Child Support for Split Custody

Usually, all the children under 18 live with the same parent and visit with the other parent together. Sometimes, though, the some children may live with one parent most of the time and other children in the same family may spend most of their time with the other parent. This can be because one parent is better at nurturing small children while the other is better at dealing with teen-agers. Or perhaps one parent keeps a child with significant disabilities and, in order to help that parent focus on the needs of the child with disabilities, the other children live with the other parent.

Whatever the reason for splitting custody, there is always the issue of child support. Who pays how much to whom? The Texas Family Code does not provide an explicit answer to that question, but attorneys and judges tend to approach the question the same way.

Let's say we have a divorced mother and father who have 3 children together. Let's assume both parents have remarried and, to make it interesting, let's assume the father has had 3 more children with his new wife, but mother has not had any more children. Finally, let's say the parent's have a 15 year old daughter who just can't live with her mother any longer and the parents agree that the 15 year old daughter will live with her father and the other two siblings will live with their mother.

Here is our family tree:

How Much Child Support is Due?

First, compute how much child support the father should pay the mother for the two children that are living with her. You do that by determining his monthly net resources and applying a child support factor to it. What is his child support factor? According to the Texas Family Code, because he has one of their children living with him AND he also has three other children from his second marriage living with him, his child support factor would be 19% (Tex. Family Code § 154.129). Assuming his monthly net resources are $3,000, he would owe mother $570.00 in regular child support each month.

Second, compute how much child support the mother should pay the father for the one child that is living with him. Her child support factor would be 20% because one of her children is living with the father and she does not have any other children. Assuming her monthly net resources were $3,000, she would owe father $600.00 in regular child support each month.

How is Child Support Paid?

You can set up the order so that father is ordered to pay mother $570.00 each month and mother is ordered to pay father $600.00 per month. There are a number of reasons that attorneys might want to do that, but I think it just sets the parents up for failure. My suggestion is that you take the higher child support figure ($600.00 from the mother) and subtract the lower figure ($570.00 from the father) and have the mother pay the father $30.00 per month in child support. There is a reason for having mother pay child support of $30.00 per month rather than just forget about it because it is such a small amount. If she pays this child support each month, if you write the order up properly, it will be clear that the child support ordered is substantially in conformance with the guidelines. When child support is substantially in conformance with the guidelines contained in the Texas Family Code, the rules for changing child support are easier to understand and invoke.

Complications.

I have given a simple example here. My simple example does not include provisions for health insurance for the children or does it look to see whether child support should be above or below guidelines. If the father in our example is keeping the one daughter because she has severe medical problems or substantial intellectual or physical disabilities, father might successfully argue that mother should pay more than guideline child support in order to help defray the extraordinary costs of caring for the child. Likewise, mother can seek reimbursement from the father if she is paying for the children's health insurance. For a list of factors the court might consider in determining whether child support should be above or below guidelines, look at section 154.123 of the Texas Family Code.

No Child Support.

What about ordering that neither parent pay child support to the other? Section 154.124 of the Texas Family Code allows parents to make agreements regarding child support and, in many courts, those agreements are routinely adopted by the court without many questions. In the example we worked through above, we might draft language in the child support section of the order that says, "The parties represent and the Court FINDS that the parties each have approximately the same monthly net resources and that the application of the child support guidelines results in each party paying the other party approximately the same amount of child support each month. Therefore IT IS ORDERED that neither party shall pay child support to the other party at this time."

If you are an attorney drafting this order, I would carefully counsel my client to understand that even with the above language, fortified with a caveat such as "Both parties agree to never seek child support from the other party ever, ever, never, ever," the court has the authority to order one parent or the other to pay child support in the future if there is a material and substantial change in circumstances, particularly one that was not reasonably foreseeable at the time the "no child support" order was signed. That's why I prefer to go ahead and have one party pay the other, even if it's a small amount, just so that it's clear that the court has the authority to order child support.

What if your client insists on the "no child support" order? I would urge you to draft a sentence at the end of the "no child support" language that says, "The parties understand that even though they have agreed that neither shall pay child support to the other at this time, the Court retains the authority under Texas and Federal law to order child support in the future if doing so would be in the child's best interests."

