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Name: Hal Davis

Location: Plano, Texas, United States

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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.

Labels: child support, primary conservator, primary parent

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.

Labels: additional child support, agreed divorce, agreement, child support, child support guidelines, divorce, Plano, Texas