How To Establish Paternity in Texas?

October 23, 2013/in Child Custody Law, Divorce Law /by Erik Larson

There are several ways in which a man can become a father of a child and establish paternity in Texas. First, a man can be presumed to be the father under the Texas Family Code. This presumption is created if a man is married to the child’s mother and the child is born either during the marriage or within 300 days after the marriage is terminated. This presumption of paternity in Texas can be attacked by a suit to establish parentage or the filing of a valid denial of fatherhood and an acknowledgement of paternity (AOP) by another person.

A man can also become a father in Texas if he files an Acknowledgement of Paternity (AOP). The AOP must be signed by both the child’s mother and father and filed with the Bureau of Vital Statistics (BVS). Filing a signed AOP is a way to determine paternity in Texas instead of filing a lawsuit to determine the child’s father. In situations where the child does not a presumed father under the Texas Family Code, such as where the man and woman were never married to each other, the signed AOP is effective on the date the document is filed with the BVS.

Effective Acknowledgement of Paternity in Texas

To be valid, an AOP must:

1. be “in a record”;

2. be signed or authenticated under penalty of perjury by both the mother of child and the man acknowledging paternity;

3. state that the child does not have either a presumed father, an adjudicated father or another acknowledged father;

4. state whether genetic testing has been done and, if testing has been done, that the man’s claim for paternity is consistent with the test results; and

5. state that the man and the mother of the child understand that the AOP has the same effect as a court’s finding of paternity and that challenging an AOP is allowed in only certain cases.

Denial of Paternity in Texas

A presumed father can also sign a denial of paternity in Texas. Similar to the effect of an AOP, a denial of paternity by a man, along with another man’s acknowledgement of paternity, has the effect of a court ruling of paternity. As a result, a valid denial of paternity by a presumed father will release that man from all of the rights and duties of a parent. To be an effective denial of paternity under the Texas Family Code, the following requirements must be met:

1. A valid AOP is filed by another man;

2. The denial of paternity must be in a record, signed by another man and filed;

3. The presumed father has not done an AOP previously and has not been adjudicated to be the father by a Texas family court.

If you have questions about acknowledgement of paternity in Texas or denials of paternity, contact The Larson Law Office at 713.221.9088 to discuss your issue with our Houston family lawyers.

Can I Get Alimony in my Divorce?

September 22, 2013/in Divorce Law /by Erik Larson

Under Texas law, alimony is also referred to as “spousal maintenance” or “spousal support.” Spousal support is designed to provide temporary support for a spouse following divorce, rather than being a long-term proposition. A spouse’s eligibility to receive spousal maintenance following the entry of a final divorce decree has been significantly expanded since it was created almost twenty years ago. Spousal maintenance has grown from protecting only stay at home spouses who have been out of the workforce for many years to also including spouses who are responsible for disabled children, disabled spouses, and spouses who have experienced family violence.

In 2011, the Texas Legislature made substantial revisions to alimony eligibility. To qualify, a person must claiming spousal support must establish through evidence that:

1. The person actually a spouse – or at least claiming to be a spouse such as under a “common law” or informal marriage. Living together or cohabitating does not qualify a person to receive spousal support in Texas.

2. The person does not have sufficient property to provide for the person’s “minimum reasonable needs.”

3. The person meets one of the four following criteria: married for at least ten years and unable to earn a sufficient income, experienced family violence, spouse is disabled or child is disabled.

In deciding whether a person has “sufficient property”, the court can consider a variety of property types including the person’s income, which includes salary, bonuses, child support and other received money. The court can also consider the income earned from property such as a rental property owned by the person. Also included in the court’s analysis would be any separate property and the value of the share of community property received by the person in the property division in the divorce decree.

This standard is not specifically defined by the Texas Family Code and is rather left to the family court to determine what a person’s minimum reasonable needs are. Of course, this determination is based on evidence presented to the judge and can include a variety of expenses including housing, utilities, automobile related expenses, insurance, credit cards, medical costs and child care expenses, among others.

