When can private school tuition be ordered?

The Texas Family Code awards child support based on the monthly net resources of the obligor.  Tex. Fam. Code §§154.125-.126.  The calculation of net resources includes 100 percent of all wages and salary income and other compensation for personal services (including commissions, overtime pay, tips and bonuses).  Tex. Fam. Code §154.062(b)(1).

The Texas Family code presumes that child support according to the guidelines is in the best interest of the child, the court can deviate from the guidelines or order additional child support as deemed in the child’s best interest. The Family Code provides a bifurcated analysis in setting child support, depending on whether an obligor has net monthly resources above or below $8,550. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993); Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); Tex. Fam. Code §§154.123, 154.125,154.126.

In applying the bifurcated analysis, the Texas Family code provides that when obligor’s net resources fall below $8,550 per month, the court may  deviate from the presumptive guidelines when setting child support in the following manner:

(a) The court may order periodic 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 a variance from the guidelines.

(b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:

(1) the age and needs of the child;

(2) the ability of the parents to contribute to the support of the child;

(3) any financial resources available for the support of the child;

(4) the amount of time of possession of and access to a child;

(5) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6) child care expenses incurred by either party in order to maintain gainful employment;

(7) whether either party has the managing conservatorship or actual physical custody of another child;

(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9) the expenses for a son or daughter for education beyond secondary school;

(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12) provision for health care insurance and payment of uninsured medical expenses;

(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14) the cost of travel in order to exercise possession of and access to a child;

(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16) debts or debt service assumed by either party; and

(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

Tex. Fam. Code §154.123.

When the court finds that a child support obligor’s statutory net resources exceeded $8,550 per month, section 154.126 of the Texas Family Code applies. This statute provides:

(a) If the obligor’s net resources exceed the amount provided by Section 154.125(a), the court shall presumptively apply the percentage guidelines to the portion of the obligor’s net resources that does not exceed that amount. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.

(b) The proper calculation of a child support order that exceeds the presumptive amount established for the portion of the obligor’s net resources provided by Section 154.125(a) requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

Tex. Fam. Code §154.126(a) & (b)

To establish private school as a proven need, the evidence must show something special that makes the particular child need or especially benefit from some aspect of non-public schooling. In re M.A.M., 346 S.W.3d at 17. In M.A.M, concluded specifically that there was no evidence that private school was a proven need where the parties testified that they were looking into available public schools. Id at 18.

The Texas Supreme Court has declined to define the term “needs.” But it does not include lifestyle or ability to pay. The proven needs of the child includes more than the bare necessities of life. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993).

The leading case addressing needs of the child when the child might suffer from learning disabilities is In the Interest of Pecht, 874 S.W.2d 797, 801–02 (Tex.App.-Texarkana 1994, no writ). In that case, the children had a very long list of diagnoses and treatment recommendations:

  • Both children required psychotherapy;
  • Both children diagnosed with ADHD;
  • One child had numerous issues:
    • a severe language learning disability;
    • suffered from an inability to control his nervous system;
    • was aggressive with others;
    • and unable to manage his emotional state.
  • Both children needed family therapy sessions on a continuing basis.
  • Both children needed group therapy on a continuing basis.

The court found that ordering child support above guidelines was appropriate under those facts.

Who gets the sick kids after Thursday overnights?

You’re the possessory conservator of your children and it’s Friday morning. You’ve just had your kids overnight for your Thursday period of possession, and the kids are sick.  No school for them that day. You’re willing and able to stay home with the kids to care for them, and it’s your weekend possession beginning later that day after school anyway.  Can you stay home with your kids?

It depends. First and foremost, you need to read your order carefully. It likely contains a notice provision that states that if the children are not returned to school the next day, that you must notify the other conservator immediately.  Also, if your period of possession ends at the time school begins, then from the time school begins until the time it ends that day is not your period of possession. The children must be returned to the other conservator.  Look for language in your order that states all periods of possession not specified as yours are the other parent’s periods of possession by default, or something to that effect.

It may be that a text or email to the other parent to obtain their agreement (get it in writing!) for you to keep your kids that day will solve things. However, if the other parent does not agree, you will need to return the kids to him or her at the time school would resume for the day and then pick them up later at the time school ends at his or her residence.  Failing to notify the other parent, and failing to return the children to the other parent, may subject you to an enforcement action.  It’s not worth it.

