New Texas law bans child marriages (yes, you read that right!)

Texas Governor Greg Abbott signed into law a bill eliminating a loophole allowing child marriage. The new law prohibits people under the age of18 years from getting married unless they are emancipated minors. Minors are allowed to emancipate from their parents at the age of 16, so the youngest age a person may marry in Texas under any circumstance is now 16. The prior law permitted one parent to overrule another parent to allow a 16 year old to marry, and a parent could consent to the marriage of a child of any age with the approval of a judge without regard to wehther the child was being subject of abuse or coercion.

According to a Pew Research Center report, Texas has the second-highest rate of child marriage, with 7 out of every 1000 minors aged 15-17 were married in 2014. The national average is 5/1000. Between 2000 and 2014 almost 40,000 minors got married in Texas.

Here’s an article about this new law:


New Texas law bans application of foreign laws

Texas Governor Abbott signed into law House Bill 45 which states that Texas and U.S. law supersede all other laws. The law prohibits Texas judges from enforcing or upholding any law or order from another country that infringes upon U.S. and Texas constitutional rights. The bill shields litigants in family law cases “against violations of constitutional rights and public policy in the application of foreign law” under the U.S. and Texas Constitutions, federal and judicial precedent, the Texas Family Code, and the Uniform Child Custody Jurisdiction and Enforcement Act, among other protections. The law requires the Texas Supreme Court to adopt rules by January 1, 2018 to enforce the law, but it goes into effect on September 1, 2017.

I’m confident that the purpose the legislature intended was to prevent Islamic marriage contracts from being enforced as prenups in Texas. It was also designed to derail enforcements of agreements made in a settlement dispute resolution center in Dallas set up by the Islamic church to resolve family law matters. However, the law is much more broadly worded and may actually have the unintended effect of setting aside a foreign country’s judgment for child support or alimony or parenting time with a child if the foreign law considers a standard that differs from Texas law.

Here’s a link to an article about the new law:

Here’s a link to the Texas Legislature enrolled bill:


Income factors in evaluating financial life beyond divorce in an over-50 divorce

gray-divorce-issuesThe sources of income for an older divorcing spouse can look very different from younger counterparts. Here are some considerations:

  • Social security income: Social security is not a marital asset to be considered in the division of marital property. But, social security can be considered in examining a spouse’s cash flow for looking at property division or post-divorce maintenance. A person can begin to access social security benefits as early as age 62 or as late as age 70. And, a spouse or former spouse may get benefits based upon the other spouse’s social security contributions if the marriage lasted longer than 10 years and both spouses are over 62, the divorce has been over for two years, and the spouse seeking benefits has not remarried. The spousal benefit does not affect the amount the employed spouse receives.
  • Retirement plans: The age for receiving benefits from various types of retirement plans can vary by plan. Knowing the payment provisions for each plan in question may be essential to evaluating a spouse’s cash flow after divorce.
  • Passive Income: Passive income may include rental property income, dividends, interest income, and business interest distributions. Usually there are little restrictions on passive income, so these assets may be available immediately upon divorce.
  • Disability income: The sources of disability income may be a government plan, a private plan, or an employment benefit. Some may be taxable, while others are not. Most disability income is considered the separate property of the disabled spouse, but it remains important to know the terms of the individual plan to confirm.

One situation to watch out for is called the “double dip” where a spouse is required to divide or buy out a spouse’s interest in an asset as part of the division of property but then use that stream of income to provide post-divorce support. Thus, the same asset is being used twice for different purposes. This can happen to a family business, retirement benefits, and passive income.

Another possible landmine in senior divorces involves the issue of a person’s right to retire. What if the spouse always planning to retire at 55, but due to divorce or post-divorce support obligations is prevented from doing so by a court order? Or, what if the court determines to impute income to the pre-retirement level to provide post-divorce support for the other spouse?

The opposite of the right to retire early is the abiity to retire. After dividing half of the marital estate to the divorcing spouses, some may discover that they no longer have the ability to retire at age 65. Many may need to continue working in order to avoid a dramatic reduction in their planned retirement lifestyle.