Conclusion

There are a number of reasons that siblings might not live in the same household. Determining how to handle child support in such split-custody arrangements is not explicitly ordained by the Texas Family Code, but the Texas Family Code does contain enough guidance to assist the parents in coming up with a good order.

Computing Child Support in Texas

In Texas, child support is almost always set according to a set of guidelines contained in the Texas Family Code. These guidelines are established by the state legislature and supersede any local rules or any rules that the Texas Supreme Court might come up with. (Tex. Family Code §§ 111.001 and 111.002).

Applicability
The child support guidelines apply to final orders in matters involving children, but they also apply to temporary orders. Tex. Family Code § 105.001(g). However, because temporary orders cannot be appealed, for the most part, the court still has significant authority to deviate from guidelines both under the Texas Family Code and under the Texas Rules of Civil Procedure.

Deviation from Guidelines
The final child support can deviate from guidelines. That means that the final amount of child support ordered can be more or less than what a strict adherence to the Texas child support guidelines would suggest. There are three ways a child support order can deviate from guidelines.

1. Temporary Orders
As mentioned above, the trial court has significant latitude in setting child support during the pendency of a matter. This may be for a number of reasons including the likelihood that information available to the court at a temporary orders hearing is far from complete. The court is not required to explain why it is apparently or even in fact deviating from guidelines in temporary orders.

2. Agreement of the Parties
Parties to a Texas child support order are more likely to follow the order if they had a hand in developing the terms of the child support order. Recognizing this and wanting to promote the amicable resolution of family disputes, the legislature has ordered the district courts to honor agreements between the parties regarding child support if the court finds that the order is in the children's best interest. Tex. Family Code § 153.601(4). My experience is that judges will almost always honor the agreement of parties represented by attorneys. Judges can get suspicious if the side that appears to have the upper hand in the child support order is represented and the other side is not. Moreover, some judges will always make the parties explain an unobligated order, i.e. one that calls for ZERO child support.

3. Order of the Court
The guidelines written by the legislature are presumed to be in the best interest of the child. Tex. Family Code § 154.122. However, a party can ask the court to deviate from guidelines. The court may consider a number of factors, including but not limited to those listed by the state legislature, Tex. Family Code § 154.123. To arrive at an award of child support that is above guidelines, the party seeking the higher-than-guideline support must establish that the proven needs of the child exceed guideline child support. Then the court must subtract guideline support from the total proven needs of the child and then allocate the remainder between the conservators (parents). Tex. Family Code § 154.126. If the court deviates from guidelines, then if either party asks why, the court must explain itself in writing. Tex. Family Code § 154.130.

Computing Guideline Child Support in Texas
There are only three steps to computing guideline child support in Texas. First, you compute the total monthly resources (gross income) available to the obligor (person who has to pay child support). Then you subtract a few items such as Social Security, Medicare, and income taxes to arrive at Net Monthly Resources. Finally you select a factor to apply based on the number of children the parties have together and other children the obligor must support and multiply that factor by the lesser of Net Monthly Resources or $7,500 with the result being guideline child support.

Step 1: Compute Total Monthly Resources
In the majority of cases that I work with, this is the most hotly disputed part of getting to an agreement on child support. One party will accuse the other party of having hidden, income-producing assets in another county, will complain that the pay stubs being sued do not properly account for bonuses and/or overtime, or that an obligor employed by his or her family is having income hidden through deferred bonus payments or fringe benefits (e.g. payments for cell phones, cars, insurance, rent, etc.) that do not show up on the pay stubs. Often, the complaining party is right and getting to the bottom of all this is not an exact science and practitioners are well-advised to make certain their obligee clients understand that fact.

Total monthly resources include:

1. 100% of wages, salary, commissions, overtime, tips, bonuses and other employment-based income (whether W-2, 1099, or off the books);
2. Interest, dividends, and royalties;
3. Net rental income (gross rental receipts less the actual cost of carrying the property);
4. Gifts, prizes, spousal support, and alimony;
5. Child support received (yes, some people receive child support from one co-parent and pay it to another). Tex. Family Code § 154.070;
6. All other income actually received except forSupplemental Security Income (SSI)

Case law instructs that the court can impute income, look at prior years' earnings, and include monetary gifts from parents, and scholarship funds received.

