Texas Divorce Tips
One divorce attorney's reactions to family law issues.
Tuesday, September 8, 2009
No Primary
The legislature just meets every two years, but when they meet they always make a lot of changes to the Texas Family Code. This time most of the changes were minor, or about cleaning up language, or don't really deal with the kinds of family law that I practice, Civilized Divorce. There was, however, one change that can affect my clients. For divorces filed on or after September 1, 2009, the parties may agree not to name either parent as the parent who has the right to determine the primary legal residence of the child, provided that the parents do agree that the residence of the child shall be restricted to a specific geographic area, such as Collin and contiguous counties.
Many parents would be negotiating the terms of divorce, and neither party wanted the other to "win" on the right to determine the legal residence of the child, even though the parents were still pretty agreeable on the terms of possession for the children. But mediators would have to keep sending them back in to reach an agreement, because the law previously required that one party be named as the "primary" (the parent with the right to determine the primary legal residence of the child).
So, now, if this is the only thing keeping parties from settling, they can agree that neither parent has the right to determine the primary legal residence of the child.
Now some folks will see this as the key to also having no child support. Well, the parties can agree that there will be no child support, but that's almost never what a judge would do if the case came down to a trial. There has been a LOT of litigation about which parent is responsible for what expenses of the child, whether the other parent has an obligation to contribute, and whether the person receiving child support is required to give an accounting of how child support money was spent.
The courts found long ago that the way to stop all the squabbling about expenses for the children is to make one parent responsible for most of the expenses of the child (school supplies, clothing, etc.) and for the other parent to pay child support. The amount of child support is based on the income of the person paying support. And the person receiving support does not have to account for the money. And the obligation to pay for school supplies and clothing has nothing to do with who has the right to determine the legal residence of the child, or even how many nights a year the child spends at a particular parent's house. So, while the parties can agree that no child support is paid, if a judge has to decide, he or she will choose the option that makes it less likely that the same folks will be back in court in a few months arguing over child support or the expenses of the child: one person will be required to pay child support.
Many parents would be negotiating the terms of divorce, and neither party wanted the other to "win" on the right to determine the legal residence of the child, even though the parents were still pretty agreeable on the terms of possession for the children. But mediators would have to keep sending them back in to reach an agreement, because the law previously required that one party be named as the "primary" (the parent with the right to determine the primary legal residence of the child).
So, now, if this is the only thing keeping parties from settling, they can agree that neither parent has the right to determine the primary legal residence of the child.
Now some folks will see this as the key to also having no child support. Well, the parties can agree that there will be no child support, but that's almost never what a judge would do if the case came down to a trial. There has been a LOT of litigation about which parent is responsible for what expenses of the child, whether the other parent has an obligation to contribute, and whether the person receiving child support is required to give an accounting of how child support money was spent.
The courts found long ago that the way to stop all the squabbling about expenses for the children is to make one parent responsible for most of the expenses of the child (school supplies, clothing, etc.) and for the other parent to pay child support. The amount of child support is based on the income of the person paying support. And the person receiving support does not have to account for the money. And the obligation to pay for school supplies and clothing has nothing to do with who has the right to determine the legal residence of the child, or even how many nights a year the child spends at a particular parent's house. So, while the parties can agree that no child support is paid, if a judge has to decide, he or she will choose the option that makes it less likely that the same folks will be back in court in a few months arguing over child support or the expenses of the child: one person will be required to pay child support.
Labels: child support, primary conservator, primary parent
posted by Hal Davis | 11:38 AM
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