There is some disagreement among practitioners on this issue. Some feel that the possession automatically reverting back to the primary conservator is nonsensical.  There is perhaps an argument to be made here that the change is not in the child’s best interest, especially if the child is sick. However, it is still safer to stick to the provisions as they are contained in your order rather than risk an enforcement. Also, if you are the primary parent and your child has not been returned to you in this type of situation, you may want to have a conversation with the other conservator prior to filing an enforcement. Judges would much rather parents work these things out than waste the court’s time.

Divorce the house or the spouse

Is it easier to get rid of the spouse or the house? 

In many Texas divorces, the house is one of if not the major asset to divide in the property division part of the divorce. And it causes some of the most friction between the divorcing spouses. Maybe the spouse wants to try to keep the house; or, maybe the spouse wants to sell the house and take a share of the sales proceeds to buy a new house. It is important to make decisions about the house that are not based on pure emotion. The financial realities are important as well.

Here are some questions important to making decisions about what to do with the house in divorce:

  • What is the fair market value of the house?
  • How much equity is there in the house (value less debt)?
  • How much is the monthly payment on the house?
  • Are taxes and insurance escrowed or will those need to be paid annually from other funds?
  • Is the spouse that wants to keep the house employed making sufficient income to meet the financial commitment of the house?
  • What other assets are available in the division to accommodate awarding the house to one spouse?
  • Are there cash assets available to cover other emergency expenses?
  • How will maintenance be handled?
  • Is there a reason to refinance the mortgage?

Sometimes it is helpful to have the spouse who wants to keep the house meet with a financial planner to evaluate cash flow and asset management. This person can help the spouse decide if keeping the house meets with that spouse’s long term financial goals.

In Texas, generally a judge cannot order a spouse to refinance the house. Where the mortgage debt is incurred by both parties, both parties will continue to be named on that debt afterwards. The spouse agreeing to pay for the house will usually execute a deed of trust to secure the assumption of the mortgage. This document gets filed in the deed records and provides the exiting spouse a remedy if the other spouse fails to make the payments.

Another problem to consider in deciding what happens to the house is that post-divorce, many people — especially women — have a lower credit score after divorce than during the marriage. Combine this with the reality that a single person has one income versus the possible double income of two working spouses, so after divorce, it may  not be as easy to get approved for the mortgage to buy a new house.

There are many factors that need to be considered surrounding the house in a divorce. The advice of a good divorce lawyer and even a financial planner can be very helpful in making these decisions.

Hat tip: It’s Harder to Divorce the House than the Spouse by Ashley Tate Cooper

Business records of a marital household – exception to hearsay

In family law cases, issues often arise regarding the admissibility of records that are maintained by a spouse or the household, like bank statements or children’s school records. Hearsay rules might seem to prevent admissibility of these documents unless they come directly from the bank or school. But that’s not the case.

Rule 806(6) permits records created by a third party person or entity to become the business records of another entity if the sponsoring witness has knowledge of the events recorded in the third party documents. The Texas Supreme Court reaffirmed this notion in the Duncan case, where the invoices of subcontractors became an integral part of the general contractor’s records showing the work, progress, and costs of the construction. Duncan Development Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982).

And, the personal records of a family can constitute business records. “…[P]rivate records, if kept regularly and if incidental to some personal business pursuit, are competent evidence.  Sabatino v. Curtiss National Bank, 415 F.2d 632 (5th Cir. 1969, pet. denied). There, check records, even if kept by an individual, clearly meets the test of trustworthiness and is routinely entered and checked record of fact, used to compute funds remaining in one’s account, which the maker would have no motive to falsify. Id. The definition of “business” under the evidence code is broader than the ordinary use of the term. “’Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.” Tex. R. Evidence 803(6).

The 1st District Court of Appeals in Houston provides a three prong methodology for determining whether a third party’s records may become part of another entity’s records as an exception to the hearsay rule. Those three tests are:

  1. The records of the third party have been incorporated and kept in the regular course of the testifying witness’ business;
  2. That business reasonably relies upon the accuracy of the third party’s documents; and,
  3. Circumstances exist indicating the trustworthiness of the third party documents.