If the court finds that the obligor is intentionally significantly underemployed, the court can use the obligor's earnings potential to arrive at total monthly resources. Tex. Family Code &sect. 154.066. The financial stresses of our current times are causing many people to lose jobs. The loss of a job often leads to divorce. If the obligor is the parent who lost his or her job, then the court finds itself in the conundrum of using the now-unemployed obligor's previous income to set child support (as will be urged by many obligees) or to set child support based on minimum wage, unemployment income, etc. (as will be urged by most obligors). My experience is that many courts will set child support for an unemployed obligor based on their current income or minimum wage, but may impose a prospective order that kicks in a higher amount of child support in 6 months, thus pressuring the obligor to go find a job.

The court can deem income from non-income producing assets, less the cost of carrying the assets, if the court finds that income from those assets is being suppressed to avoid child support. Tex. Family Code § 154.067.

Finally, if the court can find no evidence of the earnings or earnings potential of an obligor, the court may presume that the obligor's total monthly resources is equal to 40 hours per week of minimum wage work. Tex. Family Code § 154.068.

Importantly, The court cannot include the obligor's spouse's income. Tex. Family Code § 154.069.

To smooth out income fluctuations, the court is encouraged to annualize income from each source, add it all together, and divide by 12 to arrive a average total monthly resources. Tex. Family Code &sect. 154.061(a). This should make both side of a case happy. If an obligor recently received a bonus, the obligor would not want that pay check multiplied used as the basis of setting child support. The same would be true for quarterly dividend payments. If the obligor recently received a quarterly or even annual check for dividends, the obligor would not want the court to base child support upon the notion that the obligor receives that kind of income every month. Conversely, obligees should appreciate this approach because it encourages the use of year-to-date (YTD) numbers which will pick up bonuses received in the near past.

Step 2: Compute Net Monthly Resources
Net monthly resources are an important concept in computing child support in Texas. To compute net monthly resources, you start with total monthly resources from Step 1 above, and subtract the following amounts:

• Social Security and Medicare Taxes. Tex. Family Code &sect.&sect. 154.061(b), 154.062(d)(1);
• Federal income taxes for a single person claiming one personal exemption and taking the standard deduction. Tex. Family Code &sect.&sect. 154.061(b), 154.062(d)(2);
• State income taxes paid. Tex. Family Code &sect. 154.062(d)(3);
• Mandatory union dues. Tex. Family Code &sect. 154.062(d)(4);
• Amounts paid for health insurance for the children or cash medical support ordered by the court. Tex. Family Code § 154.062(d)(5). If the obligor is insuring more than just the children before the court, then the amount of insurance premiums deducted is prorated based on the total number of children insured. Tex. Family Code § 154.062(e). For example, suppose the obligor pays $350 per month to insure children, that there are two children involved in this case, and that the obligor is also covering three children from another relationship. The proper deduction for health insurance in this case would be to compute the amount paid per child ($350 ÷ 5 children = $70 per child) and then multiplying that by the number of children in this case ($70 per child  x   2 children = $140) and subtract $140 from total monthly resources, NOT $350.

NOTE: The guidelines presume that the obligor will be paying for health insurance for the children. Tex. Family Code § 154.064. If the obligor is not paying for health insurance for the children, the court may require the obligor to pay cash medical support of up to 9% of the obligor's total monthly resources to help pay for the children's medical expenses.

Once these deductions are subtracted from total monthly resources, you have a prospective amount to use as net monthly resources. However, in Texas, guideline child support is based on the first $7,500 of net monthly resources (an amount that may go up in 2013). Therefore, the final number you use for net monthly resources is the LOWER of $7,500 and the amount computed above. Tex. Family Code § 154.125. Put differently, if the amount you compute for net monthly resources above is greater than $7,500, then you use $7,500 as the amount of net monthly resources no matter how much the obligor actually earns.