The ten year requirement is calculated from the date of marriage until the date of trial, rather than the date the divorce petition was filed. Additionally, the person seeking spousal support must prove they lacks the ability to earn a sufficient income and that they have made a diligent effort to earn a sufficient income or develop skills.

If you intend to pursue a divorce in Houston or one of the surrounding counties, spousal maintenance is one of many issues that a family law attorney can assist you with to protect your interests. Contact our law firm today at 713.221.9088 for a free consultation.

Can a Court Award Additional Child Support Above Guidelines?

September 22, 2013/in Family Court /by Erik Larson

Judges in Texas family law cases have discretion to award child support in excess of statutory guidelines under certain circumstances. The guidelines apply to obligors with up to $8,550 of monthly net resources.

If a parent who is obligated to pay child support has monthly net resources above $8,550, the court may award additional child support based on the child’s proven needs. These may be either needs that are currently being met or they may be unmet needs.

The court can allocate responsibility for the child’s additional proven needs between the parents. This means that the court may order that either parent or both parents provide the additional child support required. The financial and other circumstances of the parents often play heavily into the court’s determination.

The child’s best interest is the key factor in determining whether additional child support is needed. The parents’ needs are not a consideration for the court. Above-guidelines child support is often requested regarding issues including: nannies or other child care, private school tuition, lessons (music, academic and sports, for example) and other extracurricular activities. The court can also look to a child’s future needs, beyond the current needs of the child, in awarding additional child support.

Some of the factors that may be considered by a Texas court in deciding whether to award above-guidelines child support in a particular case that are provided by the Texas Family Code include:

(1) The child’s age and needs;

(2) Educational expenses beyond high school;

(3) Health insurance and uninsured medical expenses of the child;

(4) Extraordinary educational, health care of other expenses of the parties or the child;

(5) Travel costs to exercise possession of the children;

(6) Child care expenses so that the parents can work outside the home;

(7) The ability of each parent to provide financial support to the children;

(8) Whether a parent receives spousal maintenance (alimony); and

(9) Any other reason that is consistent with and furthers a child’s best interests.

The Texas Family Code also prohibits a court from including the following factors in its determination of whether to award additional child support: any prior voluntary support that was above guidelines; the gender of the parties or the child; and whether either parent is currently married and how much that spouse earns or the spouse’s net monthly resources.

Working with an experienced family law attorney can help you navigate the Texas child support path. Call 713.221.9088 to speak with our lawyers today.

Wage Withholding Orders in Texas

September 10, 2013/in Divorce Law, Family Court /by Erik Larson

Texas law provides for a court to enter a wage withholding order as a tool to help in collecting spousal maintenance (alimony) payments and child support payments. The order requires the employer of the party obligated to pay to withhold a portion of his paycheck.

The employer is also required to send that money to the person entitled to receive the money. Wage withholding can be involuntary or voluntary and can be done by a wage withholding order or a voluntary writ of withholding.

The withholding order is required to contain for how long the spousal maintenance payments are to be made and the amount of the payment. The combined amount of child support payments and spousal maintenance payments under a wage withholding order can be more than 50% of the responsible party’s “disposable earnings.”

The Texas Family Code defines “disposable earnings” as earnings after legally required deductions, union dues, non-discretionary retirement contributions, the cost of medical treatment, hospitalization and disability insurance for the party responsible to pay and his children.

If the court did not enter a wage withholding order with the divorce decree, the party to receive the payment can apply for a writ of withholding under the Family Code. A writ is filed with the court clerk rather than with the court itself, although the court must receive notice of the filing.

If the writ is not challenged, the process will often proceed to completion if it has been accurately drafted and contains all essential elements and both parties have signed the writ.

However, if the writ of withholding is challenged by the party responsible to pay, a hearing must be held by the court on the issue. A writ of withholding may be challenged by a motion to stay or by special exceptions if there is a defect in the writ.

When the employer receives a withholding order or writ, the employer must begin withholding funds beginning on the first paycheck after it has received the order or writ. The employer must continue to withhold funds and remit payment to the party named for the duration of time specified in the order or writ.

An employer who does not withhold funds properly or fails to remit funds to the proper party faces liability for the payment of those funds, fines and payment of attorneys’ fees.

