The Woodlands Divorce Attorney, Conroe Divorce Attorney » Child Support

Hearsay Evidence Is Allowed (Sometimes)

Rich Shea — Thu, 24 Jun 2010 10:44:49 +0000

You have to prove your case. At the end of the day no matter how many horrible accusations are traded between you and your ex it is your Woodlands Divorce Attorney’s job to prove your case with the evidence. If a certain piece of evidence is not legally admissible then it cannot be used to prove your case or used against you. Hearsay evidence is generally not allowed, even in a Woodlands divorce case and even if the evidence is offered by the Attorney General. In a recent child support case a trial court allowed hearsay evidence from the Attorney General’s office, but did not exclude it under a narrow exception to the hearsay rules. Let’s take a closer look at what happened.

The Arguments on Appeal

The father in this was is A.J. A.J. argues that the trial court admitted inadmissible hearsay to prove his 2004–2007 earnings for the purpose of calculating child support. The Attorney General argues that Hardy can testify on the basis of hearsay sources because she qualifies as an expert per the Texas Rules of Evidence.

The Court’s Analysis

The trial court found where the parties have adequately complied with their discovery obligations, experts can generally testify regarding their opinions and give the reasons they hold their opinions without prior disclosure of facts or underlying data, unless the court orders otherwise. Trial courts are not automatically required to exclude the expert’s underlying facts or data, even if inadmissible, but instead must only do so when “the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial.”

In this case, the Attorney General’s calculation of A.J.’s child support obligation depended, in part, on his earned income for the 2004–2007 period. Although the Attorney General had obtained information on A.J.’s earned income through a subpoena, the underlying records that she apparently received were not properly proven up and thus, inadmissible hearsay. Thus, the court concluded that the Attorney General’s testimony about A.J.’s levels of income between 2004 and 2007 was inadmissible hearsay. Nevertheless, A.J. also testified about his income for the period 2004–2007. According to A.J., it was more likely than not that he had made more than $100,000 every year since 2004.

Hearsay Not Prejudicial

The court ruled that in light of A.J.’s testimony that his income exceeded $100,000 for each year at issue, the evidence supported the trial court’s use of the figure of $6,000 per month as A.J.’s net monthly income. On this record, other admissible testimony, consisting of A.J.’s testimony about his income, supports the figure the trial court used to calculate A.J.’s child support obligation. Therefore, the admission of the Attorney General’s testimony to explain the basis of her opinion was not unfairly prejudicial.

About the Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a divorce lawyer in The Woodlands, TX today and protect your rights. Contact The Shea Law Firm at (832) 426-3913.

Child Support for High Income Parents

Rich Shea — Sun, 16 May 2010 21:22:40 +0000

Child support is a critical issue in many Woodlands divorce cases. We previously discussed how the child support guidelines function in a situation where the parent paying child support has net resources below $7,500 per month. If you have more than $7,500 per month in net resources then your Woodlands Divorce Attorney must analyze additional facts to determine how much child support you may pay or receive. Call us at (832) 426-3913 today if you need help with your child support issue.

The Family Code

If the obligor’s net resources exceed $7,500, 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.
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 Section154.125(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.

How Does it Work?

The court must first determine what the proven needs of the child are. If the needs of the child exceed the presumptive award determined from applying the guidelines to the first $7,500 of net resources, then the court must subtract the presumptive award from those needs. The presumptive award for a single child would be 20% of the first $7,500 of the obligor’s net monthly resources, or $1,500. Any support ordered in excess of $1,500 may only be based on the unmet needs of the child. The court may consider the circumstances of the parties in allocating the burden of meeting the child’s needs in its support order.

About The Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue call (832) 426-3913 to speak with a divorce lawyer in The Woodlands, TX today and protect your rights.

Child Support Outside the Guidelines

Rich Shea — Sun, 11 Apr 2010 18:24:00 +0000

The Child Support Guidelines are a starting point. They reflect what the divorce court presumes to be in the best interests of your children. However, like many presumptions in the law, your Woodlands Divorce Attorney can help you attempt to rebut the presumption if it is appropriate that you receive more or pay less child support than what the guidelines provide for.

