Rivers-McNamara

Support Issues

When children are involved, or sometimes when a spouse has significant post-divorce support needs, the divorce terms may include provisions for child or spousal support.  The terms for such support obligations are guided by the Texas Family Code.

Child Support

The statutory guidelines for periodic child support payments are generally based on the resources of the obligor (paying) parent and the proven needs of the children. Although other factors may affect the plan for child support, a starting point involves an assessment of the “net resources” of the obligor parent. Net resources as defined by the Family Code include all wage and salary income and other compensation for personal services; interest, dividends and royalty income; net rental income; and all other income actually being received including retirement benefits, trust income, gifts and alimony. The statutory guideline for child support then multiplies the net resources by a percentage based on the number of children involved in the case: 20% for one child, 25% for two children, 30% for three children, 35% for four children, and 40% for 5 or more children. These percentage amounts are reduced in cases in which the obligor parent is also obligated to support children not involved in the case.

Because the statutory definition of net resources includes only the obligor’s net resources up to $8,550 per month, what is an appropriate child support amount where the obligor parent’s income exceeds the “cap”? The Family Code provides that when the obligor’s net resources exceed $8,550 per month, the court may order additional support where appropriate without regard to the percentage guideline, depending on the income of the parties and the proven needs of the child. In such cases, the court looks at three factors: the obligor parent’s additional net resources above $8,550 per month, the obligee parent’s net resources, and the proven needs of the children above the amount covered by the percentage guideline amount.

A parent may not be required to pay child support in excess of the children’s proven needs. Evidence of children’s needs includes a household budget showing the obligee (receiving) parent’s own income and expenses. Many courts require this form to be filled out as part of the process for seeking court orders for interim or final child support.

In addition to periodic child support payments, the Family Code requires that the court order medical support to be provided for children. Generally the parent paying child support will also be required to provide health insurance for the children. The uninsured portion of children’s health care costs are generally required to be paid by both parents in equal portions.

For more information about child support, see the Attorney General’s website at https://www.texasattorneygeneral.gov/cs/child-support-publications.

 

Spousal Support

Post-divorce spousal support may be important to a spouse who has little income earning capacity either from working or from property investments. Divorcing parties may agree to include alimony provisions in their final divorce settlement, and in some limited cases a court may order spousal maintenance to be paid. An alimony agreement may not be changed by a court in the future, whereas court-ordered spousal maintenance may be modified after the divorce is final.

A court may order spousal maintenance to be paid only if (1) the payor party was convicted of a criminal offense that also constitutes family violence within two years before the divorce was filed or while the divorce was pending, or (2) the marriage duration is ten years or longer and the spouse asking for maintenance lacks sufficient property, including property awarded in the property division, to provide for his or her minimum reasonable needs and he/she (a) is unable to support him/herself through appropriate employment because of an incapacitating physical or mental disability, (b) is custodian of a child of the marriage who requires substantial care and supervision because of a physical or mental disability that makes it necessary that the parent not be employed outside the home, or (c) clearly lacks earning ability in the labor market adequate to provide support for his/her minimum reasonable needs. It is presumed that maintenance is not warranted unless the spouse asking for it has exercised diligence in seeking suitable employment or developing skills necessary to become self-supporting, unless that spouse is incapacitated or is caring for an incapacitated child of the marriage.

If the spouse asking for court-ordered maintenance can meet these requirements, then the court will decide the nature, amount, duration, and manner of support payments based on a number of factors, including:

–financial resources of the spouse seeking maintenance

–education and employment skills of the spouses

–time necessary to acquire education or training to seek appropriate employment

–duration of the marriage

–age, employment history, earning ability and physical and emotional condition of spouse seeking maintenance

–ability of the paying spouse to pay maintenance and child support and meet his/her own personal needs

–acts by either spouse resulting in excessive or abnormal expenditures or loss of property

–comparative financial resources of the spouses

–contributions to the education or earning power of the spouses

–contribution of a spouse as a homemaker

–marital misconduct of the spouse seeking maintenance

–efforts of the spouse seeking maintenance to pursue available employment counseling

The amount of spousal maintenance is limited to $5,000 per month or 20% of the paying spouse’s average monthly gross income, whichever is less. The duration of maintenance shall be the shortest reasonable period that allows the receiving spouse to meet his/her minimum reasonable needs by obtaining appropriate employment or developing appropriate skills. Except in the case of disability, the duration of court-ordered spousal maintenance may not exceed:

–5 years if there is family violence or the parties were married at least 10 years but not more than 20 years

–7 years if the parties were married at least 20 years but not more than 30 years

–10 years the parties were married more than 30 years

 

 

 

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