Texas Spousal Support – Post Divorce Maintenance
Under Section 8.051 of the Texas Family Code, a court shall order maintenance for either spouse only if:
1. the spouse for whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
a. within two years before the date on which a suit for dissolution of marriage is filed; or
b. while the suit is pending; or
2. the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
a. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
b. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
c. clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.
Section 8.052 of the Texas Family Code states that a court shall determine the nature, amount, duration, and manner of periodic spousal maintenance payments by considering all relevant factors, including the following:
1. the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;
2. the educational and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
3. the duration of the marriage;
4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
5. the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
7. the comparative financial resources of the spouse, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
8. the contribution by one spouse to the education, training, or increased earning power of the other spouse;
9. the property brought to the marriage by either spouse;
10. the contribution of a spouse as homemaker;
11. marital misconduct of the spouse seeking maintenance; and
12. the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.
Section 8.053 states that except as provided by Subsection (b), it is presumed that maintenance under Section 8.051(2) is not warranted unless the spouse seeking maintenance has exercised diligence in:
1. seeking suitable employment; or
2. developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because the spouse:
1. has an incapacitating physical or mental disability;
2. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.
Except as provided in subsection (b), a court:
1. may not order maintenance that remains in effect for more than three years after the date of the order; and
2. shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of:
a. physical or mental disability;
b. duties as the custodian of an infant or young child; or
c. another compelling impediment to gainful employment.
If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because the spouse has an incapacitating physical or mental disability or because the spouse is the Custodian of a child of the marriage of any age who has a physical or mental disability, the court may order maintenance for as long as the disability continues.
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
1. $2,500; or
2. 20 percent of the spouse’s average monthly gross income.
The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the oblige, considering employment or property received in the dissolution of the marriage or otherwise owned by the oblige that contributes to the minimum reasonable needs of the oblige.
Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.
Fathers Have Rights: Establishing Paternity
Paternity is defined as the quality or state of being a father. Many issues arise in the face of a father being denied access to his child or wondering if he is truly the child’s father. Where paternity of a child is in question, a mother or alleged father may ask the court to determine paternity of one or several possible fathers.
Most paternity actions involve a child born out of wedlock. However, paternity actions also occur between married persons where someone other than the husband is the father of the child, or where the husband has fathered a child outside of the marriage. There is a presumption that a child born to a married woman is the child of the husband. However, this presumption can be overcome by DNA or other valid evidence.
If you are questioning paternity, think about when the child could have been conceived. Consider when you had relevant or timely intercourse. Understand that paternity is determined by testing DNA from the father and the mother through the use of genetic fingerprinting.
DNA testing is done by drawing blood or by taking a buccal swab, when cells are wiped from the inside of the mouth with a cotton swab. These tests can determine the father of a child with up to 99% accuracy. DNA testing is currently the most advanced and accurate technology to determine parentage.
Generally paternity testing is paid for by the father.If you file a paternity suit, you can request the court order DNA testing. A court may order the mother, father and the child to submit to testing. Paternity testing can be done during pregnancy or when the child is as young as one day old. Paternity proceedings can be filed by the alleged father, mother, child or child support division of a state. A private action for paternity is usually prosecuted to secure child support payments from the father, parenting time with the child, and/or fair rights and privilege allocation.
Some men are confident that they are the biological father and wish to maintain a legal relationship with the child whether or not they are the father and thus either initiate paternity actions or consent to the entry of a paternity order. The paternity order entitles the father to visitation time with the child and creates a legal duty for the father to provide for the support of the child in addition to awarding him rights and privileges regarding the child’s future development.When you consent to the entry of a paternity order, absent fraud, you consent for life. Most jurisdictions will not allow you to escape the consequences of that order, including the requirement of payment for the support of the child.
If there is a chance that you will resent the child, or wish to break off the relationship with the child or, if you ultimately learn that you are not the child’s biological father, make certain you obtain a DNA test before legally admitting and therefore confirming that you are a child’s father. Custody of a child can either be awarded to the father or the mother in a paternity action depending on the facts. Child support in a paternity action is generally set according to state law standards unless the parties sign an agreement providing for the payment of child support that is approved by the court.
Reasons to establish paternity:
- to provide the child with a needed identity; to confirm rights
- privileges and duties of a parent
- to know the health history of both the mother and father for medical care and treatment of a child
- establish financial support for the child
- establish health insurance coverage
- social security eligibility
- inheritance and other benefits
- and seek public assistance where qualified
Active Military Duty: How Will It Affect My Relationship With My Child?
Beginning September 1, 2009, under new Texas legislation the courts have a right to temporarily amend certain existing orders concerning a parent who is ordered to military deployment, military mobilization or temporary military duty.
If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to his or her child, either conservator may file for an order under subchapter (a) of Section 153.702 of the Texas Family Code.
The Court may then render a temporary order in a proceeding under this subchapter regarding:
1. possession of or access to the child; or
2. child support.
A temporary order of the court under this subchapter may grant rights to and impose duties on a designated person (with certain limitations) regarding the child, except the court may not require the designated person to pay child support.
After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order that was applicable before the conservator was not ordered to military deployment, military mobilization, or temporary military duty.
Further, if the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may order appointment of a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
1. the conservator who does not have the exclusive right to designate the primary residence of the child;
2. if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
3. if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.
A designated person named in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371 of the Texas Family Code.
The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate for the best interest of the child.
If the court appoints the conservator without the exclusive right to designate the primary residence of the child, the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.