Step 3: Compute Guideline Child Support
Once you have a figure for net monthly resources, computing guideline child support in Texas becomes quite easy. There is a formula for determining a child support factor to use where there are children from more than one household, Tex. Family Code § 154.128, but it is much simpler to use the table provided by the legislature, Tex. Family Code § 154.129:

Once you have a factor, multiply it by the net monthly resources obtained from Step 2 above and that will be guideline child support in Texas.

An even simpler way to compute guideline child support is to use my Texas Child Support Calculator or my Android App, available through the Android Market.

Miscellaneous Notes
First, the payment of child support may not be a precondition for possession of or access to the children. Tex. Family Code § 153.001. Many parents do not understand this. They believe that if the obligor is behind on child support, then the obligee is justified in withholding the children from the obligor. That logic, while understandable in the trench warfare of family law disputes, fails to comprehend the foundational logic of possession & access orders and child support orders.

The legislature has made is clear that above all, the best interests of the children are to be paramount in any decisions regarding the children. Tex. Family Code § 153.002. Possession and access is not about a parent's right to visit with his or her children. Instead possession and access is based upon the presumption by the state legislature that it is in the best interest of the children for them to have a close and continuing relationship with their parents. Tex. Family Code § 153.001. If it's in the children's interest to have a relationship with both parents, that interest does not change simply because one parent is behind on child support or even a complete deadbeat.

Equally true is the rule that an obligor must keep paying child support even if the other parent is refusing visitation. Again, the logic is that the payment of child support is for the benefit of the children and the children certainly don't become less hungry, less in need of shelter, and less in need of financial support just because one parent is withholding them from the other.

Second, a parent who is not named a conservator of the children, perhaps because of a history of family violence, drug abuse, etc., may be ordered to pay child support anyway. Tex. Family Code § 153.075. This too is based on the logic that financial support is for the kids--it is not payment for rights involving decision making or possession and access.

Third, child support should be ordered even if both joint managing conservators of the children. Moreover, may obligors are under the misunderstanding that if they can coax or coerce the other parent into a 50:50 possession schedule, no child support will be due. That's not true. Child support will be ordered even in 50:50 possession schedules. Even courts that ignore the statutory presumption in favor of the standard possession order will order child support be paid by a higher-earning parent to a lower-earning parent.

Finally, many orders contain provisions requiring the parties to mediate disputes in the future prior to going to court. There are normally carve-outs for enforcement actions and emergencies involving the safety and welfare of the children. However, if the court imposes a requirement to mediate (or use other alternative dispute resolution mechanisms) future disputes, modification of child support is not subject to the requirement to mediate prior to filing suit. Tex. Family Code § 153.6031. However, it is likely that a trial court would require the parties to attempt mediation to modify child support if the parties had agreed to do so in their final orders.

Emancipation of Minors in Texas

Teenagers frequently want to know at what age they may begin to live independently. Prior to 1973, the age of majority in Texas was 21 (and probably should still be, but that's a different topic). Now the age of majority is 18. Nonetheless, this is still a hot topic for young people.

The Statutes

A number of Texas statutes, federal laws, and constitutional provisions pertain to minors and prescribe the age at which people may start doing certain activities. For example:

1. Living independently. Chapter 31 of the Texas Family Code explains how a minor can become emancipated. The legal term for emancipation is "removal of the disabilities of minority."
2. Attending school. Children under the age of 18 must attend school, unless otherwise exempted, even if they are emancipated. (Tex. Educ. Code § 25.085. see also Tex. Educ. Code § 25.086)
3. Voting. Persons under the age of 18 cannot vote. This is established by the 26th Amendment to the Constitution of the United States of America, adopted July 1, 1971.
4. Drinking alcohol. The National Minimum Age Drinking Act of 1984, passed by Congress, requires a 10% reduction in highway funds for states that do not establish 21 as the minimum age for consuming and purchasing alcohol. In response to this act of Congress, Texas raised the minimum drinking age in Texas from 19 to 21 on September 1, 1986.
5. Smoking. In Texas, it is illegal to sell tobacco products to a person under the age of 18, even if that person has been emancipated. (Tex. Health & Safety Code § 161.082)
6. Joining the armed forces. The minimum age for joining the United States Military is 17, if the child has parental consent, or 18 without consent. This is established in Title 10 of the United States Code, 10 U.S.C. § 505.

