Posted on August 19, 2015 in Child Support

To determine the amount of child support, the judge mechanically applies the guidelines in Chapter 154 of the Family Code, at least in the vast majority of cases. However, especially if there is a complex child custody dispute, these guidelines are not always reflective of the child's needs. What must a party do to convince a judge to depart from the guidelines, and how is the amount set in these situations?

Unjust or Inappropriate

In the case of Section 154.122, these two words are not synonyms. Instead, they give both the mother and the father a basis to request an increase, or decrease, in child support payments.

"Unjust" implies that the guidelines would require the non-custodial parent to pay too much, because this person's income is lower than the custodial parent's income. Such a situation was essentially unfathomable when this section was first codified in the 1970s, and even when the Family Code was rewritten in the 1990s. However, in today's world, it is not unusual for the mother and father to switch breadwinner and caregiver roles, at least to some extent.

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 Posted on August 12, 2015 in Spousal Support

The Internal Revenue Service recently released supplemental guidelines regarding spousal support payments and income tax consequences.

These payments are tax-deductible, but the IRS will scrutinize the deduction to ensure that the tax return meets certain qualifications. An obligor spouse must make payments in cash or cash equivalent directly to the obligee spouse; these payments are specifically designated as "maintenance" in the temporary or final order; the spouses are physically living in separate households; and the obligation ends upon the payor spouse's death.

"Alimony" does not include voluntary payments or use of property, and the obligor spouse does not have to itemize to claim a deduction.

Spousal Maintenance Eligibility

If followed to the letter, payments under Chapter 8 of the Family Code qualify for tax purposes. It is a popular myth that the payments must be periodic or equal; unequal or lump sum transfers may also qualify as alimony in a high-asset divorce.

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 Posted on August 06, 2015 in Divorce

In July 2015, a Bexar County district judge gave the green light for a same-sex divorce to proceed through the system. The case has enormous implications for high asset divorce cases in Travis County and elsewhere in Central Texas.

The women legally married in Washington in 2010, and subsequently settled in the San Antonio area. One partner was artificially inseminated in February 2013, and the couple separated later that year. The child's non-biological mother had not been allowed visitation, until Judge Renée Yanta entered temporary orders in the divorce case. The woman's attorney applauded Judge Yanta for "follow[ing] the law," adding that "in San Antonio and Bexar County we take the lead on these issues."

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 Posted on July 29, 2015 in Child Custody

Paternity is one of the most important concepts in the Texas Family Code. For mothers, it helps guarantee financial support for their children. For fathers, paternity is the only way to legally share in their children's lives; moreover, in most cases, only legal fathers can petition for child custody. Finally, for children, a paternity action gives the feeling that they belong to a family, regardless of who lives where.

Chapter 160 of the Texas Family Code, which is also known as the Uniform Parentage Act, sets out the procedure for establishing paternity. Unlike some other states that have administrative shortcuts that only settle a few issues, paternity in Texas is a once-and-for-all proposition.

Presumption

A man is presumed to be a child's father if they were married at the time of birth, or the child was born within 300 days of the marriage's legal dissolution. The same presumption applies if the couple voluntarily cohabitates for at least two years after the child's birth, or the man makes takes certain actions, including a verifiable promise to provide financial support and placing his name on the child's birth certificate.

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 Posted on July 22, 2015 in Complex Divorce

When asked for a quick definition of collaborative law, many attorneys may say something like "ongoing mediation." Although this synonym is not entirely inaccurate, it does not capture the essence of collaborative law nor does it explain why it is a viable alternative, at least in many cases.

To briefly summarize, collaborative lawyers work with the parties to resolve property division in a high-asset divorce, complex custody disputes, and related matters.

Structure

Almost everyone knows that divorce litigation takes place in a courtroom, where either a judge or a jury decides factual and legal issues. The attorney's role is to "win" the case by "beating" the other party, although these terms mean different things to different people in different cases. Mediation is typically part of the litigation process, although sometimes the parties simply go through the motions.

