Texas Divorce Tips
One divorce attorney's reactions to family law issues.
Tuesday, February 10, 2009
Extra child support in an agreed Texas divorce
I've got a Plano client right now who has reached an agreement with her husband for him to pay significantly more child support than the child support guidelines. And it occurs to me that her situation is instructive, from the questions I see in divorce forums.
Let me remind you that I'm only licensed to practice law in Texas, and can't speak to what the law is elsewhere.
First, this generally only happens in an agreed divorce. If it weren't agreed, and you went to trial, the judge would set the amount of child support, and would be guided by the child support guidelines passed by the legislature. In order to deviate from the guidelines, the judge would have to spell out his reasoning. And most judges will just use the guideline amount.
But the parties can agree that child support will be a figure significantly higher or lower than the guideline amount. The trouble is that the court retains jurisdiction to change child support until the child is 18 years old and has graduated high school. So, if the father agrees to pay child support of $2,500 per month when the guideline amount is the cap of $1,500 per month, he can come back to the judge a year after the divorce is final and ask the judge to reduce the amount of child support to the guideline cap ($1500 for one child). And the judge will almost certainly grant the request and reduce child support.
So, if you reach an agreement in a Decree for child support much more or much less than the guideline amount, you need to realize that this is not binding past a year or so, and either side can ask the judge to change the amount.
This is a particular challenge when folks try to use child support as a substitute for something else. I had a father of a 16-year old child who wanted to give the wife $24,000 extra from the property division in the divorce in return for not paying any child support at all. So, he was trying to use a disproportionate property division to prepay child support. Well, if the parties agreed, that's fine, but a year later the wife could have gone back to court and sought a modification from zero child support to whatever the guideline amount was. We went ahead and did the deal, but I just had to warn the father that if his ex-wife wanted to break the agreement, she could.
Another example: Dad wanted to help Mom get back on her feet financially (she hadn't worked outside the home in years), but Dad didn't want to structure it as alimony, perhaps because of the stigma of paying alimony, and perhaps because he didn't want to pay the legal fees to draw up the extra documentation for alimony. Guideline child support was $1200 per month, and Dad wanted to pay child support of $2200 per month for two years, and then have it drop back down to the guideline amount. Again, it was OK to do it this way, but Mom had to trust that Dad wasn't going to go back to court and seek to have child support reduced to the guideline amount.
Let me remind you that I'm only licensed to practice law in Texas, and can't speak to what the law is elsewhere.
First, this generally only happens in an agreed divorce. If it weren't agreed, and you went to trial, the judge would set the amount of child support, and would be guided by the child support guidelines passed by the legislature. In order to deviate from the guidelines, the judge would have to spell out his reasoning. And most judges will just use the guideline amount.
But the parties can agree that child support will be a figure significantly higher or lower than the guideline amount. The trouble is that the court retains jurisdiction to change child support until the child is 18 years old and has graduated high school. So, if the father agrees to pay child support of $2,500 per month when the guideline amount is the cap of $1,500 per month, he can come back to the judge a year after the divorce is final and ask the judge to reduce the amount of child support to the guideline cap ($1500 for one child). And the judge will almost certainly grant the request and reduce child support.
So, if you reach an agreement in a Decree for child support much more or much less than the guideline amount, you need to realize that this is not binding past a year or so, and either side can ask the judge to change the amount.
This is a particular challenge when folks try to use child support as a substitute for something else. I had a father of a 16-year old child who wanted to give the wife $24,000 extra from the property division in the divorce in return for not paying any child support at all. So, he was trying to use a disproportionate property division to prepay child support. Well, if the parties agreed, that's fine, but a year later the wife could have gone back to court and sought a modification from zero child support to whatever the guideline amount was. We went ahead and did the deal, but I just had to warn the father that if his ex-wife wanted to break the agreement, she could.
Another example: Dad wanted to help Mom get back on her feet financially (she hadn't worked outside the home in years), but Dad didn't want to structure it as alimony, perhaps because of the stigma of paying alimony, and perhaps because he didn't want to pay the legal fees to draw up the extra documentation for alimony. Guideline child support was $1200 per month, and Dad wanted to pay child support of $2200 per month for two years, and then have it drop back down to the guideline amount. Again, it was OK to do it this way, but Mom had to trust that Dad wasn't going to go back to court and seek to have child support reduced to the guideline amount.
Labels: additional child support, agreed divorce, agreement, child support, child support guidelines, divorce, Plano, Texas
posted by Hal Davis | 2:41 PM
Post a Comment