What Will the Court Consider?

Once your Woodlands Divorce Attorney is able to successfully rebut the presumption that the standard guidelines should apply the court should consider all the relevant factors of your case in determining the appropriate child support. Some of the most important factors the courts have traditionally considered are:

the age and needs of the child;
the ability of the parents to contribute to the support of the child;
any financial resources available for the support of the child;
the amount of time of possession of and access to a child;
the amount of the parent that pays child support’s (obligee) 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;
child care expenses incurred by either party in order to maintain gainful employment;
whether either party has the managing conservatorship or actual physical custody of
another child;
the amount of alimony or spousal maintenance actually and currently being paid or
received by a party;
the expenses for a son or daughter for education beyond secondary school;
whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
the amount of other deductions from the wage or salary income and from other
compensation for personal services of the parties;
provision for health care insurance and payment of uninsured medical expenses;
special or extraordinary educational, health care, or other expenses of the parties or of
the child;
the cost of travel in order to exercise possession of and access to a child;
positive or negative cash flow from any real and personal property and assets, including a business and investments;
debts or debt service assumed by either party; and
any other reason consistent with the best interest of the child, taking into consideration
the circumstances of the parents.

That is a long list. The details of your divorce case may require additional factors be considered as well. Speak with a Woodlands Divorce Lawyer today if you need help determining the appropriate child support in your unique situation.

About the Author

Child Support and Disability Benefits

Rich Shea — Sun, 24 Jan 2010 01:16:03 +0000

A household where one or sometimes both parents are disabled faces many challenges. Trying to make ends meet on a modest income is never easy. After a divorce in Montgomery County, Texas there may be a new monthly expense, child support. How does a parent receiving disability benefits afford child support? How does your child get the support it needs if one parent is unable to work and receiving disability benefits?

Many families have faced this issue before. The general rules is that if the child receives benefits as a result of the parent’s disability, then the parent should be eligible for a child support reduction. The amount of the reduction is equal to the value of benefits the children receive from the disability benefits program. If the child does not receive benefits as a result of the parent’s disability, then the disabled parent may not qualify for this reduction. In either case, your the Woodlands Divorce Attorney can explain to you the impact of disability on your divorce case.

The specific process the Conroe Divorce Court will follow if disability benefits and child support are contested issues in your Woodlands Divorce are:

First, the court will determine if the parent has a disability and if the parent is required to pay child support;
Second, the court will determine if the child receives benefits as a result of the parent’s disability;
Next, the court will apply the child support guidelines to determine the amount of child support that would be ordered under the child support guidelines regardless of the parent’s disability; and
Lastly, the court will subtract from that total the amount of benefits or the value of the benefits paid to or for the child as a result of the parent’s disability.

Speak with a Woodlands Divorce Lawyer today if you need help figuring out the impact one parent’s disability will have on your divorce case.

About The Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Spring, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a divorce lawyer in The Woodlands, TX today and protect your rights.

Is Your Annuity a Resource for Child Support?

Rich Shea — Fri, 18 Dec 2009 13:24:15 +0000

Resources.

Before even trying to figure out what a parent can pay as child support in Montgomery County your Woodlands Divorce Attorney must establish the parent’s resources. There are many different resources that the Conroe divorce court considers when awarding child support. Today we are going to look at one specific type of asset – the structured settlement annuity.

Structured settlement annuities are used to settle personal injury claims. In many ways they behave like a normal annuity that you might buy from a bank, but is it a resource for child support?

Should the entire payment be included as a resource?

Should none of the payment be included as a resource?

Should part of the payment be included as a resource?

The appeals court recently ruled on a case where they had to decide whether payments received as part of a structured settlement annuity are considered in the calculation of “net resources” for child support. The divorce court in this case excluded payments received from an annuity created from the proceeds of a personal injury settlement by creating a distinction between an annuity and a settlement annuity. Let’s see if they were correct.

The legal definition of resources we live with in Montgomery County includes:

all other income actually being received, including … annuities….

In addition to the definition of “resources”, the following items are not included as resources:

(1) return of principal or capital….