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 Posted on July 15, 2015 in Prenuptial Agreements

Purchasing a car is nearly always a happy experience. Buyers are understandably focused on the cars' features and their plans for years of freedom on the open road. Auto insurance is only a necessary afterthought. In some ways, marriage is much the same. The bride and groom are understandably focused on their love for each other and their plans for a life together. A premarital agreement is only a necessary afterthought. Although no one plans to get in a car wreck or get divorced, responsible owners, and spouses, should be prepared for any possible outcome.

Content

Especially in a second or subsequent relationship, a premarital agreement can put inheritance plans in writing, virtually eliminating the possibility of a future battle in probate court that no one really wants.

By and large, however, most premarital agreements focus on property division matters, and Chapter 4 of the Family Code lays out the parameters of these documents. A premarital agreement may address almost all property obligations and rights that may be part of a high asset divorce, including:

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 Posted on July 08, 2015 in Child Custody

All parents share a common goal: the best interests of the children. That being said, parents often have very different opinions of what is "best." Moreover, they often sharply disagree as to the methods used to achieve that common goal.

In terms of their approach, many lawyers are far too aggressive in child custody disputes. A court hearing is unlike some other forums, where the people with the loudest voices typically get their way. In fact, this approach often backfires. Many judges rightly believe that parents who recklessly attack the other side lack the co-parenting skills needed for a successful post-divorce parent-child relationship.

Controlled aggression, along with thorough preparation, often achieves the best results in complex custody actions. What evidence can support a party's arguments in court?

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 Posted on June 24, 2015 in High Asset Divorce

With the possible exception of the marital residence, a retirement account is typically the largest asset in a high net worth divorce. After years of saving and planning, it can be quite disconcerting to learn that a retirement nest egg is divisible just like any other marital asset. But, from both a legal and practical perspective, both spouses have made contributions to this account over the years, either by investing money in the plan or investing time in the marriage.

Most employer-sponsored plans, like a 401(k) or pension, require a Qualified Domestic Relations Order (QDRO); many IRAs can be divided without a QDRO. Many government-sponsored plans, most notably military retirement accounts, require a Division Order (DO), which is similar to a QDRO.

The Formula

In a typical 401(k) or other defined contribution plan, meaning that the level of benefits is tied to the plan's monetary value, a court will divide the portion of the account that is community property.

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 Posted on June 17, 2015 in Contested Divorce

Although the vast majority of Texas divorces are filed under the no-fault law, there are times that an evidenced-based action may be more appropriate, particularly in a high-asset divorce.

For many people, a no-fault divorce is not a good option for religious or moral reasons. An evidenced-based divorce helps them paint a picture of an out-of-control relationship which was far beyond salvaging. In a similar vein, some spouses may want to portray themselves as victims. There is another reason. Texas is rather unique in that a judge may consider fault in the marriage as a basis for an unequal property distribution. Specifically, "marital misconduct" is one of the listed factors to determine the amount and frequency of maintenance payments.

The grounds for divorce, as well as some possible defenses, are laid out in Section 6 of the Family Code.

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 Posted on June 10, 2015 in Spousal Support

To promote a more effective property division in a high asset divorce, Texas courts recognize and enforce two different types of spousal support.

Statutory Maintenance

The Legislature enacted Section 8 of the Family Code about twenty years ago, with the apparent intent to expand the law over time. But that no longer seems to be the case, as the edict has been expanded only once, and the political winds are now blowing in the opposite direction – Florida, New Jersey, Illinois and several other states have all significantly scaled back their alimony laws in recent years.

A judge may award limited alimony in limited circumstances. These restrictions include:

• Length of the Marriage: The union must have lasted at least 10 years. Marital fault is admissible, and an attorney can sometimes argue that the marriage would have lasted longer if not for the misbehavior of the offending spouse.

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