There are other provisions that limit what emancipation brings to a person under the age of 18, but those listed above are the ones I am most frequently asked about.

Three Ways to Achieve Emancipation (Elimination of Disabilities of Minority)

1. Get Married

The Texas Family Code says that "a person, regardless of age, who has been married in accordance with the law of this state has the capacity and power of an adult, including the capacity to contract." (Tex. Family Code § 1.004). That is powerful language and suggests that the quickest way to emancipation is to get married.

But it's not that simple. That thundering language is preceded by the legislator's favorite catchall phrase: "Except as expressly provided by statute or by the constitution." That means that marriage will remove the disabilities of minority for purposes of allowing the minor to sue and be sued and to allow the minor to enter into contracts, including lease agreements. But the minor still can't legally skip school, vote, drink, smoke, or join the armed forces.

2. Obtain a Court Order

A minor can ask (petition) the court to eliminate the minor's disablities of minority. The procedure and standards for accomplishing this are set out in Chapter 31 of the Texas Family Code. This applies to minors who:

1. Reside in Texas;
2. Are at least 17 years old, or as young as 16 if the minor is living apart from the minor's parents, conservators, or guardians; and
3. Are self-supporting and managing their own financial affairs.

When the minor petitions the court, he or she may do so under his or her own name. In other words, the parents/guardians/conservators of the minor do not have to initiate the lawsuit. However, the petition must be verified by a certain adult.

"Verification" means that someone has to sign a statement at the end of the petition wherein they swear or affirm that the facts given in the petition are within their personal knowledge and are true. The verification must be signed by a parent, conservator, or guardian of the child. If none of those folks can be found, then the amicus attorney (appointed by the court to represent the child) must investigate and verify the alleged facts.

The Court will appoint an amicus attorney to represent the minor at the hearing on this petition.

If a minor has a court order from another state, then subject to the limitations of that order and Section 31.006 of the Texas Family Code, that minor will retain his or her emancipated status in Texas once the minor registers the out of state order with the Texas courts.

3. Live to the Age of 18

Of course, this one seems obvious. But it's important to remember. Most of the inquiries I receive from minors who seek emancipation come from children who are already 17 and, on average, will be treated as adults for most purposes in just a few months. If you are going to be 18 in just a few months anyway, the burden of drafting a petition, paying a filing fee, getting an amicus attorney appointed, attending a final hearing, drafting an order, and getting it signed may be more than the benefit of early emancipation.

Free Statutory Durable Power of Attorney Form

The word "attorney" originates from the idea of someone standing in your place and speaking for you. When you hire an "attorney" to go to court for you, that person stands in your place before the judge and speaks on your behalf.

When you give someone your "Power of Attorney," you give them the authority to stand in your place to make decisions and speak for you. There are several different types of Power of Attorney. One type, called a Durable Power of Attorney or sometimes just Power of Attorney, authorizes a named individual to stand in your place and make certain kinds of decisions regarding money, business, land, government benefits, and retirement benefits.

In Texas, the state legislature has prescribed a particular form that can be used to grant that authority to someone. Because the form was created by a statute, it is more fully referred to as a Statutory Durable Power of Attorney.

Power of Attorney forms abound on the Internet. Some are proper for Texas, most are not. When you need a Power of Attorney, you tend to need it quickly. If you don't have an attorney to help you get it right, you might end up with an ineffectual document that fails to suit your needs. Usually, by the time you find this out, it's too late.

Luckily, I have provided a free power of attorney form that anyone can use. All you need to do is answer a few questions, submit your answers to my proprietary form assembly system, and you will receive a legally effective form, filled in with your information, by email within a few seconds.

THREE STEPS TO AN EFFECTIVE POWER OF ATTORNEY

FIRST: Fill out the on-line questionnaire. Be certain to include a valid email address because the completed form will be emailed to you. Don't worry. We don't use this for marketing purposes. We will not contact you for any reason unless you ask us to, nor will we sell, rent, give or otherwise share your contact information with anybody else. Your privacy our our credibility as discrete attorneys are very important to us.