In this case, an annuity was purchased to pay out a settlement from a lawsuit over a span of years. The issue is whether the amounts received by the father, constituted a return of principal, which is not a resource, or whether it constitutes income that would be included as a resource.

The Attorney General relied on the simple use of the word “annuity” to claim the entire amount of every payment should be included as a resource. The father claimed no part of any payment should be included because the annuity in a structured settlement case represents a return of principal.

Correctly, the appeals court identified the critical components to an annuity, including a personal injury structured settlement annuity. In an annuity such as this one, there is a portion of each payment the represents a return of principal and a portion of each payment that represents interest. Since both sides to this case did not address this issue in the original divorce court the appeals court could not make a more detailed ruling.

Don’t make the same mistake they did and end up wasting time and money on an appeal and re-litigation in divorce court. Your Woodlands Divorce Attorney can analyze the annuity in your case to determine how much may be included as a income resource and how much may be excluded as a return of principal.

2009-TX-0706.713

IN THE INTEREST OF A.A.G.

Modifying a Child Support Order

Rich Shea — Sun, 15 Nov 2009 13:37:17 +0000

Circumstances change as years go by, and if you are responsible for paying child support or are entitled to received child support you have the opportunity to modify the existing child support order in certain circumstances.

The divorce court may modify a child support order, including an order for health-care coverage, if

the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of the date of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or
it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the current child support guidelines.

However, if the parties agreed to an order under which the amount of child support differs from the amount that would be awarded under the child support guidelines, the court may modify the order only if the circumstances of the child or a person affected by the order have materially and substantially changed since the order was rendered. In this situation, you can not use the provisions of #2 above to seek modification of child support.

When is the modification effective?

The court is limited as to when the new support order is effective. A child support order may be modified with regard to the amount of support ordered only as to obligations accruing after the earlier of 1) the date of service of citation or 2) an appearance in the suit to modify. If your spouse won the lottery 6 months ago the court can not go back and change the child support due until service of process is completed or an appearance is made in the modification case.

Winning and Losing Your Claim

The difference between winning and losing your case can be very small. Speak with a Woodlands divorce attorney today to help you win your case.

Child Support for a Disabled Child

Rich Shea — Tue, 10 Nov 2009 13:41:09 +0000

A child support order in Montgomery County usually ends when the child reaches the age of 18. Families caring for a disabled child face special challenges and the law allows for child support to continue past the age of 18 in the case of a disabled child. In fact, a court can order child support indefinitely.

Does your child have to be in an institution?

No, a court can issue a support order regardless of if your child is at home or in a facility.

What is required to obtain child support for a disabled child?

Your divorce attorney in The Woodlands must prove to the court that your child requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support and that the disability exists, or the cause of the disability is known to exist, on or before the eighteenth birthday of your child. This is a different standard of proof than in “normal” child support claims.

How much child support can be received?

In determining the amount of support to be paid after a child’s eighteenth birthday, the
specific terms and conditions of that support, and the rights and duties of both parents
with respect to the support of the child, the court shall determine and give special consideration to

any existing or future needs of the adult child directly related to the adult child’s mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
the financial resources available to both parents for the support, care, and supervision of the adult child; and
any other financial resources or other resources or programs available for the support, care, and supervision of the adult child.

Child support for a disabled child is an important issue. Speak with a Montgomery County divorce lawyer today if you need help with child support for your disabled child.

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a divorce lawyer in The Woodlands, TX today.

Is Your Spouse Voluntarily Underemployed?

Rich Shea — Wed, 04 Nov 2009 12:33:00 +0000

Voluntary underemployment is a big issue in some divorces. Occasionally, one party to the divorce may try to lower their child support obligation by reducing their income. This is because in most cases the divorce court presumes the child support guidelines are proper. If you suspect your spouse has reduced their income intentionally to reduce child support or other court ordered payments you may be dealing with a case of voluntary underemployment.

Proving voluntary underemployment is important because it allows the family court to deviate from the child support guidelines. If your Woodlands Divorce Attorney can not prove your case, then the family court will apply the normal child support guidelines to the current income. However, a finding of voluntary underemployment allows the court to set child support at the “earning potential” rather than the actual earnings of the party responsible for child support.

