, while they are a less expensive alternative to a lawyer-drawn premarital agreement, we think you should avoid them. Why? For the same reason we think you should not perform your own gall bladder operation or fill your own cavity – it’s dangerous for someone who’s not trained to do it.

4. Most family lawyers (attorneys who handle things like divorce, child custody and support, property division, adoptions, etc.) can prepare a premarital agreement for you. Depending on your situation, you may want to consult with a Board Certified family law attorney (a specialist).

5. A premarital agreement can do three things – first, it can identify what property you owned before your marriage so, if the marriage ever ends, it’s easier to show what’s “yours.”

6. Second, a premarital agreement can keep income from your separate property (rent from a house or income from a CD, for example) as your separate property. Without a premarital agreement, income from your separate property becomes community property when you marry. The premarital agreement can even say that your income after marriage will be your separate property not community property.

7. Lastly, a premarital agreement can say there won’t be any spousal alimony in case there is a divorce.

So, premarital agreements can range from the very simple to the very complex and what you may need will depend on many factors – your age, whether this is a first marriage and, if not, whether you have children from a prior marriage or relationship, the size of your estate, the needs and desires of other family members (such as your parent or sibling, if you are in business with them), etc.

If you want to hire a lawyer to prepare a premarital agreement, start early! Get referrals from friends and business associates who have used family lawyers in your area before. Call and check them out and decide who you may want to hire then consult with that attorney. Go into your meeting with information about your estate and some idea of what you’d like the premarital agreement to do for you. Then, ask how much this will cost – the lawyer will be able to give you a pretty good estimate after meeting with you. Many will do it for a fixed fee.

One final word – your betrothed will need a lawyer also – one attorney cannot represent the both of you.

Good luck and, again, to those of you who are engaged and about to embark upon the sea of matrimony, congratulations and smooth sailing!

You’ve gotten divorced and you’re ready to move on with your life but you have a nagging feeling that you’re leaving something undone. That’s especially true if you’ve done your divorce yourself.

Well, there ARE a lot of things to keep in mind as you begin life as a single person, and while one article can’t contain all of them here’s a handy checklist of some of the more important items -

• Review and update your estate plan – if you don’t have a will then get one drawn. Ask your estate planner about a power of attorney and a living will (physician’s directive) and whether they’re right for your situation.

• Review and make changes to your beneficiary designations for life insurance policies, homeowner’s policies, IRA’s, 401k’s, etc.

• Pull a credit report on yourself just to make sure there aren’t any “surprises” and do so annually thereafter (think of it as a chore sort of like going to the dentist every year – mildly unpleasant but necessary).

• Make sure that any joint bank accounts with your former spouse have been closed or otherwise taken care of properly.

• Keep at least the last six years of your joint tax returns with you. If your former spouse will have the originals then make sure you get copies for your files.

• Change your mail if your address changes.

• Keep a written record of the days and times that your former spouse has the children.

• Read your decree very carefully – in fact, study it until you know it backwards and forwards.

• In all communications with your former spouse, especially e-mails and texts, remember to always be Brief, Factual and Polite (BFP).

• Don’t gossip about your former spouse.

And, most importantly, savor the moment and enjoy life! Good luck!

Mark Lewis
Lewis & Passons, P.C.