Health issues provide another area where a senior divorce may be more complicated than another type of divorce. Health issues for the non-working spouse may be a ground for post-divorce maintenance support. However, health issues by the spouse with the assets or income could call to a halt any post-divorce support award. It may be better to evaluate awarding a spouse an asset that generates a stream of income rather than relying upon the continued post-divorce support of a spouse if health is a problem.

Another place for consideration with senior divorces is the increase in age-related expenses. Health insurance and medical costs increase with age. Additionally, a disabled spouse may require a caregiver, which also adds to the cash flow problems.

In support order for younger divorcing spouses, courts often order spouses to provide a life insurance policy to secure post-divorce support. However, in the situation of a senior divorce, life insurance may not be available to a spouse to purchase at a reasonable price if there is not already a policy in place.


SCOTUS rules on military retirement in Howell case

scotus judgesToday SCOTUS ruled on a family law case. Howell v Howell – unanimous ruling… Husband and Wife divorced over 25 years ago. Decree ordered Husband’s military retirement split 50/50 with Wife. When he actually retired, he waived part of his retirement in favor of disability pay, which reduced Wife’s portion. Wife sued for him to pay out of pocket the amount her part has been reduced. The court in Arizona agreed with Wife, but SCOTUS said No way! In an opinion written by Justice Breyer, the Court held that Uniformed Services Former Spouses Protection Act says courts can divide retired pay but not disability pay, even if it means the former spouse gets less money. The Court suggested that divorce judges address that upfront in the division of property if they are afraid a spouse will waive retirement pay in favor of disability pay.

Here’s link to SCOTUSblog about the ruling:

Texas Child Support 101: The Basics of Net Resources+ PART TWO

This is part 2 in a two-part series on the basics of net resources for calculation of child support.

Deemed Income

Deemed Income is a term we get from Texas Family Code Section 154.067:

“Deemed Income

(a)        When appropriate, in order to determine the net resources available for child support, the court may assign a reasonable amount of deemed income attributable to assets that do not currently produce income.  The court shall also consider whether certain property that is not producing income can be liquidated without an unreasonable financial sacrifice because of cyclical or other market conditions.  If there is no effective market for the property, the carrying costs of such an investment, including property taxes and note payments, shall be offset against the income attributed to the property.

(b)        The court may assign a reasonable amount of deemed income to income-producing assets that a party has voluntarily transferred or on which earnings have intentionally been reduced.”

We have all found ourselves at one time or another saying, “He has more damned income than that – I mean deemed income, Your Honor.”  Appellate Courts that have upheld child support awards which are alleged to exceed guideline support by recognizing countless sources from which income can be deemed.  The cases below barely scratch the surface.

Family Partnership – In Houston, the First Court of Appeals recently addressed the inclusion of a father’s phantom income from a family partnership in determining his child support.[1] Although the father and his mother testified that the partnership would not distribute any profits until her death or year 2052, the courts of appeals affirmed the trial court’s court inclusion of this phantom income, finding that the partnership agreement provides that “[a]llocations to the partner or partnership income and gain” increase a partner’s capital account.  Essentially, the court treated the father’s partnership interest like a retirement account which has value, but that value is not yet accessible (an assets that does not currently produce income).

Real Estate Partnership – Although the obligor claimed he did not physically receive cash distributions from these partnerships, the trial court appears to have deemed an undetermined amount of income from the real estate partnerships and oil and gas partnerships and the Fourteenth Court of Appeals upheld the ruling stating that a trial court is allowed to “assign a reasonable amount of income attributable to assets that do not currently produce income.”[2]

Employment Expenses – The Dallas Court of Appeals imputed income from employment-related expenses being paid by the obligor, including vehicles, oil, gas, insurance, and maintenance, travel expenses, entertainment expenses, housekeeping, and care for the obligor’s livestock and pets.[3]  The obligor did a good job of detailing these expenses and removing them from his gross income, but the trial court did a better job of adding them all back in when determining his net resources.

Employee Benefits – Use of car, paid car insurance, and expense accounts were all determined to be non-cash employment benefits from which income can be deemed by the trial court and court of appeals affirmed.[4]

Gifts / Scholarships – The First Court of Appeals addressed whether monthly net resources on an obligor (college student) included support from his family and athletic scholarships.[5]  The trial court assigned a cash value to the gifts and scholarships being received by the obligor, determining his net resources to be $2,000.00 per month.  The court of appeals affirmed.

