Texas Divorce Tips
One divorce attorney's reactions to family law issues.
Thursday, September 3, 2009
50% Possession = No child support?
One of the questions I get most often (especially from dads) is: "We've agreed on Joint Custody. That means I don't have to pay child support, right?"
Well, first, the question is wrong. "Custody" is a word that doesn't appear in the Texas Family Code, and really shouldn't be used in discussions about divorce. When one says "custody", he's usually talking about two different concepts: conservatorship and possession.
Conservatorship means the rights and responsibilities of each parent toward the child, such as the right to make educational decisions for the child, and the obligation to pay for health insurance for the child. The obligation to pay for the child's day care, after school care, school supplies, clothing, and karate lessons. The obligation to pay child support.
Possession refers to when each parent has the right to have the child with him or her.
Under a 50/50 possession schedule, most of the expenses of the child are not materially different from under a standard possession schedule. Paying for half the child's groceries isn't nearly as significant as the obligation to pay for school supplies, clothing, and so on.
Lawyers are trained to see how things can go wrong, and to try to limit those opportunities, or at least to provide for what can be done to remedy them. You don't need a lawyer to tell you to share the expenses of the child. But a lawyer will tell you that there has been a great deal of litigation (and attorney's fees) over who is responsible for what expenses of the child if the parents stop agreeing. After decades of litigation, the legislature set up the Texas Family Code to provide that one parent is responsible for the expenses of the child, and the other parent is responsible for paying child support. It just saves so much wrangling in the courtroom. You don't argue about whether $50 is too much to pay for jeans, or that the other parent bought a $40 shirt for the child. One parent pays child support per the guidelines, and the other parent buys whatever she/he believes is necessary (and that she/he can afford) for the child.
Note that the costs for providing for the child's after-school care, clothing, school supplies, extracurricular activities and such have little to do with whether the child spends 2 nights, 3.5 nights, or 5 nights a week with a particular parent. That's why a 50/50 possession schedule has nothing, directly, to do with whether child support will be paid.
Now, the parents can agree to darned near anything they want on conservatorship, possession, and child support. But a good lawyer will likely try to talk them out of an unusual arrangement, because the lawyer sees how many ways this can go wrong, and doesn't want to be accused of negligence when things fall apart and someone doesn't have a legal remedy. And, if you don't reach an agreement and you have a trial, the judge WILL order that only one parent will have the right to determine the legal residence of the child, and the other parent WILL have to pay guideline child support, and will have possession of the child according to the standard possession schedule.
Well, first, the question is wrong. "Custody" is a word that doesn't appear in the Texas Family Code, and really shouldn't be used in discussions about divorce. When one says "custody", he's usually talking about two different concepts: conservatorship and possession.
Conservatorship means the rights and responsibilities of each parent toward the child, such as the right to make educational decisions for the child, and the obligation to pay for health insurance for the child. The obligation to pay for the child's day care, after school care, school supplies, clothing, and karate lessons. The obligation to pay child support.
Possession refers to when each parent has the right to have the child with him or her.
Under a 50/50 possession schedule, most of the expenses of the child are not materially different from under a standard possession schedule. Paying for half the child's groceries isn't nearly as significant as the obligation to pay for school supplies, clothing, and so on.
Lawyers are trained to see how things can go wrong, and to try to limit those opportunities, or at least to provide for what can be done to remedy them. You don't need a lawyer to tell you to share the expenses of the child. But a lawyer will tell you that there has been a great deal of litigation (and attorney's fees) over who is responsible for what expenses of the child if the parents stop agreeing. After decades of litigation, the legislature set up the Texas Family Code to provide that one parent is responsible for the expenses of the child, and the other parent is responsible for paying child support. It just saves so much wrangling in the courtroom. You don't argue about whether $50 is too much to pay for jeans, or that the other parent bought a $40 shirt for the child. One parent pays child support per the guidelines, and the other parent buys whatever she/he believes is necessary (and that she/he can afford) for the child.
Note that the costs for providing for the child's after-school care, clothing, school supplies, extracurricular activities and such have little to do with whether the child spends 2 nights, 3.5 nights, or 5 nights a week with a particular parent. That's why a 50/50 possession schedule has nothing, directly, to do with whether child support will be paid.
Now, the parents can agree to darned near anything they want on conservatorship, possession, and child support. But a good lawyer will likely try to talk them out of an unusual arrangement, because the lawyer sees how many ways this can go wrong, and doesn't want to be accused of negligence when things fall apart and someone doesn't have a legal remedy. And, if you don't reach an agreement and you have a trial, the judge WILL order that only one parent will have the right to determine the legal residence of the child, and the other parent WILL have to pay guideline child support, and will have possession of the child according to the standard possession schedule.
posted by Hal Davis | 9:43 PM
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