Fault in Texas Divorce Cases

August 20, 2013/in Divorce Law /by Erik Larson

Texas law gives a spouse the ability to use grounds of fault in Texas divorce cases, but a spouse still has the ability to allege no-fault grounds for a divorce. The Texas Family Code provides that no-fault grounds include insupportability of the marriage due to discord or conflict with no reasonable expectation of reconciliation, living apart for at least three years, or if a spouse has been confined to a mental hospital for at least three years. As might be expected, insupportability is the common no-fault ground for divorce.

Until the early 1970s, a spouse had to prove that the other spouse was at fault in Texas divorce actions. Fault grounds include:

1. adultery;

2. abandonment for at least one year with an intent not to return;

3. cruel treatment that renders living together insupportable (intolerable) which applies to both mental or physical cruelty; and

4. a felony conviction.

In the early 1970s Texas the Texas Family Code expanded the grounds on which a court can grant a divorce to include no-fault grounds. The Texas legislature made this change for several reasons, including a desire to decrease the expense of divorce as well as to lessen the emotional turmoil often caused by having to put on evidence in court to prove fault, particularly with the ground of cruelty and adultery.

Even though most of Houston area divorce cases are granted with no-fault grounds, fault in Texas divorce matters is still frequently alleged. The reason for this is that if a party can prove fault in Texas divorce cases to a family court, the judge can take that into consideration when dividing marital property. If a party is found to be at fault for causing the breakup of the marriage, the court has the discretion to award the other spouse a disproportionate share of the community property of the marriage.

Additionally, divorce attorneys in Houston family courts will pursue a finding of fault in Texas divorce actions because the court can consider fault in setting the amount of spousal support payments and the length of time spousal support will last. Contact The Larson Law Office today at 713.221.9088 regarding help with your Houston divorce case.

Texas Divorce Waiting Periods

August 16, 2013/in Divorce Law /by Erik Larson

A frequently asked question by Houstonians about their divorce is “How long do I have to wait to get divorced?” Often, there is a second, follow-up question “How long do I have to wait to re-marry after my divorce is final?” These questions about Texas divorce waiting periods are common.

Waiting Periods to Obtain a Divorce

If one of the spouses has been a Texas resident for at least six months and has been a resident of the county in which that spouse currently lives for at least 90 days, that person is eligible to file for divorce in a Texas family court. It is not necessary that both spouses meet this residency requirement – only one spouse needs to do so.

The Texas Family Code does not require that the marriage took place in Texas in order to file for a Houston divorce. So, if a couple was married in Louisiana and one spouse has lived in Harris County for the past few years, they could obtain a divorce in Texas.

Once the residency requirements are met, the shortest time period to get divorced in Texas is 60 days from the date the petition for divorced is filed. Generally, to get a final decree of divorce entered on the 61^st day after filing the petition, the parties are in agreement on all property and child custody issues and have signed an agreed divorce decree that is presented to the court. The 60 day rule does not apply to actions for annulment or in cases where the marriage is declared void. Rather, this Texas divorce waiting period is a 60 day “cooling off” time for spouses to fully consider whether to dissolve their marriage.

Waiting Period to Remarry

Even after the divorce decree has been signed, the parties are not immediately free to marry another person. The Texas Family Code provides that neither spouse in a divorce can remarry a third party (anyone other than their former spouse involved in the recent divorce) until 31 days after the divorce decree was signed. However, the former spouses can remarry each other at any time – and while this does not occur frequently, it does happen more often than one might think!

Family law courts in Houston and have the ability to waive the 31 day Texas divorce waiting period to remarry so long as “good cause” is shown. An example is a situation where the divorced spouse assumed that the divorce process would not last as long as it did and did not build in enough time between the divorce and the wedding date. In these circumstances, the divorced spouse and his bride-to-be may have spent non-refundable money on a venue for the wedding, catering, etc. In situations like this, the court has discretion to waive the 31 day Texas divorce waiting period to accommodate the remarriage.

To discuss any of these issues, contact one of our Houston divorce lawyers at 713-221-9088.

