Tag: Collaborative Divorce

Child Support: Additional factors for the court to consider

As discussed in a previous blog post, courts generally calculate child support based upon the Guidelines found in the Texas Family Code.

There is, however, a section of the family code that allows a court to determine if it would be “unjust or inappropriate under the circumstances” to apply the Guidelines.

Texas Family Code Section 154.123 provides “Additional Factors for Court to Consider” when determining the appropriate amount of child support.

Per the Family Code, the following are the factors that a court “shall consider evidence of”:

(1)  the age and needs of the child;

(2)  the ability of the parents to contribute to the support of the child;

(3)  any financial resources available for the support of the child;

(4)  the amount of time of possession of and access to a child;

(5)  the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6)  child care expenses incurred by either party in order to maintain gainful employment;

(7)  whether either party has the managing conservatorship or actual physical custody of another child;

(8)  the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9)  the expenses for a son or daughter for education beyond secondary school;

(10)  whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11)  the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12)  provision for health care insurance and payment of uninsured medical expenses;

(13)  special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14)  the cost of travel in order to exercise possession of and access to a child;

(15)  positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16)  debts or debt service assumed by either party;  and

(17)  any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

As illustrated by number 17, this list is non-exhaustive. Per the Texas Family Code, all evidence on the subject is to be considered. In reality, however, whether the court will allow you to introduce evidence of any of these factors depends upon the judge before whom the case is tried, subject to review by an appellate court.

To discuss child support with any of the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. Our web address is www.dfwdivorce.com.

Guideline Child Support: How does it work?

The Texas Family Code is an amazing legislative work. It covers divorce, annulment, how to divide stock options, rules regarding whom you can marry and when, provisions for child custody, grandparent rights, and more. There may not be any part of the Family Code, however, that causes as much heartache as child support.

For those getting child support, it is often either not enough or far more than necessary. For those paying it, the amount is almost always more than desired.

Texas courts typically award child support using the Guidelines for Child Support found in Chapter 154 of the Texas Family Code.

The use of the Guidelines is “rebuttably presumed in best interest of child.” That means that a court can use the guidelines and will virtually never be reversed by an appellate court for having done so. (For a discussion of Best Interest, see this previous blog post.)

The basics of the Guidelines are this:

  1. Determine the number of children for which support is being considered.

The amount of guideline support varies based upon the number of children in the case being considered. For one child, the starting percentage is 20%. For two, it’s 25%. And it continues to go up by 5% for each child, up to five children. For six or more children, the guideline amount is to be “not less than” it would be for five.

  1. Determine how many total children the obligor is responsible for.

The person paying the child support is known as the obligor. The next step to determine the guideline amount is to determine how many children the obligor has a legal duty to support. That number includes the children in the case for which support is being calculated, and any others that he or she is legally obligated to support, whether the support is currently order or being paid. The number does not include step-children. The percentage determined in step 1, gets reduced if there are additional children for whom support is ordered.

  1. Determine the Net Resources of the Obligor.

In Texas, for Guideline support, only the income or other resources of the obligor are considered. That means that even if the obligee – the one getting the support – is a multi-millionaire and the obligor is making minimum wage, the obligor must still pay. “Net Resources” basically includes all income of the obligor, regardless of the source of the income. There is often a misunderstanding about how “net” resources, as opposed to “gross” resources are determined. In short, the net amount is the amount that the Attorney General’s chart says should be the net, not what the net is in reality.

  1. Apply the appropriate percentage to the amount of the net resources to which guidelines apply.

There is not a maximum amount of child support – a court can order a person making $5,000.00 per month to pay $4,000.00 per month in child support. But, there is a “presumptive max” of child support, and that is the percentage obtained in 1 and 2 applied to maximum amount specified in the Family Code. The maximum number is designed to go up over time.

There are provisions in the code for the court to disregard the guidelines, and for the court to award more or less than what the calculation detailed above would lead to. Additionally, as with virtually everything in family law, this just covers the basics. There is a lot more to it.

To discuss any of this with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418. You can write us anytime at lawyers@dfwdivorce.com or find us on the web at www.dfwdivorce.com.

Collaborative Divorce: Fast Five Questions and Answers

There are lots of things about Collaborative Divorce that are misunderstood. These Five Questions and Answers should clear up some of the more common misconceptions:

1. Can my spouse and I do a Collaborative Divorce without lawyers?

No. The term Collaborative Divorce does not mean the same thing as Amicable Divorce, Agreed Divorce, or Uncontested Divorce. A Collaborative Divorce may in fact be amicable. If it ends with an Agreed Decree, then it is an agreed divorce. And a Collaborative Divorce may be more or less uncontested – for more on that see this earlier Blog post.

But, a Collaborative Divorce in Texas is by definition a case that is conducted pursuant to the Collaborative Family Law Act, which is Title 1A of the Texas Family Code. Section 15.052 of Title 1A states that a Collaborative Divorce is one “in which parties: (A) sign a collaborative family law participation agreement; and (B) are represented by collaborative family law lawyers.”

So, when a potential client comes to an attorney and says, “I have been doing a Collaborative Divorce with my husband/wife and his/her lawyer, but now I think I need to get a lawyer,” the potential client is at best mistaken as to what is going on, and at worst being defrauded.

2. Do we have to use Neutrals in our Collaborative law case?

The traditional Texas model for Collaborative Divorce is two lawyers, plus two neutrals – a Financial Professional and a Mental Health Professional.

The Financial Professional is tasked with gathering and assembling the financial information of the parties, helping the parties work on budgeting, and offering expertise on various financial matters.