1. The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order.
2. The temporary order for visitation must provide that.
a. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date of temporary order.
b. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316(a) with the designated person considered for purposes of that section to be the possessory conservator;
c. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
d. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
3. The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate for the best interest of the child.
If the parent without exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by such conservator if the visitation is in the best interest of the child.
The temporary order for visitation must provide that:
1. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;
2. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
3. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and
4.the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate and as is in the best interest of the child.
Father’s Rights: Visitation Enforcement
What is needed for visitation enforcement?
1. A valid court order that has been signed by a judge or issued by the district clerk’s office, certified as having been signed by a judge.
2. Be sure to read your order thoroughly. If you do not understand any of the provisions, take it to an attorney and have them explain it to you.
3. The custodial parent must have been validly served with the court order or it must be shown that the they had prior knowledge of the court order and its content.
4. The custodial parent must have full knowledge of the above two factors and must be intentionally and willfully violating the court order.
Despite the fact that you may have a valid court order, many police departments do not want to get involved in enforcing civil orders. If you call the police department and show them the order they may or may not assist you in gaining access to your children. Despite whether you get your children or not, you need to ask them to create a police report stating that you were there to pick up your children and noting the time and date you were present. If the police refuse to prepare a report, go to a local grocery store or fast food restaurant and purchase something so that you have a receipt stating that you were in the area and stating the date and time you were there.
How to prove a denial of visitation.Take a witness along with you – preferably an off-duty constable or deputy or neutral party. Have your witness stay in the vehicle, but with the window down so that he/she can hear any conversations that take place. Have your vehicle parked in such a way that the witness can see you at all times.
Take a copy of your divorce decree along with you which shows you are suppose to have possession of your children on the date and time you arrive to pick them up.
Always be on time, and if possible a few minutes early.
If the custodial parent does not answer the door or have the child available to exercise visitation then call the police and request a Police Incident Report. If the police will not issue a police report then make sure you document the incident as best as possible. After two or three violations, take the reports, along with any witness statements, to an attorney to discuss how to bring an enforcement action against the custodial parent who is violating the order.
Take a tape recorder with you, have it running from the time you approach the residence, and do not stop it until you leave. Keep the tape recorder running as you leave the area.
As you approach the residence state the following facts in the recorder: your complete name, the address you are approaching, the reason you are there “I am going to pick up my children as stated in the final decree,” state who is with you and why, state the time of day, state when you are leaving and a brief description of what occurred. Keep a written record of each recording and label them according to date.
Keep a calendar of each denied visitation.
Make sure you have a credible witness each time you try to exercise your possession with your children.
Do not argue with your ex-spouse regardless of how angry you are or whether you get your children or not. Staying calm will work in your favor in the long run.
If you file an enforcement action, if the custodial parent continues to deny you visitation after the suit is brought, continue to go and knock on the door to exercise your visitation, as each separate violation of the court order can be used in the enforcement action.
A Father’s Rights
Courts, legislatures and juries are becoming more aware of the necessity of father’s being involved in the lives of their children. Children with positive father involvement have fewer behavior problems, higher levels of sociability, and perform better in school.
Recent research suggests that father involvement during pregnancy affects multiple areas of child and family well- being, from prenatal care initiation and mother and child health outcomes, to the likelihood that the father will provide ongoing financial and emotional support. This body of research is gaining momentum. Local and regional governmental agencies are focusing more and more on parental father involvement in the lives of children.
As a result of the changes taking place in society today, the Courts are now recognizing a father’s ability to care for his children as becoming equal to that of the mother. Starting out on an equal plane, the Court may look to which parent is more stable, has a superior income, has a parenting plan in place for the child and is capable of providing proper child care and spending more quality time with the child.
If a father ignorantly gives up rights to his children based on prejudices of the past in the Court system he can feed a mother’s confidence and sponsor unnecessary ongoing litigation. The number one mistake made by father’s in the court system today is a failure to take the time to learn how the system works. Failing to learn how the family law system works may doom your case. Once you have learned the ins and outs of the family law system you will need to form a plan, set goals and never relent in enforcing your rights as a father.
Five of the biggest mistakes men make in a legal action are: 1) failing to respond to the legal action itself; 2) obtaining incorrect legal advice (from friends and family rather than a legal expert); 3) signing a settlement agreement they are not in agreement with and later deeply regretting it; 4) failing to perform under the actual settlement agreement signed; and 5) getting frustrated and/or acquiescing to unreasonable orders.
Some of the things you may want to consider as you prepare for the custody battle are as follows:
1. Who has the financial ability to best care for the child(ren)? Be sure to have income tax verification, W-2 Forms and other financial information available.
2. Form a parenting plan (child care, after school care, transportation, pediatrician, etc.).
3. Who is more stable and/or can provide the best home for the child(ren)?
4. Where has the child(ren) been attending school? Is it possible to keep the child in the same school district?
5. Prepare a chronology of events leading up to the divorce including treatment of the child(ren), time spent with the child(ren), activities with the child(ren), the child(ren)’s schedule.
6. Consider if a home study should be prepared regarding each home of the child.
7. Consider whether a psychological evaluation should be done on the mother?
8. Is drug testing necessary? (Be sure to request hair follicle drug testing.)
9. Is there an alcohol or other addiction problem in the home?
10. Who can provide the best moral upbringing for the children?
11. Is there evidence such as pictures, video tapes, etc. that may help your case?
12. Avoid unnecessary compromising photos or data on Facebook or other social networking sites.
List any other relevant issues you feel may be important to your case before you meet with an attorney.
The most important thing to remember is that your failure, if based on dated concepts and inapplicable worn out prejudices, will be her victory and your parental failure.
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