Texas Medical Child Support Orders

August 14, 2013/in Child Custody Law, Family Court /by Erik Larson

One of the most significant issues in child support cases is structuring how the payment of the children’s medical and healthcare expenses will be handled. When periodic payments of child support are ordered by a Houston family court, Texas medical child support must also be awarded. This is in addition to the amount the obligor must pay under the child support guidelines.

In Texas, a court may order that medical child support payments be made to cover the children’s medical expenses or that the other parent provide health insurance coverage. The duration of medical support payments is the generally the same as periodic payments of child support.

Texas medical child support payments are enforceable as child support, which includes a wage withholding order and enforcement proceedings. So, there can be significant penalties and consequences when an obligor fails to perform as ordered by the court.

Section 154.182 of the Texas Family Code provides that the Texas family law court specify in the child support order the type of health care coverage or cash medical support the child will receive. Generally, the order will prioritize how medical support is to be accomplished by:

1. If the parent ordered to pay Texas medical child support has a health insurance policy through his employer, union or trade association at a reasonable cost, the court will order that the parent add the children to this insurance policy; or

2. If health insurance is not available through a parent’s employer, but is available through a different avenue, the court can order that parent to provide health insurance in that manner. Beginning in October 2013, another insurance option can be found at https://www.healthcare.gov/.

“Reasonable cost” means that the total cost of health insurance coverage for all children under the child support order is not more than 9% of the obligor’s yearly resources. Interestingly, in this context “annual resources” means gross resources as defined by Section 154.062(b), as opposed to “net resources” used to calculate child support payments.

The Texas medical child support order must also address how unreimbursed medical expenses are to be handled. These are medical and other health-care related costs that are not reimbursed either by health insurance or by the cash medical support sum. The court decides which parent is responsible to pay these expenses on a percentage basis. This also included expenses for dental care and vision treatment.

For Houstonians dealing with either a divorce or stand-alone child support case, it can be beneficial to consult with an experienced family law attorney. Contact Erik Larson or Diana Larson at 713-221-9088.

Houston Temporary Orders Hearings in a Texas Divorce

August 10, 2013/in Divorce Law /by Erik Larson

After being served with an Original Petition in a divorce case, a spouse will often find in served papers a notice that a temporary orders hearing has already been set. Temporary orders basically are orders entered by the court for the pendency of the divorce that can protect a spouse, property or ensure the children’s well-being.

Temporary orders hearings frequently occur very quickly and early in divorce cases. In many cases, the hearing on temporary orders occurs even before the non-filing spouse’s deadline to file an Answer has expired. In fact, it is not uncommon that many of the temporary orders entered by the court eventually provide the framework for the final decree.

The Texas Family Code provides that a divorcing spouse can request a temporary orders hearing for personal protection or for the protection of property during the divorce process. In situations where a divorcing couple has children, a spouse can also request temporary orders for a child’s safety and welfare.

Regarding temporary orders hearings to protect property, a spouse can request that the court enter temporary orders that provide for the exclusive use of the couple’s residence by one spouse prior to entry of the final decree. This request must be accompanied with evidence supporting why such an order is necessary. Examples of such evidence include a concern that the other spouse will attempt to prevent her from entering the property or that both spouses having access to the residence will have a negative or disruptive effect on the children.

A spouse can also ask the court to hear a temporary orders hearing for spousal support. Temporary spousal support is designed to protect a spouse who stays at home, or makes significantly less money than the other spouse during the pendency of the divorce until the final divorce decree is entered. If temporary spousal support is awarded to a spouse, the amount of spousal support paid can be considered by the court when final property division is done at the end of the case.

A party in a divorce case can request the court to hear a temporary orders hearing that the spouse be given the exclusive right to manage and control property of the marriage. This can range from things like automobiles to firearms to pets – a wide range of property can be the subject of these orders which are in effect until final orders.

At the temporary orders stage, a party can also request from the court:

Sworn Inventory and Appraisement of property;
Appointment of a receiver to protect property;
Production of Documents; and
Attorney’s Fees to be paid by the other spouse.