The Mental Health Professional is not a part of the process to psychoanalyze the parties. His or her job is to help the parties develop a parenting plan, if there are children involved, conduct the meetings that are a part of the Collaborative Process, and offer suggestions for matters that will help meet the parties’ personal goals, e.g. closure with step-children.

But, there is no requirement that neutrals be used. Or that both neutrals be used. If the parties and the attorneys agree, a Collaborative Divorce can proceed without one or both of the traditional neutrals.

3. Do I have to use an attorney from the list that my spouse gave me?

No. Although many Collaborative Divorce attorneys are members of “Practice Groups,” not all are. Moreover, there is no requirement that a husband or wife choose a Collaborative attorney from the list provided by his or her spouse.

There is no requirement to choose an attorney from any Practice Group and the choice of an attorney is completely up to the party.

4. Will a Collaborative case be faster than a non-collaborative case?

There is no way of knowing. A collaborative divorce may be faster than a litigation case, but it may also take more time. A non-collaborative divorce must last for at least 60 days, unless a waiver is obtained based upon family violence. How much longer a case lasts depends upon whether the parties are able to settle and when. For more on the stages of a divorce, see this prior blog post.

It is unlikely that a Collaborative Divorce will take less than 60 days, but many Collaborative cases end far earlier than many hotly contested divorces.

5. Will a Collaborative Divorce be less expensive than a non-collaborative divorce?

Once again, there is no way of knowing. Collaborative Divorces involve a series of meetings with at least two attorneys, and probably two neutrals billing at hourly rates.

Prior to each meeting, there may be some telephone calls between the attorneys and their clients and between the Team of attorneys and neutrals – all billed at hourly rates. There may be pre-meetings of the Team before the Joint meetings of everyone, and there is typically a Team debriefing period after the meeting – all billed at hourly rates.

Given that it is unlikely that a Collaborative Divorce would be wrapped up without at least three or four lengthy meetings, it’s not hard to see that there may be considerable cost to a Collaborative Case.

But, given that a non-collaborative case can involve lengthy hearings with a considerable number of hours spent in preparation by both sides, and can sometimes involve both parties hiring financial and/or mental health experts, it’s easy to see that in some cases Collaborative Divorce is much less expensive than non-collaborative divorce.

Bonus Question:

6. Is Collaborative Divorce only appropriate if there is no conflict?

No. Collaborative cases can have much of the same angst that traditional cases have – sometimes more. A Collaborative Divorce has many benefits that traditional cases do not, and they can be successfully completed even where the parties have serious disagreements and issues.

To discuss your case and whether it would be a good candidate to handle in the Collaborative Model, call us at 817.261.4333 or 214.414.0418. You can also write us at lawyers@dfwdivorce.com or find us on our website www.dfwdivorce.com. We are Beal Law Firm, PLLC.

Is Collaborative Divorce the Same Thing as Uncontested Divorce?

Recently, we conducted a very unscientific poll on the @BealLawFirm twitter account. The question asked was, “Do you know the difference between a Collaborative Divorce and an Uncontested Divorce?” The choices were: “1) Yes, 2) No, and 3) Aren’t they the same?” Fewer than 6 in 10 people even claimed to understand the difference between the two – and a huge percentage of the account followers are lawyers, law firms, etc.

So, with more than 4 in 10 people possibly not understanding the difference between the two – or even if there is one, it seems that Collaborative Divorce bears some explaining.

Collaborative Divorce is an alternative to traditional divorce. Traditional divorce is conducted in the litigation model, whereas Collaborative Divorce is an entirely different model.

In the Litigation Model, divorces typically move through several stages until the case is either settled or makes it to trial. The stages are:

  1. Negotiation between the parties;
  2. Negotiation between the attorneys;
  3. Mediation;
  4. Post-mediation negotiation; and
  5. Trial.

Throughout all of these stages, the parties can engage in formal discovery – including written interrogatories, requests for production, requests for admission, requests for disclosure, written depositions, and oral depositions – and/or ask the court to grant various requests in countless motions and hearings.

In a Collaborative Divorce, the parties agree that they will suspend their rights to engage in anything other than formal meetings between themselves and the rest of the collaborative team, which typically includes their attorneys and two neutral professionals. One of the neutrals is known as the Financial Professional (FP) – usually a CPA, CFP, or CDFA – and the other is the Mental Health Professional (MHP). Although the MHP is likely to be a psychologist or licensed clinical social worker, the role of the MHP is not to counsel or analyze any of the participants. Rather, the MHP’s job is to run the meetings and help the parties arrive at an agreement on parenting issues. The FP’s job is to gather the parties’ financial information and help construct current and proposed budgets.

So, with all that being said, what is a Collaborative Divorce? It is a series of meetings in which the parties attempt to arrive at an agreement on all issues in their case. Because the meetings and everything discussed at the meetings are confidential, should the process break down, the parties are free to re-enter the Litigation Model, but both of the Collaborative Attorneys MUST withdraw from representation at that point.

What is an Uncontested Divorce? It is an ill-defined term that everyone uses to describe a case in which the parties to a divorce argue to a lesser degree than the arguing that takes place in a divorce that is referred to as a Contested Divorce.

The terms do not mean the same thing, because typically when an attorney speaks of an Uncontested Divorce, he or she is talking about a case in which the parties are in the Litigation Model, but able to arrive at an agreement fairly early in the process. The term Collaborative Divorce is reserved for divorces that are being conducted in the Collaborative Model and under the rules for Collaborative Divorce promulgated in the Texas Family Code.

If you would like to discuss your needs with respect to a Collaborative Divorce, Uncontested Divorce, or Contested Divorce, please contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com.