Beyond the Guidelines

A child support order conforming to the guidelines is presumed to be in the best interest of the child.[6] But, when justified, the code allows the court to order child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies variance from the guidelines.[7]  That means if you can give the court a specific reason why application of the guidelines would be “unjust or inappropriate” under your client’s facts, the court can deviate.[8]  When determining whether deviation is justified, best interest comes first, but the rest of the standard depends on whether the obligor makes more or less than $8,550 in net resources per month.

Best Interest of the Child

When determining whether to deviate from the guidelines, the court will always first look to the best interest of the child.[9] “The ‘best interest of the child’ shall always be the trial court’s primary consideration in determining questions of child support. Trial courts have wide discretion in determining the best interest of the child.”[10]

Net Resources of Obligor Less Than $8,550

The child support guidelines were written to apply in situations in which the obligor’s net resources are less than $8,550 per month, in which case the court is required to presumptively apply the percentages set forth in the guidelines when rendering a child support order.[11]

Net Resources of Obligor Greater Than $8,550

The guidelines tell us that when an obligor has net resources in excess of $8,550 per month, guideline percentages apply to the first $8,550 of the obligor’s net resources, and the court may order additional amounts of child support depending on the income of the parties and proven needs of the child.[12] Unlike the list of factors the code provides when an obligor has monthly net resources of $8,5540 or less, other than “income of the parties and proven needs of the child”, they provide little to no guidance on what should be considered when an obligor’s monthly net resources are in excess of $8,550.    


When preparing to seek support beyond the guidelines, re-read the code and then think outside the book.  The more evidence presented on the obligor’s abilities to support, resources of the obligor, assets available for support, assets that could produce income, and the proven needs of the children – the better chance you have at getting the deviation your client needs.

[1] Matthews v. Northrup,  2010 WL 2133910 (Tex. App.—Houston [1st Dist.] 2010, pet. filed Oct. 6, 2010) (memo opinion).

[2] Roosth v. Roosth, 889 S.W.2d 445, 455 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

[3] Anderson v. Anderson, 770 S.W.2d 92, 96 (Tex. App.—Dallas 1989, no writ).

[4] Golias v. Golias, 861 S.W.2d 401, 404 (Tex. App.—Beaumont 1993, no writ).

[5] In re L.R.P., 98 S.W.3d 312, 313-15 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d); But see Ikard v. Ikard, 819 S.W.2d 644 (Tex. App.-El Paso 1991, no writ), and Tucker v. Tucker, 908 S.W.2d 530 (Tex. App.-San Antonio 1995, no writ) (both finding that “gifts” should not be included in determining resources).

[6] Tex. Fam. Code §154.122(a).

[7] Tex. Fam. Code §154.123(a).

[8] Tex. Fam. Code §154.122(b); see also Tex. Fam. Code §154.130.

[9] Rodriguez v. Rodriguez, 860 S.W.2d 414, 418 (Tex. 1993).

[10] Clark v. Jamison, 874 S.W.2d 312, 316-17 (Tex. App.—Houston[14th Dist.] 1994, no writ).

[11] Tex. Fam. Code §154.125(b); see also Tex. Fam. Code §154.122.

[12] Tex. Fam. Code §154.126(a).

Texas Child Support 101: The Basics of Net Resources PART 1

This is Part 1 in a two-part series on the basics of net resources for the calculation of child support.

To calculate current child support, courts must (1) determine the amount of the obligor’s income available for support (“net resources”), apply the child-support guidelines to the obligor’s net resources to determine guideline support, and (3) consider any additional factors that might justify deviating from the guidelines and adjust the support as appropriate.  When looking at these factors, it is clear that an attorney’s time would be best spent by focusing on the net resources aspect of the calculation.

Here I address net resources as defined under the Texas Family Code and several important child support issues related to net resources that have been addressed by the Texas Supreme Court and various intermediate appellate courts. Maybe these cases will help you bulk up net resources beyond the guideline basics.