Bell v. State, 176 S.W.3d 90 (Tex. App. – Houston [1st Dist.] 2004, pet. ref’d.). The following courts have upheld the Bell test:

  • Houston 1st Court: Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App. – Houston [1st Dist.] 2010, no pet.);
  • Austin: Ruper v. CitiMortgage, Inc., No. 03-11-00887-CV (Tex. App. – Austin 2013, pet denied);
  • Dallas: Nat’l Health Resources Corp. TBF Fin., 429 S.W.3d 125 (Tex. App. – Dallas 2014, no pet)
  • Houston 14th Court: Ainsworth v. CACH LLC, No. 14-11-00502-CV (Tex. App. – Houston [14th Dist.] 2012, pet denied);

The Dallas Court has also since affirmed this concept of household business records. The case of Castillon v. Morgan held that the Bell exception to the hearsay rule for business records of an entity applies to a marital household or to an individual party as much as it applies to a business. Castillon v. Morgan, No. 2015-13-00872-CV (Tex. App. – Dallas 2015, no pet.).

So, all of this together, should mean that in family court, if a spouse keeps records of activities like bank statements, credit card statements, school records, and the like, those should be admissible as an exception to hearsay as a business record of the household or spouse.


Interim attorneys fees in divorce with no children

I get questions pretty frequently from other lawyers that I mentor about how to request and get interim attorneys fees while a divorce is pending when there’s no kids. (The standard for awarding interim attorneys fees in a divorce with kids is different and not the subject of this post.)

Obviously, the first, best way for a lawyer to get paid for representing a client in this circumstance is to get paid upfront, by retainer. Sometimes a client does not have access to the accounts from which to pay the lawyer, so the lawyer must see fees to be paid from the community estate ordered by the Court. Any request for interim fees can only be considered under Texas Family Code section 6.502(4).

An court-ordered award of interim attorney’s fees must:

  • Be based on the needs of the applicant weighed against the ability of the community estate or the other party to pay. Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex. App. – Corpus Christi 1999, pet. denied).
  • May not be enforced by contempt – but only as a debt. In re Bielefeld, 143 S.W.3d 924, 930 (Tex. App. – Fort Worth 2004, orig. proceeding).
  • May not make the opposing party destitute in order to pay fees. Herschberg at 279.
  • Cannot be used to make an interim division of the property or to equalize one party to the other pending final division. Herschberg at 278.
  • Cannot be used “to level the playing field” — that is an abuse of discretion. Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App. – Houston [1st] 1994, orig. proceeding).
  • Past due attorney’s fees incurred during the litigation are in the nature of a debt and cannot be addressed via interim orders. Saxton at 736.
  • Must be based on evidence showing the reasonableness and necessity of the fees to be incurred. In re Sartain, 2008 WL 920664 (Tex. App. – Houston [1st Dist] 2008, no pet).

Of course, if the parties agree to pay attorneys fees in some manner, that agreement is enforceable. That is not what I am talking about in this post. Here, I’m addressing when and how a court may imposed an attorney fee award by contested order.

Many lawyers and judges I see are surprised that “equalization” is not a proper standard for awarding attorneys fees. This point cannot be emphasized too much! Equalization is never the right standard! If you think about it, this makes sense. One party may have more knowledge of the marital estate or better access to documents. So, that party’s fees may be naturally less, where the other side has to spend more time to gather information that is not at that spouse’s disposal.

The remedy for an improper interim attorneys fee award in mandamus.

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: http://www.slate.com/blogs/xx_factor/2017/06/16/texas_the_state_with_the_country_s_second_highest_child_marriage_rate_finally.html


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 supersedes 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 enforcement 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: http://www.breitbart.com/texas/2017/06/16/texas-enacts-anti-sharia-law/

Here’s a link to the Texas Legislature enrolled bill: http://www.capitol.state.tx.us/tlodocs/85R/billtext/pdf/HB00045F.pdf#navpanes=0


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: http://www.scotusblog.com/2017/05/opinion-analysis-unanimous-court-rules-veteran-family-law-case/