A spouse can also request a temporary orders hearing occur for conservatorship of the children, child support, medical support and attorney’s fees.

Temporary orders hearings are very important part of a Texas divorce case. Having a responsive and prepared divorce lawyer is recommended to manage the quick deadlines involved in these hearings. Call Diana Larson at Larson Law for a free case evaluation at 713-221-9088.

What is a Parenting Course?

August 8, 2013/in Child Custody Law /by Erik Larson

In a Texas divorce or child custody case, Section 105.009 of the Texas Family Code authorizes a family court judge to order the parties to attend a Parent Education and Stabilization Course. The court can enter such an order either in an original proceeding or in a motion to modify an existing custody order if the Court finds it to be in the best interest of the child.

Additionally, several Houston-area family courts including Fort Bend County, Harris County and Montgomery County have standing orders in place pertaining to whether attending a parenting course is required. These standing orders pertain to whether parties may take an online class or whether they must attend a parenting class in person.

The standing orders also govern whether parties must attend the class together, as well as when the parenting class must be completed and what providers of the parenting course will be accepted by the Court. If there is a history of family violence between the parties, the Court may prohibit the parties from taking the parenting class together. A parenting course must be at least four hours long and cannot exceed twelve hours.

The parenting course must be designed to educate and assist parents regarding the consequences of divorce and child custody disputes on parents and children. The course must include information on the following issues:

(1) the emotional effects of divorce on parents;

(2) the emotional and behavioral reactions to divorce by young children and adolescents;

(3) parenting issues relating to the concerns and needs of children at different development stages;

(4) stress indicators in young children and adolescents;

(5) conflict management;

(6) family stabilization through development of a co-parenting relationship;

(7) the financial responsibilities of parenting;

(8) family violence, spousal abuse, and child abuse and neglect; and

(9) the availability of community services and resources.

At the completion of the parenting class, a certificate is issued to the party participating in the course. A party may be required to file the certificate of completion with the Court.

Houston-area family law courts have wide discretion to take action against a party who fails to attend or complete a court-ordered parenting course including: contempt of court; striking a party’s pleadings; and ordering that no visitation occur until the course is completed or sanctions under Texas Rule of Civil Procedure 215.

To discuss parenting classes or other issues, contact a child custody lawyer in Houston for assistance at 713-221-9088.

How is Texas Child Support Calculated?

August 4, 2013/in Family Court /by Erik Larson

Texas law provides clear guidelines for the award of child support to be paid in child custody matters. Texas child support is generally calculated from a parent’s net (after tax) resources, not gross (pre-tax) resources. For most people, this primarily means their paycheck, which is typically paid by an employer monthly, twice per month, every two weeks or on some other basis. The timetable that applies to how a parent gets paid by the employer generally determines how often the Court will order Texas child support to be paid as well.

Bonuses, deferred compensation and other types of income can also be included into this calculation. For self-employed parents, the calculation of Texas child support increases in complexity as numerous factors are involved, as opposed to a salaried W-2 employee. The salary of the parent obligated to pay child support is not the only element of compensation that a Houston family court can consider.

The Texas child support payments themselves are often ordered to be withheld from the paycheck of the parent paying child support to ensure that the money is timely sent to the Texas Attorney General’s Office for distribution to the parent ordered to receive child support payments.

In determining what a parent’s “net resources” are, there are mandatory deductions that go into this calculation. These deductions include:

Social Security taxes;
Federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
State income tax (if applicable for a non-possessory conservator who lives in a state outside of Texas);
Union dues; and
Expenses for the children’s health insurance coverage.

In a situation where the parent who is obligated to pay child support does not support any children other than the children receiving child support under the order, the following is the general guideline for Texas child support in terms of the percentage of the party’s net resources:

One Child – 20% of Net Resources

Two Children – 25% of Net Resources

Three Children – 30% of Net Resources

Four Children – 35% of Net Resources

Five Children – 40% of Net Resources

Six Children – 40% of Net Resources

Seven Children – 40% of Net Resources

If you have a situation pertaining to Texas child support or a child custody matter in a Houston family law court, contact the attorneys at The Larson Law Office at 713-221-9088.