Child Support

The purpose of child support is to help a custodial parent maintain an adequate standard of living for a child. Farish v. Farish, 982 S.W.2d 623, 627 (Tex. App.-Houston [1st Dist.] 1998, no pet.). A parent’s child support obligation is not limited to that parent’s ability to pay from current earnings, rather it extends to his or her financial ability to pay from any and all available sources. McLane v. McLane, 263 S.W.3d 358 (Tex. App.-Houston [1st Dist.] 2008, pet. denied).

Net Resources

When looking for ways to maximize net resources, start with section 154.062 of the Texas Family Code.  The code provides a list of about twenty-six sources of income that are to be considered when determining an obligor’s net resources.  These include: (1) wages, (2) salaries, (3) commissions, (4) bonuses, (5) overtime, (6) tips, (7) interest, (8) dividends, (9) royalty income, (10) rental income, (11) severance pay, (12) retirement benefits, (13) pensions, (14) trust income, (15) annuities, (16) capital gains, (17) social security (excluding supp. income), (18) unemployment, (19) disability, (20) worker’s compensation, (21) interest on notes, (22) gifts, (23) prizes, (24) spousal maintenance, (25) alimony, and (26) self employment income.

Most of these are fairly straight forward and easy to calculate, however, others are not. Let’s think about the following:

  1. How do you calculate the net resources of an employee paid hourly?
  1. How do you calculate the net resources of a self-employed individual that deals mainly in cash?
  1. What about a salesman whose income is less than consistent?
  1. College student/athlete that does not work?
  1. What about a member of a partnership that never pays distributions?

Next, look at some sources of income that are not specifically included on the list, but that courts have found to be included in an obligor’s net resources.

Inheritance – The Dallas Court of Appeals recently addressed the inclusion of an inheritance in the net resources of an obligor for the purposes of calculating child support. In re P.C.S., — S.W.3d –, 2010 WL 3171767 (Tex. App.—Dallas 2010, extension to file petition for review granted Sept. 30, 2010). Although the trial court concluded that a cash inheritance received by the obligor of about $400,000 was not included in the statutory definition of “net resources” for the purpose of setting his child support obligation, the Dallas Court of Appeals reversed the trial court.  The appellate court concluded that a cash inheritance from a third party paid to the obligor of child support is a “resource” under the inclusive language of Texas Family Code Section 154.062(b)(5).

Personal Injury Award – Can one-time personal injury settlement awards be considered in determining net resources?  The First Court of Appeals recently upheld a trial court’s consideration of a personal injury settlement in determining net resources available for child support. Smith v. Hawkins, 2010 WL 3718546 (Tex. App.—Houston [1st Dist.] 2010) (memo. opinion).

Alimony – Can a reduction in alimony being paid lead to an increase in support?  Possibly. Thomas v. Thomas, 895 S.W.2d 895, 897-98 (Tex. App.—Waco 1995, writ denied). In Thomas, the trial found that the obligee’s income had decreased nearly 88% due to termination of alimony and the children’s proven needs were significant. The court increased the obligor’s child support from $1,250 to $3,000 per month.  The court of appeals affirmed.

Tax Credits – Can the court include tax credits, like depreciation, in determining net resources?  The Forth Worth Court of Appeals added the depreciation taken in prior years back into the obligor’s gross income to determine his gross income for the purpose of calculating child support. Laprade v. Laprade, 784 S.W.2d 490, 493 (Tex. App.—Fort Worth 1990, writ denied).


When the income being earned by an obligor, or lack thereof, is significantly less than the obligor’s earning capacity, always question whether that parent is intentionally unemployed or underemployed. Courts may impute income to an obligor based on the obligor’s earning potential, however, the unemployment or underemployment must be intentional. Tex. Fam. Code §154.066. Some court have held that in  addition to being intentional, the court must determine whether unemployment or underemployment is maintained for the purpose of decreasing resources available for child support, while other have declined to recognize such a requirement.  In re P.J.H., 25 S.W.3d 402, 405-06 (Tex. App.—Fort Worth 2000, no pet.); McLane v. McLane, 263 S.W.3d 358, 362 (Tex. App.—Houston [1st Dist.] 2008, pet. denied);  Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2010) (finding that such a requirement ignored the plain language of Tex. Fam. Code §154.066).