There are two steps in a voluntary underemployment claim:

To begin the voluntary underemployment analysis, the family court contemplates the proof of current wages for the party responsible for child support.
Once the obligor’s wages are established, the burden shifts to the person claiming the other side is voluntarily underemployed to demonstrate the obligor’s intent to decrease income for the purpose of reducing child support payments. Your divorce lawyer will need evidence of intent, such as the circumstances of obligor’s education, economic adversities, business reversals, business background, and earning potential, to give rise to an inference of voluntary underemployment. These factors are not exhaustive.

It is your responsibility to prove voluntary underemployment with sufficient evidence. If you do not have enough evidence, then all your spouse has to do to defeat the claim is establish his current income. Speak with a The Woodlands Divorce Lawyer today if you need help with your divorce or child support case.

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a Conroe Divorce Lawyer today.

How Much Child Support Will You Pay or Receive?

Rich Shea — Tue, 04 Aug 2009 12:21:22 +0000

Child support payments are often a critical issue in divorce cases filed in the Conroe or Houston Family Law Courts. The parent with custody wants the support payments high enough to help with the costs of raising the child(ren) and the parent without custody wants to be sure the payments are being used for the child(ren). Fortunately, Texas Law provides a starting point for determining child support amounts for cases in Houston and Conroe.

The table below shows the amounts the Court initially considers fair. One critical element your Conroe Divorce Lawyer will work on is determining the Obligor’s “Net Resources.” If the “Net Resources” is higher then the support order will be higher, if the “Net Resources” are lower then the support order will be lower. We will go over exactly what items go into “Net Resources” at a later time. If the Obligor’s monthly “Net Resources” do not exceed $7,500 then these guidelines apply. If the monthly “Net Resources” do exceed $7,500 then different rules apply.

Number of Children	% of Obligor’s Net Resources
1	20
2	25
3	30
4	35
5	40
6+	No less than 40%

These are guidelines for child support in Houston and Conroe. If the Court strictly follows these guidelines its support order is presumed reasonable and in the best interests of the child(ren). This presumption makes it very difficult to successfully appeal an order you do not agree with. Although presumed reasonable, the law does allow the Court to determine that applying the Guidelines in your case may be unjust or inappropriate under the circumstances. Speak with a Conroe Divorce Lawyer today if you need help with your child support issue.

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a Conroe Divorce Lawyer today.

Your Child Support and the Attorney General

Rich Shea — Wed, 27 May 2009 19:25:17 +0000

The Attorney General has some enforcement authority to pursue assets to satisfy child support obligations. Sometimes they go too far.

In The Interest of R.C.T. 2009-TX-0408.559 gives us an example of when a Texas Attorney General goes too far to collect assets for child support. In the case, the husband and wife agreed to a figure of $9,024 that the husband owed in retroactive child support. The Court also approved an agreement for the husband to repay the retroactive support by monthly installments of $150. The Attorney General was not satisfied with this resolution.

The Attorney General did not want to wait for monthly installments of $150. After the Court approved the order, the Attorney General

filed a child support lien against the husband and notified the U.S. Department of Treasury that the husband owed past-due support in excess of $500. The Treasury Department then informed the husband that his tax refund of almost $4,000 would be intercepted and paid to the Attorney General’s office in payment of the retroactive child support.

In order for the Attorney General to legally intercept the husband’s tax refund the husband must be “delinquent” in his child support payments. Until this case, the Court had not interpreted exactly what qualifies as “delinquent” for the purpose of intercepting a tax refund. In its discussion, the Court concluded that in order for a person to be delinquent on their child support obligation they must have failed to comply with the court order concerning child support.

In this case, the court order for payment of the retroactive child support was $150 per month. At the time the Attorney General attempted to intercept the husband’s tax refund the husband was in compliance with the court order. As a result, the Court concluded the retroactive child support balance was not “delinquent” and therefore the Attorney General could not act against the tax refund. If the husband had not made his monthly payments of $150 then the outcome may have been different.

Speak with a Woodlands Divorce Attorney today if you need assistance with your child support issue.