SECOND: Once you receive the completed document in your email, you will see a list of powers that you are granting to your named agent. (The "agent" is the person you are authorizing to act on your behalf.) You can draw a line through any power that you do NOT want that agent to have.

THIRD: Once you have read the form and feel like you understand it, sign it and provide a signed copy to your agent.

That's all there is to it!

There are other types of powers of attorney such as Health care Power of Attorney that authorizes your named agent to make health care decisions for you when you are not able to do so. If you need more comprehensive planning, please contact a good attorney in your area and have your documents put together by a professional.

Free Original Answer / General Denial

If you have been sued or served with papers in a divorce case or another type of family law case, you must file a document called "Original Answer" within about 20 days. (It's actually 20 days from when you were served plus the following Monday.) Some attorneys refer to the Original Answer as a "General Denial." Both terms are accurate.

If you do not file an answer by the deadline, the court can render a default judgment against you. That means that if you do not file your answer on time, the other side can get whatever they asked the court for to begin with. There are ways to get out of that mess if you find yourself defaulted, but you have to act quickly, hire a good family law attorney, and hope for a merciful judge.

Rather than leave it to chance, just file your answer on time. It's very simple.

1. Draft an original answer. You can get a form from the county law library or you can generate a free form on my family law web site: http://www.powerdaley.com/home/resources/original-answer-form
2. Once you draft the document, print 3 copies and sign each one.
3. Take all three copies to the district clerk's office. The address will be on the front 1 or 2 pages of the papers you were served with.
4. Hand all three copies to the clerk. The clerk will filemark all three and give two copies back to you.
5. Keep one of the copies with your papers.
6. Mail the other copy to the address shown at the bottom of the pleadings you were served with.

Above all, file your original answer--even if you are past the deadline. There's no reason not to file an answer when the stakes are so high and a free original answer / general denial form is just a click away.

Deviation from Standard Possession Order

A frequent question is whether parents can deviate from the standard possession order. According to the editors of Sampson & Tindall's Texas Family Code Annotated, "The standard possession order has become a way of life for family law practitioners." It has also become a way of life for many families in Texas. But are we trapped by the Standard Possession Order? No.

Two Ways to Deviate from the Standard Possession Order

While the Standard Possession Order is found in most divorce decrees, parents are allowed to deviate from the Standard Possession Order in two important ways. First, parents can agree to put different terms in their final order (divorce decree or final order in suit affecting the parent-child relationship (SAPCR)) and second by agreement as time goes on.

1. Final Order

The state legislature has instructed judges to impose the Standard Possession Order unless the party seeking a different possession order can show by clear and convincing evidence that another arrangement would be in the child's best interest (Texas Family Code § 153.252), the Standard Possession Order is just unworkable, perhaps due to the parties' work schedules (§ 153.253), the child is less than 3 years old (§ 153.254), there is a recent history of family violence (§ 153.004), or upon the agreement of the parties (§§ 153.007, 153.255).

That last reference (§ 153.255) gives parents the power to be as creative as they want to be in determining how to share time with their children. That section of the Texas Family Code tells parents that if they want a week-on/week-off possession schedule or a 2-2-3 possession schedule, or any of the other myriad schedules attorneys, counselors, and parents have invented, they are free to put that in their final orders and the court has the power to approve those agreements by adopting them as the final order of the court.

If parents know that the standard possession order will not work for them, they should work hard to craft an agreement that will work. The reason for this is explained below.

2. By Agreement from Time to Time

Every possession order must contain a provision that tells parents that they can do whatever they want to do with regard to sharing time with the children as long as they both agree to what that is. When the parents are not able to agree, then the possession order found in the court's order kicks in. (see Texas Family Code § 153.311)

That means that even if a standard possession order was included in the final decree of divorce or final order in a SAPCR, the parents can deviate from that order any time they want--they just have to be in agreement. Parents do not need the court's permission to deviate from the standard possession order nor do they have to notify anyone. This can be done through a simple email exchange such as this:

DAD: I have to travel out of town on the first weekend of next month, so I won't be able to pick up the children. Is it OK if we switch weekends and I take them the second weekend?