Incarceration – Can acts that led you to become incarcerated be considered intentional acts which lead to unemployment?  Several appellate courts seem to say – yes. Slaughter v. Slaughter, No. 13-99-497-CV, 2001 Tex. App. LEXIS 2783, at 6-8 (Tex. App.—Corpus Christi 2001, pet. denied) (memo. opinion); Reyes v. Reyes, 946 S.W.2d 627, 628-30 (Tex. App.—Waco 1997, no writ); Hollifield v. Hollifield, 925 S.W.2d 153, 156 (Tex. App.—Austin 1996, no writ).  In Slaughter, the trial court refused to reduce the obligor’s child support, finding that the acts which landed him in prison were intentional and that he had other assets of minimal value from which support could be paid if necessary.  The court of appeals found no abuse of discretion.

Retirement – Can retirement be a form of intentional unemployment?  Again, several appellate courts seem to say – yes. Smith v. Detrich, 2010 WL 143287 (Tex. App.—Austin 2010, no pet.) (memo opinion); In re S.B.C., 952 S.W.2d 15 (Tex. App.—San Antonio 1996, no writ). In both Smith and S.B.C., the obligors had elected to retire from the military, remain unemployed, and had skills to obtain employment.

A brief review of the case law available on intentional unemployment and underemployment shows that courts often impute income base on intentional unemployment or underemployment, and that appellate court rarely find such to be an abuse of discretion.  Most often, evidence of intentional unemployment or underemployment can be shown by the obligor’s earning in the past.  Accountants are not limited to tracing – they can testify concerning earning capacity of an obligor within a specific field.  The United States Department of Labor publishes average earning information for nearly every occupation in existence.  The information can be found online at


Next week my post will discuss deemed income and child support beyond the guidelines.

Representing “seasoned” divorce clients – divorce at age 50 and beyond

graydivorcelightningDivorces among clients over the age of 50 are becoming more prevalent as baby boomers age. They balk at the terms “gray divorce” or “senior citizens”. The best term to use may be “seasoned”, according to an article by Paula G. Kirby in the latest issue of the Family Advocate by ABA Section of Family Law.

Seasoned divorces require certain considerations.

  • Some seasoned clients may need special accommodations for mobility, hearing, and vision loss or emotional or mental challenges.
  • Capacity or diminished capacity concerns.
  • Confidentiality and third party participation by family and friends.
  • The need for support and assistance for the client.
  • Obtaining financial, medical, and other information from professionals with joint representation of both spouses.
  • Handling the stress of protracted settlement negotiations or a long day at mediation.
  • If the client has issues with hearing or sight, make an ADA accommodations request of the Court for a device to increase sound or a projector to help with sight.
  • Releasing attachment to the attorney when the case is concluded.


Social media: think before you post

social media postFor all of the good that social media brings, it has the ability to sink a family law or divorce case with one post. When you are going to make a post, you should think, what does this post say to the Court? Who is the audience of people who will read my post?

Custody battles and divorces are stressful and are rarely fair. You will experience every emotion there is at just about any moment. That does not mean you should post about them. It is okay to get angry, it is okay to get upset or to feel hurt. Controlling those emotions and reactions is part of being a responsible adult and can be crucial for a case. It is imperative that a party has outlets for their emotions other than social media.

Party’s who understand technology are at a major advantage. This goes beyond financial statements and phone records. Social media technology has enhanced the ability to capture a moment and freeze it in time. In an instant, a party can create a screenshot of a lapse in judgment that may have only been posted for a few seconds. No apology post can explain it away because the damage has already been done. Party’s need to be aware that any one of your friends can give evidence to the other party. Even privatizing your posts will not protect you, and can actually hurt you. In other words, judgment, fitness and capacity are now able to be viewed for the over poster around the clock.

A party really needs to think before they post. Be it a check-in, a photo, a meme, anything that is shared through social media, a party must ask, what would the Judge in my case think if they saw this? Treating every post as if the judge is going to see it, is a good policy. Courts only get a snapshot of a party’s life, make sure the snapshot is accurate and paints you in a positive light.