MOM: Yes, that's fine.

(Wouldn't it be great if all communication between parents were this smooth?)

Plan Ahead

One might think, "With this kind of flexibility built into possession orders, why worry about it too much? If the standard possession order is not going to work, we can just deviate from it!"

True in theory, but not always in practice.

Often when parents can't agree on what to do with regard to sharing time with the children, one or the other gets frustrated and says, "Forget it. We're just going to follow the order." Oops! If the parties knew that a standard possession order would not work because one parent works every weekend, but nonetheless adopted a standard possession order in their final orders, they will have created a difficult problem. If the parents adopted a possession order that won't work, counting on the built in flexibility of § 153.311, they don't have much choice but to go back to court if they can't agree on how to modify the child-sharing schedule.

LESSON: If you know the standard possession will not work, do not just blindly include it in your final order if you can get the other party to agree to something else. If you can't get the other party to agree to a workable order, don't be afraid to go to trial and explain to the judge why the standard possession order won't work for you.

Spousal Maintenance Awarded on Wife's Testimony

OWEN v. OWEN

No. 05-09-00709-CV

Court of Appeals of Texas, Fifth District, Dallas.

June 22, 2010

What Constitutes Sufficient Evidence to Support an Award of Spousal Maintenance?

The Texas Family Code provides a list of factors the court can consider and a few elements that must be satisfied. One combination is to have been married for at least 10 years and be disabled to the point that you are not able to earn enough money to cover you basic living expenses. Tex. Fam. Code Ann. § 8.05.

In Owen v. Owen, the husband and wife sought a divorce. The marriage had lasted at least 10 years and the wife testified that, due to the injuries she received in a head-on car collision years earlier, she was not able to work. The husband testified that she had worked, off and on, but when she would become bored with a job, she would quit.

Wife testified that her mortgage payment was $750 per month and she had a truck payment. As income, she had a roommate who paid $100 per month in rent and bought some groceries. The wife planned to enroll in the foodstamp program and other welfare programs, but had not yet been successful in doing so.

Husband on the other hand made $5,500 per month and had monthly living expenses of about $2,300.

The trial court awarded the wife $1,000 per month in spousal maintenance, presumably indefinitely because it would have been based on her disability, and husband appealed.

Proof Required to Establish Disability

The husband testified that wife could work but wouldn't and wife claimed that she couldn't. Husband's first complaint was that the trial court abused its discretion by awarding spousal maintenance on such weak evidence. However, the appeals court pointed out that all that is necessary to establish injury or disability is the testimony of the injured party and that such testimony, at the discretion of the finder of fact, can over power directly contradictory expert medical testimony. Pickens v. Pickens, 62 S.W.3d 212, 216 (Tex. App.-Dallas 2001, pet. denied).

Here, the trial court must have found wife's testimony to be credible both in terms of her disability and the extent of her basic monthly living expenses. Therefore, the trial court did not abuse its discretion in awarding spousal maintenance.

Spouse's Living Arrangements - Lack of Evidence on the Record

The spousal maintanence award can be denied if the spouse seeking maintenance engages in conjugal cohabitation or remarries. Here the wife was not remarried (this was an original petition for divorce). In his brief to the appeals court, the husband claimed to have "personal knowledge" that wife's relationship with her roommate was romantic in nature. However, he apparantly did not introduce any evidence to that effect at trial and therefore the record available to appelate review did not contain any evidence in support of that assertion.

Lessons Learned

1. As always, credible testimony trumps less credible testimony.
2. Make sure ALL of your evidence is on the record so that it's available to the appeals court for review.
3. Hire a competent attorney if you are going to court. Undoubtedly the husband hired an attorney qualified to practice in the courts in Texas, but his attorney was from a firm that primarily engages in immigration matters. That did not make her incompetent, but it might have made her unsuitable.
4. Tell your attorney all the facts in your case BEFORE trial starts. The husband apparently did not tell his attorney about his suspicions of his wife's romantic cohabitation--or if he did, that's all he had: suspicions.