A quick guide of posts not to make: posts at a bar or with alcohol; posts ripping or blaming the other parent or the court; posts that are vague or passive aggressive; posts about your mental health; posts about your children being a drag; and for divorcees, posts of a date with someone other than the person you are divorcing. It is still adultery until the divorce is finalized.

The best policy is to not post at all, or to focus solely on positive things. This may seem like common sense, but the amount of Facebook posts, Tweets, Snaps, Instagram posts and more that are shown in court continue to grow, and not because opposing counsels are trying to say how amazing a mother the party is.

Social Media is not a place to air dirty laundry. Courts view that as irresponsible and poor judgment. Two traits that do not reflect well in most cases.

So remember, think before you post, comment, share, tag, tweet, snap or what have you, and then, don’t do it.


What is Advocacy

Dean TobeI received my quarterly issue of the Baylor Law School Docket Call alumni magazine. This issue was great with several interesting points. My favorite part was Dean Brad Toben‘s column on advocacy. He says, “One of the fundamental principles of a lawyer is to serve as an advocate. Advocacy is standing up for your client, fighting for your client, and protecting your client’s rights.”

He goes on to point out examples of lawyers throughout history that have represented clients who might have had issues distasteful to society, but served them anyway simply because everyone deserves an advocate. He cites to John Adams who represented the despised British soldiers in the aftermath of the Boston Massacre. Adams knew he would be scorned by society, his law practice would be impaired, and he would endure hardship. He did it anyway.

Did you know that Baylor Law School ranks 3rd in the country for trial advocacy according to the U.S. News & World Report and 51st in the country for Best Law Schools? Read Baylor’s press release here. Baylor is the only Texas law school even in the Top 10 for trial advocacy category!

Here at O’Neil Wysocki we have three Baylor lawyers on staff. We love Baylor and appreciate the trial advocacy skills we learned there! Sic ’em Bears!

What do April 1st and April 15th have in common? Summer designations!

DadAndDaughterWalkingOnBeach185To some, April 1 and April 15 mean nothing more than practical jokes and another day of the month. To others, they are the dates by which one parent must give the other parent notice of the summer plans. While some may not want to plan their summer so early in the spring, it is imperative that parents that are subject to these arbitrary dates be mindful of them as they approach.

Standard Possession Order

The Standard Possession Order in the Texas Family Code provides that the non-custodial parent provide notice to the other parent of their summer designation by April 1. If designation is not made [in the case of the thirty-day summer possession], then the default provides that that parent will be designated the month of July. After the April 1 designation is made or defaulted, the custodial parent must make their summer designations by electing – (1) one weekend within the non-custodial parent’s extended summer possession to have the child from Friday to Sunday, and (2) one weekend of the non-custodial parents’ otherwise first, third and fifth weekends in the summer that they are entitled to trump, so to create their extended summer possession.

While the foregoing is what the Standard Possession Order [within 100 miles of the primary residence of the child] provides for, each possession order may have its own nuances that may affect the summer designations.

Custom Possession Orders

If you do not exercise a Standard Possession Order as described above, chances are that there are still summer possession provisions in your order that includes dates by which notice has to be given; all too often, these dates are also April 1 and April 15. Be sure to read the summer possession provisions of your order as some possession orders alternate even-year and odd-year elections, and some possession orders do not have default dates for failure to give notice. In the case where the order does not include default dates for failing to give notices, some courts have deemed the failure to give notice as a waiver of that year’s summer possession.


Be sure to read the entire order and provide notice in the manner specified in the order. Notice may be limited to or inclusive of any of the following methods for delivery – hand-written notice, e-mail, text message, mail or co-parenting messaging services (i.e. Our Family Wizard).


Once notice is given, through April 1 and April 15, both parents are entitled to rely on those notices for each period of possession stated. The parent receiving notice [unless otherwise stated in the order] does not get to veto the notice and summer election of the parent sending notice. Both parents must acknowledge the notices provided by the other parent and surrender possession accordingly or they could be subject to being held in contempt for withholding possession.